Last week, in advance of discussion during Saturday’s ABA Annual Meeting in San Francisco, the ABA’s Task Force on the Future of Legal Education issued its extensive working paper. The Task Force contends the current system for financing a law school education, which drives up tuition costs and student debt, is deeply flawed and makes wide-sweeping recommendations for reform. The 34 page paper is definitely worth a thorough read, as it discusses the philosophical and practical drivers of the current legal education system in the broader context of the function of legal services in society. One of the myriad of recommendations the Task Force makes is to urge state supreme courts and lawyer regulatory authorities to authorize persons other than lawyers with JDs to provide limited legal services and to create certifications for such persons.
The fact is that the legal education “problem” cannot be fixed in isolation. The emerging recognition that some law-related services can and should be provided by individuals who do not necessarily have the higher (and more expensive) credential of a juris doctor will serve the public well.
As the working paper points out, solutions to the problems plaguing legal education must recognize the tension between the fact that the training of lawyers is both a public and a private good. The training of lawyers is a public good in that it reflects the integral role of law in the effective functioning of an ordered society. It is a private good in that it provides skills, knowledge and credentialing to enable individuals to earn a livelihood. Kyle McEntee, co-founder of Law School Transparency, told the ABA Journal that he views the paper as “a significant piece of thought leadership,” adding, “overall, the task force has done a great job of illustrating the problem and explaining the philosophical tensions at play between the private good and the public good.”
For many, the idea of allowing non-lawyers to provide certain limited legal services is quite troubling. Is this stemming from an over-emphasis on the private good—the earning power—of lawyers? Is this merely or primarily protectionism?
Let’s look at the public good side. Recognizing that many individuals can benefit from help that requires neither the skills nor the price of a full-fledged lawyer, several jurisdictions have previously made suggestions to allow non-lawyers to provide legal-related services. The New York City Bar’s Committee on Professional Responsibility recently recommended that the state formally recognize roles for non-lawyers who could serve as courtroom aides in judicial and administrative hearings and provide limited legal services to clients. The recommendations were included in a report titled Narrowing the ‘Justice Gap’: Roles for Nonlawyer Practitioners which includes a comprehensive overview of both the need for and value of non-lawyers providing legal-related services in certain circumstances.
The Professional Responsibility Committee’s report came on the heels of New York Chief Judge Jonathan Lippman’s announcement that he was naming a committee to examine possible roles non-lawyer advocates could play in making legal services more affordable to New Yorkers who typically go unrepresented in civil cases.
Of course, New York isn’t alone. In June, a California State Bar panel recommended that a limited license to practice law program and possible governance models be developed in an effort to expand legal services to individuals who can’t afford attorneys. And the state of Washington last year passed a rule to allow non-lawyer limited license legal technicians who offer specific legal help to civil litigants.
Isn’t it only responsible for lawyers to continually examine more efficient ways to serve our clients and those in need of legal services? We shouldn’t be practicing law and billing the same way we were in 1970 or ’80 or even a few years ago. Clients shouldn’t be paying hundreds of dollars an hour for services that could be efficiently and ethically provided by software or a paraprofessional.
Of course, determining exactly what changes are needed and how to best implement them is certainly a topic for debate. I want to hear from you. How do you feel about the ABA’s recommendations? Should we consider different modes of delivering legal services and, if so, in what situations should they be allowed? What do we do about quality controls?