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July 01, 2014

Ethics: The Litigator’s Monopoly

Bruce A. Green

In competing for clients against other professionals, lawyers have an edge for various reasons, including that a law license connotes expertise and integrity and that the attorney-client privilege protects their confidential communications with clients. But in some contexts, a law license gives lawyers more than just a competitive advantage. It grants us a monopoly, because laws regulating the unauthorized practice of law (UPL) forbid non-lawyers from providing legal services.

There are certainly ambiguities about which professional services comprise “legal services” for purposes of UPL laws. At the margins, it is hard to say what work lawyers exclusively may perform. The American Bar Association once tried to define the practice of law but gave up. In part because of ambiguities, UPL laws are not strictly enforced. Moreover, lawyers have increasingly ventured into areas, such as lobbying, in which there can be no plausible claim to exclusivity.

Even so, it has long been assumed that if any one service constitutes the practice of law and is therefore off-limits to non-lawyers, it is litigation. No federal judge would let an accountant file a notice of appearance on a party’s behalf. Deal lawyers might worry about competition from financial services firms and other professionals, but trial lawyers don’t worry that others will encroach on their turf.

Perhaps that is folly. Papers delivered at a recent Fordham Law School conference, “The Legal Profession’s Monopoly on the Practice of Law,” published this year in the Fordham Law Review, showed that trial lawyers face challenges just like other lawyers.

Part of the problem is that trial lawyers have priced themselves out of the market, at least as far as low- and middle-income clients are concerned. And there will never be enough publicly funded legal services lawyers and pro bono lawyers to go around. Consequently, courts, bar associations, and legal services providers look for other ways to help people who have legal problems. The need for affordable legal assistance increasingly trumps the need for client protection that is the premise of UPL laws.

The challenge comes from many quarters. U.S. trial lawyers already know that much of their work outside the courtroom, such as document review, is increasingly under threat from computers to the extent it hasn’t been taken away by foreign lawyers, non-lawyer professionals, and para-professionals. But a paper presented by John McGinnis (Northwestern University) and Russell Pearce (Fordham University) predicts that this is just the beginning: As computers become faster, they will have an increasing role not only in discovery but in conducting legal research, drafting briefs and memoranda, and even predicting the outcomes of lawsuits.

Trial lawyers might assume that, at the very least, they have an exclusive right to stand up for others in adversary proceedings. But that is not true either. Non-lawyers are allowed to serve as advisors and advocates in various adjudicative settings under laws that trump UPL provisions. For example, as outlined in a June 2013 New York City Bar report, “Narrowing the ‘Justice Gap’: Roles for Nonlawyer Practitioners,” non-lawyer guardians ad litem (GALs) assist impaired litigants in eviction proceedings, nonprofit counseling agencies assist borrowers in foreclosure cases, court-appointed special advocates (CASAs) stand up for abused and neglected children in family court, accredited and qualified representatives provide assistance in immigration cases, and non-lawyers represent parties in Social Security hearings and a host of other federal and state administrative proceedings.

Moreover, there is pressure to expand non-lawyer advocates’ roles. At the Fordham conference, Jack Sahl (University of Akron) and others discussed Washington State’s new experiment in which trained providers called limited license legal technicians (LLLTs) will be certified to appear as advocates in domestic relations matters. Deborah Rhode (Stanford University), another Fordham conference participant, has long encouraged further experimentation along these lines.

The Fordham conferees debated whether the erosion of the lawyer’s monopoly is good or bad for the public. Professors lined up on both sides. But the debate may turn out to be academic.

The practical reality is that parties to civil lawsuits and administrative proceedings need help, if not from lawyers, then from someone else. It is hard to argue that, in the name of client protection, UPL laws should compel individuals who cannot afford lawyers to fend for themselves in eviction cases, family court proceedings, consumer litigation, and other civil matters when pro bono lawyers and publicly funded lawyers are nowhere to be found. One day, something’s got to give.

And one might then ask: If computers and non-lawyer professionals and other service providers are allowed to stand up for the most vulnerable and unsophisticated individuals in civil disputes, why shouldn’t non-lawyer advocates be allowed to represent those, such as corporations and well-to-do individual parties to commercial disputes, who are best able to make informed choices and protect their own interests?

Bruce A. Green

The author is the Louis Stein Chair at Fordham University School of Law in New York City.