What If Anyone Could Give Legal Advice? (Part 1)

What if we all woke up tomorrow and discovered that a law license was no longer required to give legal advice? What would happen?

The legal job market has led to much justified teeth-gnashing and finger-pointing. The fact that the current educational and licensure system continues to annually churn out thousands of unneeded and unemployable law license holders during a long, deep economic downturn has led to a number of calls for change. But one idea that has been around for quite a while, but hasn’t gotten serious attention, is that all Unauthorized Practice of Law (UPL) statutes should be repealed, and anyone who wants to try giving legal advice should be allowed to do it.

That isn’t going to happen any time soon, and I won’t try to convince you that it should, because I think that’s coming at the problem from the wrong direction. But I think it’s fascinating to speculate about what would occur in the legal marketplace if it did happen. What would legal service consumers, lawyers, and law schools do? It’s a question way too big for one post, but let’s start with what consumers of legal services would experience if the law license requirement were gone. Let’s begin by considering those who need legal advice and help but can’t afford to hire attorneys.

Empowering Experts, or Releasing the Hounds?

People who can’t afford to hire attorneys are currently doing without them. (The exception is in serious criminal cases, where they get a public defender who is trying to avoid burn-out and despair while carrying an absurdly heavy caseload.) These folks wait for months for a public-interest organization to find time for them, or they simply go it alone.

If one did not need a law license to advise these folks, it’s safe to assume that people would start doing so. But who? It seems likely that the same people who prey on the poor in other ways would probably start to open “Legal Services” shops. This is the concern that many lawyers immediately express when the idea of repealing UPL statutes comes up. It’s a legitimate concern.

But any lawyer with experience giving the kinds of legal advice that low-income people need (and can’t get) know that there are many, many non-lawyers who know family, child protection, housing and other civil law areas as well as any lawyer. They work in these areas every day as court clerks, paralegals, and legal secretaries. These experts would have an opportunity to start charging for their expertise, and since they would not need to spend hundreds of thousands of dollars for a law degree, they could charge a lot less for their services and still make a profit. There would be competent, honest alternatives to the predators. Every lawyer knows that one’s reputation determines how many referrals one gets, and how much money one makes— and that goes for accountants, mediators, and lots of other professionals who are not licensed. It’s not crazy to suggest that the predators would quickly fade away, and the long-term overall effect on lower-income people would be positive.

Next Post: What Effect on “Typical” Clients?

(photo: http://www.flickr.com/photos/bohman/190800033)

  • Catherine Tucker

    But how would the general public know which of these non-lawyers was competent in the field? And who would discipline these non-attorneys who demonstrated incompetence–or worse? I don’t believe for a second that the predators would quickly fade away–they would just find new prey.

    Nothing can replace a solid legal education and a licensing/disciplinary system.

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      How does the general public know which lawyers are competent now? A lawyer is presumed competent if she has a law license. A new lawyer with zero experience in child protection law can take just such a case. It’s possible that lawyer might face discipline after she botches the case, but does that help the client she failed? Does her discipline protect the public from the next new lawyer?
      As for predators, there will always be consumers that don’t do their research, like those that use payday loans instead of finding a better alternative. Does that mean that low-income consumers who do their research should get no access to competent legal advice?

  • Catherine Tucker

    “It’s possible that lawyer might face discipline after she botches the case, but does that help the client she failed? Does her discipline protect the public from the next new lawyer?”

    This is NOT a reason to completely get rid of minimum requirements and the discipline system. If anything, it is an argument to increase the minimum requirements for those who wish to provide legal advice. But a non-lawyer doesn’t even have proof that they met the bare minimum of competence by passing a state’s bar exam.

    “As for predators, there will always be consumers that don’t do their research.”

    Yikes! This sounds a lot like the arguments that are made to permit unlicensed, untrained midwives to keep practicing in states like Oregon. When those midwives kill a baby, the mother is the one that is blamed for not “doing her research.”

