Several states, including California, Arizona, and Utah, are considering fundamental changes to their current rules of professional conduct that would greatly expand the nonlawyer practice of law. The goal of these proposals is to address the ever-worsening access-to-justice problem. While the proposals vary and remain somewhat undefined, they generally consist of two principal changes: (i) expanding nonlawyers’ ability to provide legal services through paraprofessionals and advanced technology; and (ii) allowing nonlawyers to own interests in companies and firms that provide legal services.
For generations, attorneys have had a monopoly on the practice of law and unfortunately, as a profession, we abused that privilege. Attorney rates and the cost of litigation have skyrocketed, pricing many individuals and small business out of the courts, with no ability to seek justice and enforce their rights. The proliferation of alternative-dispute-resolution companies has not helped matters, as many practitioners will attest that private arbitration can be as expensive (if not more) than courtroom litigation.
There is no one-size-fits-all solution to the current access-to-justice problem. If you look at the lack of access to justice as primarily an economic problem, then creating a framework to allow lower-cost legal-service providers to enter the market may help alleviate the problem. As with most well-intentioned ideas, however, the devil is in the details. As we have seen during the mortgage crisis, unregulated alternative legal-services providers, such as the foreclosure-avoidance companies, can wreak havoc on those most vulnerable.
Thus, while the pending proposals have discussed the need for regulation, none of them has yet figured out what that regulation should look like. Will state bars regulate nonlawyer practice in the same manner as lawyers? Will these states create new regulatory agencies? Will nonlawyers be held to the same standard of care as lawyers? Will nonlawyers have malpractice insurance, so that those injured by nonlawyer negligence can recover meaningful damages? Will communications between clients and nonlawyer legal-service providers be privileged? How can lawyers and nonlawyers compete on an even playing field? How can nonlawyers advertise and market legal services?
Without question, the lack of access to justice is a substantial problem and consideration of outside-the-box solutions should be applauded. Regardless of your position on these current proposals, it seems certain that fundamental changes are coming to the practice of law. We need to be sure, however, that those outside-the-box solutions will actually make the situation better. We should also look at why the cost of litigation is so expensive and what can be done to modify the current rules of procedure so that more people have access to fully trained and regulated lawyers.
Michael S. LeBoff is a partner at Klein & Wilson in Newport Beach, California, and cochair of the ABA Section of Litigation’s Professional Liability Litigation Committee.