Thanks to Blawg Review #56, which is hosted by Point of Law this week, I learned today that another bunch of Ohio lawyers [prior post] is “protecting” consumers by protecting themselves from competition. Walter Olson writes for BR#56:
“If you set out to devise a case that would bring unauthorized practice of law statutes into public disrepute, you could hardly have done better than the Cleveland bar, which is seeking to punish a nonlawyer for representing his own autistic son in IDEA (special-education) proceedings–even though the father and son prevailed in the proceedings, undercutting any consumer-protection line of argument. Prof. Ribstein isn’t impressed with the bar’s action (“I am beginning to wonder whether it’s worth preserving any piece of lawyers’ monopoly on legal representation”), and neither is the Berkeley, Calif. blogger who posts at Bookworm Room. [But see: Jonathan Wilson, "Is Lawyer Licensing Necessary? A Response to Professor Ribstein, " May 8, 2006]
A similar case that is worth a look came out of Delaware, in 2000. In the Matter of Arons (Delware Supreme Court, 456 A.2d 867, 2000), cert. den. 121 Sup. Ct. 2215 (2001), the Delaware Supreme Court ruled that, by representing families of children with disabilities in due process hearings, Marilyn Arons and her partner, Ruth Watson, were engaged in the unauthorized practice of law (UPL). (related article) The local School Board had accused Arons of UPL — in a situation where the Board was being asked to pay the expenses of victorious parents, who had fought the Board over their children’s educational rights, with the help of Arons and Watson (and their Parent Information Center).
Public Citizen represented Arons in her unsuccessful petition for certiorari, which can be found here. One very important point was emphasized in Public Citizen’s cert petition — the experience and competence of the nonlawyers:
“[T]here is no question that non-lawyers like Ms. Arons and Ms.Watson are competent to advocate effectively on behalf of families with disabled children. To be effective, an advocate at an IDEA hearing must be familiar with the clinical aspects of the child’s condition (skills that lawyers ordinarily lack), as well as the rules governing the conduct of the hearing. [cite omitted] Non-lawyers with “special knowledge and training with respect to the problems of children with disabilities” are fully capable of presenting the parents’ case to the panel. Indeed, Ms.Arons and Ms. Watson obtained significant relief in each of the five cases at issue here, even though they were matched against members of the Delaware Bar.”
The same school district is involved in a case argued before the US Supreme Court last month (April 19, 2006), over whether Arons should be awarded fees for nonlawyer advice and advocacy in a disabilities case. See Murphy v. Arlington Central School District, 2nd Cir. 2005, and find a summary at WrightsLaw.com.
To learn more on the unauthorized practice of law (or its obverse: defining the practice of law), I’d suggest taking a look at our ethicalEsq UPL Page. The article “Lawyer vs. NonLawyer,” by HALT’s Executive Director, Jim Turner, has a useful discussion on crafting a consumer-friendly defintion of the practice of law. (from Legal Times, Feb. 3, 2003, 2 pp, pdf.). And, HALT’s UPL page sets forth the principles endorsed by the consumer legal reform group for treating the unauthorized practice of law:
One of the most effective ways to increase consumer choice in legal services would be to abolish unauthorized practice statutes. As the simple and routine legal needs of millions of Americans continue to gounmet each year, it is critical that consumers be able to utilize independent paralegals and other nonlawyer resources.
At the core of HALT’s efforts to reform restrictions on unauthorized practice are three principles:
- The unauthorized practice of law means saying you are a lawyer when you are not;
- Innovative partnering between lawyers and nonlawyers is permissible with client consent after full disclosure of work and fee arrangements; and
- A client or customer complaint should be required before unauthorized practice of law proceedings can be initiated.
On the broad topic of professional licensing, there are many viewpoints. For example, see: Restrict Lawyers’ Licenses — Authored by attorney Ralph Warner, this Nolo.com Soap Box Column states that “A license to practice law is no guarantee of legal knowledge, skill or experience. Incompetent lawyers regularly mislead and defraud clients who rely on the promise of expertise that the lawyer label brings.” Warner concludes:
“When it comes to lawyers who sell personal legal services, a lawyer’s license should be limited to specific subject areas — for example, family law, criminal law, tax or probate. A separate exam should be given for each specialty. That way, an exam could test the skills and knowledge needed by a lawyer who wants to represent clients in a particular legal subject area.”
Protecting lawyers, not clients — In this article by George C. Leef (for the Cato Institute), the author argues that “The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence. Professionals want to do competent work for their clients. Fear of failure and financial loss is a stronger deterrent to incompetent work than any licensing scheme” and concludes that “Competition works as well in legal services as in other markets. But we’ll have to get rid of the UPL statutes to enjoy the benefits.”
The Objective of Professional Licensing — In “What is the Objective of Professional Licensing? Evidence from the US Market for Lawyers” (Nov 2004), Turin Univ. Professor Mario Pagliero finds that the objective of such regulation in the USA is explained by capture theory, rather than public interest theory, and that “licensing increases annual entry salaries by more than $20,000, ” with a total welfare loss of over $6 billion. (This link accesses an abstract, but the entire study is available with a free registration.)
Prof. Ribstein’s suggestion that no licensing might be a better alternative for clients seems rather extreme. For example, first moving to a disciplinary system that is not dominated by the legal profession seems more prudent [see our post "Should Lawyers Control Lawyer Discipline?," as well as the post "UK Gets Improved Lawyer Discipline System] The analysis given byJonathan Wilson in support of continued licensing rings true:
“My defense of lawyer licensing is not a defense of the status quo with respect to the various bars.More accurately, though, lawyer licensing is necessary because legal services are precisely the kind of good for which the market is an inefficient method of regulation. . .
“Corporate buyers of legal services do, in fact, have little need of state licensing. The corporate legal marketplace, if left to its own devices, would, in the long run, produce an efficient price and tend to wean out poor producers of legal services.
“A second market, however, is the consumer market. Consumers are generally ill-equipped to evaluate their own legal needs and are generally unable to evaluate the merits of competing producers.Consumers cannot evaluate competing price proposals . . .
“The current state of lawyer licensing may be flawed, but it is better than the state of affairs that would exist if lawyering was utterly unlicensed.” . . .Nonetheless, as can be seen in materials on our Access/Self-Help/Pro Se Page, the f/k/a Gang believes that much more should be done to enable consumers to handle much of their legal problems on their own. In addition, so long as the consumer clearly understands that a particular service provider does not have a law degree, and general consumer protection laws against fraudulent, unfair, or deceptive practices are adequately enforced, consumers should be allowed to choose nonlawyer providers. Consumers who want a “real” lawyer should have the protection of well-crafted and implemented licensing regimes. Informed choice and oversight by consumer-oriented regulators (not by the local lawyers’ guild), should increase options and price competition.
p.s. Thanks to Carolyn Elefant, writing at Inside Opinions, I learned this evening that, making some rather lame excuses, the Cleveland Bar has dropped its UPL case against Brian and Susan Woods, the parents who had (successfully) represented their child. See Cleveland Plain Dealer, “Lawyers’ Group drops claim against parents,” May 5, 2006; and NYT, “Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset,” May 6, 2006.
A haiku break with Prof. Randy Brooks:
missing in action
she dusts off his guitar
returns it to the shelf
empty farm wagon
a cell phone
buzzing under the hay
lock out . . .
workers burn the editorials
to warm their hands
- from World Haiku Review, Vintage Haiku
gramma hoes the beans
a weed clings
to her nylon anklet
door left open . . .
there he goes
with his kite
………….. from School’s Out (Press Here, 1999)