    The bottom line a licensing and disciplinary system is necessary to protect the public.

    • http://mommsenlaw.com chris

      Surely there is some sort of middle ground here. Many cases like uncontested divorces for folks with little in the way of assets are nothing more than glorified forms-fests. Using an attorney in such cases is like killing an ant with a bazooka. Yet we prevent litigants from using any help in these situations except for a lawyer who is probably too expensive and overqualified for the job. The result is that most of these people get no help at all, and the courts bear the brunt by dealing with pro se litigants who have no idea at all what to do, when a paralegal who could help with the forms would work wonders in simplifying the process for both the courts and the litigants.

      • Catherine Tucker

        Chris: The answer there is unbundled legal services.

  • Kevin

    I think there is a middle ground here, but doing away with licensure and education is not the way. I think England’s system (barristers and solicitors) presents some inspiration for a way forward: let’s let paralegals, who will need to get certified by some body, represent certain clients in certain types of matters that are like the “form-fests” that Chris mentioned. There is a big gap between those who can afford traditional legal services and those who qualify for legal aid (if that’s even available at all), why not let non-JD legal professionals fill that void? Frankly, I bet there are tons of paralegals who are more qualified to handle some matters than many attorneys.

    Another idea would be to loosen restrictions on practice environments. Let attorneys team up with other professionals to provide a sort of one-stop shop. Let law firms be owned by non-lawyers, while of course still ensuring that lawyers retain liability and professional judgment. Maybe that would help “walmart-ize” the legal profession, which may not be great for the entrenched lawyers, but would drive prices down and probably benefit society on balance. (Does anyone really think Cravath’s clients would utilize “walmart at law”?)

  • http://www.tremorgan.com/ Tre’ Morgan

    The issue is not so much how much they would spend for “legal” advice, but what they would potentially lose as a result of uneducated and uninformed legal advice. Bad legal advice can cause a lot more harm than no legal advice.

    Is there a huge need for reduced fee legal services? Absolutely. But, the answer lies in having successful lawyers donate more time, not allowing every body who want to make a dime dispense “legal” advice.

    • http://mommsenlaw.com chris

      I pretty stridently disagree with the idea that private charity can solve massive societal problems (and shortage of legal services for the poor is a massive societal problem at the moment) at all. If they can, they can’t do it nearly as efficiently as policy changes. Social Security, for example, is many times more effective in combating poverty in the elderly population than all the church groups in the country. Obviously this is not quite an analogous situation, but I’m still not convinced that volunteerism is the way out.

  • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

    Are you suggesting that making it even more difficult to get a license to give legal advice is the best way to provide legal services to those who are not able to afford them now?
    And the possession of a law license does not provide the “bare minimum of competence” needed to litigate the child protection case I used as an example, or any other case for that matter. That is a big part of the problem that the current “lost generation” of lawyers faces in finding work in this job market: they have law licenses, but law school and studying for the bar exam didn’t teach them how to DO anything.

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      (Comment above directed at Catherine Tucker)

    • Guest

      Andy is right. Pro bono legal groups should write a book that teaches child protection law, divorce custody etc. Unemployed young lawyers can then represent poor people, under the loose supervision of Pro bono legal groups.

      Skills that they gain can later be used when the economy improves.

      It is no excuse for law schools refusing to teach anything of value, however.

  • http://www.coyelaw.com Wade Coye

    Having systemization and regulation for education and licensing ensures accountability for individual actions. Not only in law, but in many aspects of life – for ex: medicine, mental health, financial transactions, even driving. Lawyers help people and are able to provide this assistance because of their education and licensing.

    “These experts would have an opportunity to start charging for their expertise…they could charge a lot less for their services and still make a profit.” I just wanted to point out that they could charge less, but it doesn’t mean they would.

