I began reading legal ethics cases as a law student in 1973—one year before the first ABA National Conference, ten years before the Model Rules, 21 years before the Michael Franck award and 37 years before the Rosner award. I love this field of practice because it allows me to help people solve real world problems in real time in ways that are good for them and for others. In my time today, I would like to speak about two current issues and about two people who helped me early on.
My first issue stems from the explosive growth of “do it yourself” computer programs and sales of legal or law-related services by non-lawyers directly to customers. Like Isaac Asimov’s laws of robotics, I wish to propose three rules to help guide these developments:
- Don’t define the unauthorized practice of law, or UPL, as the application of law to fact. Historically speaking, this has never been “the” or “a” universally applied test even though we sometimes speak of it that way. It is at most a rhetorical flourish that we trot out when we want to say “no” to something and that we ignore when we want to say “yes.” When, for example, my wife and I remodeled our kitchen, I asked our contractor whether certain changes would require a building permit. If the contractor had replied that he couldn’t answer my question because he was not a lawyer and therefore couldn’t apply legal principles to our particular factual situation, we would have found another contractor. Or consider a retail salesperson who sees a shoplifter leaving a store with unpaid merchandise and yells, “Stop, thief.” We wouldn’t expect the police to arrest the salesperson for UPL.In these and thousands of other situations, we balance benefits against risks, which is all that a fair reading of the substantive law actually requires. There is neither reason nor need for UPL to include the application of law to fact when the principles of law at issue are easily understood, are generally known 1 or are ancillary to an otherwise lawful business.
- Absent clear risk of harm to third parties or the legal system, services of equal or better quality that can be provided by computers or non-lawyers should be lawful. Lawyers exist to serve clients, not vice versa.
- Consider regulation. Many health care products are sold over the counter, but when we walk into urgent care centers, we expect licensed health care professionals. The evolving legal services marketplaces will require thought to figure out what, if any, regulation is needed for which activities. If, for example, non-lawyers will be allowed to help people prepare estate plans, we will want these non-lawyers to have training and won’t want them to have multiple fraud convictions. We might also want to think about whether these non-lawyers should be subject to the same standard of care as lawyers.2 And we might want to consider whether these non-lawyers’ communications with their customers or clients should be subject to privilege protection.
My second issue concerns a special kind of effort in aid of diversity and inclusion. Most of us know the history of discrimination against our own personal group, but few of us take time to learn the histories of others. Anyone can stand up for the right thing when times are relatively easy. My concern is that without sufficient meaningful and empathic learning to be able to know enough about each other’s histories, we may be unable to stay the course if, as presently seems possible, times get much tougher than they are now. It is good for the soul and the bonds of citizenship to know more about each other, but I also mean something else. Standing up in really tough times takes courage and a willingness to sacrifice. I see professional responsibility lawyers as being among the guardians of the rule of law system and therefore as among those who must stand up for the rule of law system in the toughest of times. Attributes such as courage and a willingness to sacrifice can gain strength through shared understandings founded on individual personal commitments.
I began practice as a civil litigator at a firm at which I had two mentors, George Fraser and Karen Creason. George graduated from law school in time to serve in World War II before practicing in Portland, Oregon. Before I arrived, he had mentored Geoff Hazard, who started his career at that firm and encouraged me to go there.3 Karen was a nurse before she was a lawyer, was about half way between George’s age and mine, and was the first woman there to proceed from first year associate to partner.
Karen taught me about friendship, standing up for your principles and looking out for others. One night before Karen and I had a critical brief due on which I had one last section to complete, I reached a point at which I hit a wall. I was a junior associate and Karen was a partner. But there I was between 1 and 2 a.m., absolutely stuck.
I called Karen at home, woke up Karen and her husband, told Karen I was stuck, and asked her to get out of bed, come down to the office, and help me. Karen showed up, we worked side by side until the brief was done and filed, and we won the case. And Karen never criticized me—not then and not at any later time.
I have not asked another lawyer since then to make a work commitment that I was not prepared to make. I also check in regularly with other lawyers to make sure that they haven’t become overburdened. If they have, I take work back and help out—just as Karen did for me. I don’t see this as promoting bad habits. I see this as the best way to encourage lawyers to look out for each other, to help them learn to speak up when problems appear on the horizon, to help them build strong mutual bonds, and to get the best work out of all of us in the long run. I also see it as the right thing to do, a message that George also demonstrated through regularly treating Karen and me to lunch and through a practice that I later learned was called management by walking around.
George also taught me that there are many creative ways to look at legal situations and that the search for the right legal argument for a particular case can be as much art as science. But more importantly, George, along with Karen, taught me that for most working lawyers, the practice of law is primarily a practice for and about human beings and their goals, failings, thoughts, and needs. Both of them strongly supported my transition into professional responsibility law.
When George retired, I inherited his desk. Shortly after that, his former secretary came into my office to hand me a memo.
“You know,” she said, “I’m used to seeing a much bigger man behind that desk.”
I answered her honestly: “So am I.”
I was blessed to work with George and Karen; they put me on a road I still travel. I am honored to be recognized by you today. And I am blessed to be married to Anne Seiler Jarvis, the love of my life. Thank you.
1. See, e.g., Gardner v. Conway, 234 Minn. 468, 48 N.W.2d 788 (1951).
2. See, e.g., Jones v. Allstate Ins. Co., 146 Wash. 2d 291, 45 P.3d 1068 (2002) (applying lawyer standard of care to non-lawyers performing what would otherwise be considered legal work).
3. See Peter R. Jarvis, Geoff Hazard: My Views as a Law Student, Mentee and Coauthor, 70 Hastings L.J. 1085 (2019).