A couple of weeks ago, I asked the question of whether occupational licensing for lawyers really benefits consumers. While I’m convinced that the license requirement makes it likelier that people will get competent legal help, it also adds a powerful level of cost, by foreclosing other options that consumers might legitimately want to choose.
In Avvo’s comments to the ABA Future of Law Commission, I observed that if we were to analogize the legal industry to the fashion industry, we have given consumers a choice between only two, starkly different options: haute couture or making their own clothes.
Just as we’d all look a little better if we could walk around in custom-tailored clothes, we would all be better-served – at least insofar as the contours of our legal solutions would tightly hug the curves of our specific situations – if given the luxury of custom legal work.
But just as with custom tailoring, most people can’t afford that level of fit and quality. And most people are OK with the tradeoffs between full legal representation and something a little more, shall we say, off-the-rack – at least for a whole range of straightforward and relatively low-risk matters.
Take, for example, “Legal Docs By Me,” which offered, for a flat fee, professional help completing basic forms like change of name applications. For that, the company’s owner, Derek Distenfield, was prosecuted for practicing law without a license.
Was the complaint against Legal Docs By Me filed by a customer unhappy with the service provided? Of course not – it was filed by the local bar association.
As Tom Gordon points out in this recent WSJ editorial, the definition of “the practice of law” is quite vague. It’s been left up to the courts to define, and has largely been used, by lawyers, to try to define within the exclusively cartel of the lawyers any work remotely related to legal matters.
Like help filling out forms, or basic guidance.
Look, I respect lawyers. In fact, I respect them enough to say that we should rise above this pettiness – our education, judgment and experience is worth more than simply helping consumers fill out forms. Let’s preserve a shred of dignity and cede some ground that it’s petty and pointless to fight over.
Yes, I know that threatens some lawyers’ livelihoods. But I’m also confident those folks can move on to something that makes better use of their talents.
So what would a meaningful license for the practice of law look like? It would start with a better, more limited definition of what, exactly, the “practice of law” really is.
Representing clients in court – that’s what a lot of people think of when they think of “the practice of law,” and it strikes me as the sort of thing that should go to the heart of what it means to practice law. It’s the combination of zealous advocacy and preservation of the clients’ interest above all else. It doesn’t take much to make the case that this should constitute “the practice of law.”
Advice and Counsel
This is where it gets a bit trickier. Advice and counsel may be the biggest single area of legal work present today. It includes a wide swath of activities: advising clients in putting contracts together, working to comply with government regulations, to form business entities and combinations, to shape company direction, and to prepare for litigation. Much of this work is what we would think of as “the practice of law.” It involves both the application of specialized legal training and the presence of a client relationship of trust and reliance.
But then there’s all of the day to day-to-day stuff.
Should it really be considered “the practice of law” for someone to help another person out with the bureaucratic paperwork required to facilitate a no-fault divorce or guardianship paperwork? Or to do a name change, or to apply for disability benefits?
Our increasingly bureaucratic world requires more and more paperwork. And ironically, the impact of all this red tape falls most heavily on those least able to pay for professional help in dealing with it. Those with steady incomes, stable marriages, and reasonably trouble-free children have little, if any, exposure to this world – while those going through a flood of troubles end up encountering it at every turn.
But should they want help – of any kind – in dealing with it, their choices are limited to dealing with it themselves or choosing the black box of professional legal services. It’s back to do-it-yourself or haute couture.
Limit the License
Given the expansiveness of field-claiming by the legal profession, I propose a rather radical adjustment: limit the definition of “the practice of law” – and, correspondingly, the activities for which a lawyer is required – to those situations where third party representation is involved. That’s mostly going to be courtroom and administrative agency advocacy.
Anything else that smells “legal?” Anyone can do it.
Stifle the gasps; this wouldn’t be the end of the world for lawyers. Sophisticated users of legal services would go right on insisting that their transactional and counseling services be rendered by people with specialized legal training and credentials. The bars could go right on limiting their membership exactly the way they do today. Their members could use that as a marketing/quality advantage.
Of course, business would quickly dry up for attorneys operating in areas where there is little need for legal training. People who are paying for a lawyer only because no alternatives are available would swiftly migrate to lower cost services. But for those offering services really involving the application of legal skill and training? Most people who currently pay licensed attorneys to do this work would continue to do so (although attorneys would probably have to work a little harder to market WHY it’s important to choose a licensed attorney).
Limiting what’s included within the definition of “the practice of law” (for which a license would be required) would also largely solve for the rigid geographic licensing rules. Today, lawyers bend their minds around whether they can telecommute from a neighboring state, or live in one state where they aren’t licensed while operating a law practice in the state where they are.
It’s the height on inanity that anyone burns any brain cells whatsoever thinking about this, but the bar rules are what they are, and there have been plenty of cases of bar regulators mechanically interpreting the rules in ways that would prevent such practices.
Taking such a stance requires going WAY down the hyper-regulatory rat hole. First, you’ve got to assume that licensing in one state somehow evidences a level of competence and familiarity with that state’s law and procedure that a lawyer licensed in another state would not possess. That’s a huge assumption, given how expansive and specialized the law has become. A Washington-licensed divorce lawyer would be far more competent to handle a California divorce than I would be, but guess which one of us is authorized by the regulatory authorities to handle that matter?
Second, you’ve got to blind yourself to the question of consumer harm. Telecommuting lawyers? Lawyers living in one state and working in another? There is zero impact on consumers; it’s the logic of grocery clerks and bureaucrats that has anyone worried about such matters.
If, however, we limit the definition of “the practice of law” to representation for courtroom advocacy, there’s no need to worry about these demarcations – and we’re back to dealing with a distinction that actually means something. In the courtroom, local knowledge – particularly of state procedural rules – matters a lot. And a lawyer wouldn’t be able to appear in a state’s courtrooms without being licensed there (or, perhaps, getting authorization to appear pro hoc vice). It’s a simple, bright-line test. For anything else – whether counseling or telecommuting – it wouldn’t matter where the lawyer might be licensed, as those activities are not “the practice of law.”
What do you think? Why not just take licensing back to the core of what it means to be a lawyer?