  • http://rokolaw.com/ Jason Kohlmeyer

    I think this must have been written in the tone to cause debate. No one can seriously suggest that anyone who wants to be a lawyer, just raise your hand…

    But the point is made, and made well, that we have 4 law schools in Minnesota turning out hundreds of J.D.’s that have very little chance of making the investment in time and money worthwhile.

  • http://www.docracy.com/ Veronica Picciafuoco

    We (me and my fellow at docracy.com) are trying to empower experts and save consumers some legal fees, but from a specific angle: standard contracts. Basic contract templates have been recycled by lawyers and non-lawyers for decades, and by open sourcing them we can create a common knowledge base and make negotiations more transparent. The role of a qualified lawyer (in litigation, for example, but even in complex transactions) is never going to go away, but technology definitely allows for new, more efficient practice for low-level legal services that are now monopolized by attorneys.

  • http://nclawlife.com/ Donna Chmura

    I agree that many routine matters can and should be done better, cheaper and with more accessibility, but where do you think the highly trained and knowledgeable paralegals/legal assistants come from? They have apprenticed for many years with licensed attorneys. They don’t spring fully formed and knowledgeable from Learned Hand’s head……

  • Georgia Anne McCaule

    I agree with you Katherine Tucker

  • RF

    I find your argument lacking because such unlicensed knowledgeable individuals can be in the business of law right now as…paralegals. All that is required is a licensed attorney to supervise their work.

    I think you would agree that it’s a good idea to set some a minimum standard for a professional who might be required to save a person from going to prison for the rest of their life?

    p.s.
    many paralegals earn more than attorneys.

  • http://www.rowelllawoffice.com David Rowell

    You say that “people who can’t afford to hire attorneys are currently doing without them” and, although you probably mean something else, that’s not quite true. Really, just like health care, legal services are beyond the reach of ANY oridinary person who has to pay for it out of pocket. For the rich and big corporations, of course, this is not a problem, but for almost everyone else, legal services would be unavailable but for the contingent fee. This is the only means whereby ordinary people can afford to protect their legal rights and without it, you’d be correct, people WOULD “do without” legal services. This is the reason, of course, that big business (and its lobbying/media group the Chamber of Commerce) constantly attacks the contingency fee arrangement under the guise of “tort reform.” By making the fight for justice for ordinary people financially impractical, big business can eliminate the main safeguard for consumer rights.

  • the poor

    I think attys and law firms purposely conceal and confuse the law to a point where the average person cannot understand it nor afford it. attys will claim that they are protecting the rights of their clients and upholding the law….at $250 an hour or better. Why not charge $20 dollars or even $50 dollars an hour? What is it that you possibly do that would be more complex than what a skilled construction worker does at 18 dollars an hour? Navigate the laws in which you, in effect, assisted in creating like the 400 page irs code now around 70 thousand pages? You defend the common man against big business and gov’t? Yet you still sleep with them via representing them…of course justice is blind you say….of course, but the facts say otherwise. an atty will charge a person to represent the person on an offer to compromise with the irs regarding back taxes owed. the atty will charge at minimum around 500 bucks let’s say. the person gets his 2-5 thousand dollar back taxes reduced to paying 43 dollars a month for the next two years and that will satisfy the irs as long as they pay consistently. Or the person could just spend about 50 cents on an embossed envelope and write the irs regarding the offer to compromise and get whatever form they have, fill it out, and again with maybe 50 cents to a dollar or so send it in and receive the exact same outcome as the 500 dollar atty at only maybe five bucks out of pocket and a little time. In some instances i believe lay people with skills (verified) should be permitted to exercise their first amendment right without threat of upl sanctions and assist others regarding the law. In some cases I believe it’s best to have an atty and if one isn’t available due to high price fees then it’s time for pro se litigation and a couple prayers.

  • Michelle Moss

    I think It should be important to research any product and or service before deciding on one. Why should this be any different? There must be some consumer responsibility.

  • Gman

    @David Rowell, and that’s proven by all of the “big busines” that do not get sued each year by all those people that can’t afford lawyers, uh ya, right