OCTOBER 2019 | ETHICS IN VIEW

There are other ways

by Dennis A. Rendleman, ABA Ethics Counsel, ABA Center for Professional Responsibility

The following is the opinion of the author and not the official position of the Center for Professional Responsibility or the American Bar Association.

There is an ongoing flurry of activity regarding “access to justice” and “the future of the legal system.” In 2013, Washington state established Limited Licensed Legal Technicians (LLLT).  Originally limited to family law, the program is exploring further expansion into consumer law. 

Similarly, the Utah Supreme Court approved rule changes allowing Licensed Paralegal Practitioners (LPP) to practice in specific family law matters, forcible entry and detainer and civil matters that do not exceed the small claims dollar amount. 

California is vetting a proposal that would allow non-lawyer practice and held a public hearing on their report at the same time as the 2019 ABA Annual Meeting in San Francisco in August. 

A more fundamental question exists as to whether the idea provides greater access to justice. In Washington state, as of August 2019, there are 29 LLLTs registered. Some are practicing within law firms while a few have opened independent offices. Just whose access to justice will be increased is a question with no clear answer. While it is generally thought that the question of access is focused upon the “poor,” e.g., low-income individuals, in fact, the program is more oriented toward moderate-income individuals.  (See, Rebecca M. Donaldson, “Law by Non-Lawyers:  The Limit to Limited License Legal Technicians Increasing Access to Justice”)

Do LLLTs or LPPs add to the practice of law and/or access to justice? Or does it merely create another “competitor” in the practice of law at a time when lawyer unemployment is just recovering from the Great Recession?

Moreover, even the widely used diagram to illustrate the legal market can be misleading:

This graphic illustrates the gap in legal services.

This graphic illustrates the gap in legal services.

Illustration courtesy of The Chicago Bar Foundation

The issue should not necessarily be viewed from the perspective of a “market” for legal services, but what areas of dispute resolution have the greatest need for reform. A 2015 report by the National Center for State Courts, “The Landscape of Civil Litigation in State Courts,” has interesting findings:

  • More than half of the Landscape cases were low-value debt collection, landlord/tenant and small-claims cases.
  • For the civil caseloads, three-quarters of the judgements entered were $5,200 or less.
  • Most cases were resolved through an administrative process rather than an adversarial proceeding.
  • At least one party was self-represented in more than three-quarters of the cases.

At the same time, states are studying amendments to their Rules of Professional Conduct to revise rules on ownership of law firms. Proponents argue that changes could bring about more innovation, and hence, greater access to legal services by persons who cannot currently afford service. But broad amendment of ABA Model Rule 5.4 may have unintended consequences.

Rule 5.4 (b) reads: “A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.” On one hand, there has been brouhaha regarding law firms that have non-lawyer “CEOs” and whether this interferes with the professional independence of lawyers. On the other hand, arguments are being made to “ease” the rules prohibiting non-lawyer ownership. Could the “Big Four” accounting firms take advantage of the opportunity

The experience from Australia, Canada and the United Kingdom has been mixed. Perhaps most intriguing is the European approach where, in various jurisdictions, there is a limit to the percentage of ownership/investment that can come from non-lawyers.  For example, “Europe permits alternative business structures on a more limited scale with 49 % of Scotland, 33% of Italy, 25 % of Spain and 10% of Denmark requiring lawyers to have primary control of legal firms.” 

In his new book, “A Republic, If You Can Keep It,” Supreme Court Justice Neil Gorsuch elaborates on a paper he presented at the United Kingdom-United States Legal Exchange in 2015. In it, Justice Gorsuch argues that “[c]onsistent with the law of supply and demand, increasing the supply of legal services can be expected to lower prices, drive efficiency and improve consumer satisfaction.” 

However, reliance on this hoary nostrum is not the panacea it presupposes. An example is the similar nostrum that claimed the increased lawyer advertising would lower costs to consumers.  A variety of studies have contradicted this. The majority of lawyer advertising comes from trial lawyers seeking personal injury clients. And, while the original Bates v. State Bar of Arizona led to advertising by commercial legal clinics offering low-cost divorce, wills, etc., those entities no longer exist. In large part that is likely due to the law of supply and demand. Does that provide any historical insight into the idea of allowing non-lawyers to provide those “simple” legal services?

Rather, a more rational – but also more difficult – approach is to make substantive structural changes in the legal system. Why does every divorce have to go before a judge? A mechanism that instead proceeds through arbitration…or, perhaps, a system similar to the British Columbian Civil Resolution System? That system has proven that it works for the Canadian equivalent of landlord/tenant matters and the civil areas cited above. Would a similar system save money for consumers and time for judges? What other consumer matters could be addressed in a less adversarial and more efficient dispute resolution system? 

One could argue that there are other ways to help consumers resolve conflicts more efficiently.  Based upon the statistics cited from “The Landscape of Civil Litigation in State Courts,” one could argue that making the system more consumer-friendly will be more beneficial than adding another player in the mix. Making all those matters easier for the consumer to “do it themselves” could benefit everyone. But does expanding the practice of law by non-lawyers provide greater access to legal services to consumers? There are other ways.

ABA Center for Professional Responsibility is a national leader in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection mechanisms.

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