Speaking of Ethics Accentuate the Positive

by William I. Weston - a professor of law
Dean College of Legal Studies at Kaplan University, Fort Lauderdale, Florida

After several years of hard work, hearings, and discussion, the Nonlawyer Practice Commission, along with the able leadership of the staff of the Center for Professional Responsibility, has published its long-awaited report. This very well-written report should be read by every lawyer in the ABA and especially by every solo and small firm practitioner. The main drawback of the report is that the commission was so fractured and so consumed by the problem of how to deliver legal services to poor people that it could not develop suggested implementation strategies. That work will be the next phase and will be accomplished by the committees of the Center for Professional Responsibility.

Like any report, this one is only words on paper unless and until the reader comprehends the underlying issue. In this case, the underlying issue, which can be compared to a speeding train about to run over the legal profession, is the Nonlawyer Practice Special, and it is racing into our station right now. Those within the profession who will be hit the hardest and have the most to lose are the solo practitioners. However, solos also have a great opportunity to make the changes necessary to keep the delivery of legal services within the legal profession.
Why has law practice by laypersons developed so quickly? Today, the profession finds itself in a situation that could be defined as an economist's dream. There is a tremendous supply of lawyers ready and able to provide legal services and there is a tremendous need for legal help. Yet despite this idyllic situation, lawyers and the organized bar seem helpless to bring the two together. It seems incomprehensible that the legal services traditionally performed by lawyers is increasingly performed either by unlicensed practitioners or by pro se clients. Meanwhile, young lawyers hunger for work.

Every study of legal needs demonstrates clearly that a large segment of the population would be willing to pay some amount for legal services but do not seek the services of a lawyer because of perceptions of fees, lawyer arrogance, and competence. The legal profession seems paralyzed and is living in the shadow of former periods of success during which lawyers were able to act any way they chose and charge almost any amount to achieve results for a client. In addition, the organized bar has focused exclusively on the legal needs of the poor rather than the middle class who can pay something. This is especially true of the ABA and remains true today.

The problem is twofold. First, the decline in the economy has reduced the ability of many people to find "extra" money to pay the high cost of legal services, and consumers have become much more savvy when making economic decisions. Second, lawyers' fees have reached hyperbolic proportions without any relationship to a reasonable economic model of cost and profit.

The result of this situation is an increasingly restless public in desperate need of legal services in order to solve problems in their lives. There are people who want to divorce or resolve custody and support disputes but who cannot afford the legal services. Because the only way to resolve family disputes is with a lawyer, these individuals are forced to abandon their position or, increasingly, to represent themselves. There are people who sign contracts daily that bind them to major obligations who have no idea what the contract provides and who believe, correctly or not, that they cannot afford to secure that advice from a lawyer. The failure of the profession to reevaluate the paradigms of law practice and to make significant changes has created a Hobson's choice for most middle class individuals--proceeding pro se, seeking the advice of someone who is not licensed to practice, or not proceeding at all.
This failure by lawyers to change has resulted in a vacuum Because of this, a new industry of services by individuals other than lawyers has evolved. Sometimes called nonlawyers, they are in fact individuals with varying degrees of experience and education who offer help to citizens to solve their legal problems. Whether these services are "legal services" or not is a semantic matter. However, it is clear that many of these services were historically performed by lawyers, yet are not currently being provided by lawyers.

In some states, such activities by individuals without a license is called unauthorized law practice and is prosecuted under criminal statutes. In some states, lay practitioners have a right to engage in the delivery of some services historically offered by lawyers. In both situations, there is a good deal more of the lay practice than anyone cares to admit. For the public, there is a tremendous risk involved in accepting the services provided by unlicensed and unsupervised lay practitioners. Surprisingly, many members of the public believe that these practitioners are licensed and regulated and they are appalled to learn that there is no regulatory process.

However, this situation can and should be viewed positively. The rush of individual clients to lay practitioners, the growth in the number of lawyers, and the legal needs studies afford the bar an opportunity to take a fresh look at the practice from the ground up.
The first paradigm where this review must occur is in law schools. Despite the advent of clinical education, internships, and new courses, most students are still trained in the traditional Langdell method of the recitation of appellate cases. Most students do not take advantage of clinical education or internships unless forced to do so. Because law school curricula have been decimated to allow for esoteric courses like "The Law of Developing Nations," students take a potpourri of courses that bypass the traditional general practice fare. First-year courses are being cut to quick, one-semester surveys in order to make room for fancy electives and seminars.

In short, we are still training lawyers to work in major Wall Street firms and to clerk for federal judges while the data indicate that the vast majority of practice opportunities in this country are in the solo and small firm arena; and that most law practice takes place in state courts, not in federal courts. Therefore, legal education must undergo a radical change to fulfill its promise. It must retain the important theoretical foundations, but it must also train people to represent clients.

The second paradigm that must change is legal fees. Lawyers must find new and innovative ways to set a fee that results in a reasonable return for the lawyer but is affordable and reasonable for the client. Most important, that fee must be something that the client really understands. It should be quantifiable and limited so the client knows what the service will cost. Finally, fees have to reflect the limits of the client's ability and willingness to pay. Clients deserve a system where they know the fee at the outset; set fees for simple services will encourage clients to come into the office.

The third paradigm concerns law office organization. By and large, we are still practicing law the same way we did 30 years ago. Although there is some computerization, the fundamental dynamics of the law office remain the same. The players in the office--their titles, roles, and interrelations with the client--are the same as they were 30 years ago. Record keeping remains substantially the same as it was 30 years ago even with the advent of the computer. Paper files, mountains of paper, and yellow pads still mark the traditional law practice. Yet, generations of computers and software have come on the market that could and would give the practitioner the chance to deliver high quality, lost cost services and to keep accurate and complete records without endless file cabinets and expanding folders. Quietly and unobtrusively, data bases have become as sophisticated as word processing, and there is a bevy of software for the law office that organizes and handles all kinds of information.

Lawyers need to consider the allocation of human resources in a different way. A properly trained paraprofessional can conduct basic intake. The lawyer has to invest time, money, and effort in selecting competent paraprofessionals; take steps to fill knowledge and training gaps in the paraprofessional; and take responsibility for the actions of the paraprofessionals. These duties are all reposed in Model Rules 5.1-5.4. The client needs a matter resolved. If the matter can be resolved by the work of a trained and properly supervised paraprofessional, then the client is served at a cost he or she can afford in a manner and venue that provides protection to the client under the lawyer's license.

Instead of saying no to other practice models or ignoring them completely, the bar and individual lawyers must find ways to implement the models and to seek new ones if the nonlawyer speeding train is to be stopped. Most important is protecting the rights of the client--the right to legal services and to competence and protection in the delivery of those services. Lawyers must become "user friendly," client-oriented, and outcome-determined. In other words, legal services have to be delivered in a format that gives the client a sense of well-being and satisfaction at a cost that the client can afford.

Solo and small firm practitioners have to lead the way in designing new forms of law practice that bring technology, high efficiency, and low cost together. Solos have the most to gain from this change. Solos deliver the vast majority of legal services in this country and will benefit immediately from any growth in the available client base. Without action, at risk is the continued role of lawyers--especially solos--as the primary source for the delivery of legal services to clients.