No issue is more central to the contemporary American legal profession than how to define itself as a profession: who’s in, who’s out, and why. The recent report of the American Bar Association’s Commission on Non-lawyer Practice places these questions in sharper focus. Although the re-port offers a thorough and thoughtful analysis of the policy considerations at stake, its ultimate recommendation is disappointing. For the ABA Commission, the bottom line is that somebody else should do something. More specifically, the report recommends that “each state should conduct its own careful analytical examination, under the leadership of its highest court, to determine whether and how to regulate… nonlawyer activity… .” In making that determination, states should consider the need both to increase access to legal services and to protect consumers from unqualified and unethical practitioners.
From the perspective of bar politics, this deferral of responsibility to states is scarcely surprising. Lay competition is an increasingly divisive issue in an increasingly divided profession. But from the perspective of public policy making, the result leaves much to be desired. Many experts hoped for a stronger, more specific call for reform. My own reaction is a bit like the response of a weary New England farmer when neighbors asked whether his livestock had brought a good price: “Well, I didn’t get what I thought I would but then I knew I wouldn’t.”
This essay explores the contributions and limitations of recent bar debates over nonlawyer practice. Part I highlights the stakes in these debates from a personal perspective. My involvement with questions of nonlawyer competition now spans two decades, and the new ABA report raises concerns that have long been central to my work. Part II reviews the ABACommission’s findings and the obstacles that its recommendations are encountering. Part III addresses the public interest in nonlawyer practice, and Part IV offers an alternative regulatory framework. Like the ABACommission, I conclude that somebody else should do something. Unlike the Commission, however, I try to be specific about who and what.
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