May 2005

The Practice of Law and Involvement by Nonlawyers — Whither Goest the Future?

by Ron Ward, WSBA President

In March 2005, the WSBA Practice of Law Board, headed by its estimable Chair Steve Crossland and Vice Chair Paul Bastine, appeared before the Board of Governors. The Practice of Law Board, formed by the Washington State Supreme Court and administered by the WSBA, addresses concerns about unauthorized practice of law by developing a regulatory framework for nonlawyers, and more practical ways to define the unauthorized practice of law so that it can be prosecuted. This presentation concerned a draft rule that would create, license, and regulate "legal technicians" in various fields of law. They would be allowed to work in form-driven fields where there's a demonstrable need. Public hearings are planned in the near future in Spokane and Seattle in April and May, as well as sessions with WSBA sections, local bar associations, and the Bar Leaders Conference in June. This presentation acted as a catalyst to some thought on my part about lawyers, the public we serve, contemporary circumstances, and economics.

A Brief Hearkening Back

In my February 2005 column, "Pitbulls, Pikes, and Pitchforks," I speculated that it might be that:

The public is searching for alternatives to us because we are in danger of losing our way and our image as society's problem-solvers. That explains the tremendous movement toward collaborative law, mediation, and other alternatives for resolving disputes.*

One aspect that I did not comprehensively explore in my article in addition to our profession's image is the role that economics and consumerism may play in the evolution of the legal profession in Washington and in America in the future; a future that may be nearer than we think.

A British Foray — A Proposal for the Radical Overhaul of the Legal Profession in Britain
Dale Carlisle, past president of the Washington State Bar Association, sent the following article to me.** It constitutes real food for thought, to the degree that I wanted to share it with you.

Envision executing a will just down the aisle from frozen foods at the supermarket or negotiating a divorce agreement in an alcove near the automotive department of the superstore at the mall.

Those may be farfetched scenarios in the U.S., but for lawyers in much of the United Kingdom, they depict what the legal marketplace could be like if the government goes forward with a radical overhaul of the legal profession. And that appears to be the plan.

Last week, a leading justice official in the government announced a package of measures to make the regulatory and discipline process for lawyers more open and accountable to the public, and to make it possible for lawyers to partner with commercial enterprises in offering legal services to the public.

"Reform of legal services is overdue," said Lord Charles Falconer, the secretary of state for constitutional affairs and lord chancellor, in a speech March 21 at a legal reform conference in London. "Where the system is not working as well as it needs to, we must put it right."

Consumers, Lord Falconer said, "are at the heart of the package of reforms. The consumer needs and deserves value for money together with accessible, consistent, responsive legal services." Moreover, he said, consumers want "services which are designed to suit them, not the convenience or the interest of the supplier."

Indeed, some Britons have referred to the proposed legal restructuring as "Tesco law," after the giant U.K. supermarket chain that is hoping to sell legal and insurance services to customers who drop in to shop for their milk, canned goods and produce. Other potential investors in legal services, including banks, insurance companies and document preparation services, also are exploring how they might take advantage of business opportunities if the legal restructuring is eventually implemented by Parliament.

While any impact on the U.S. legal system is expected to be minimal, some American lawyers are following developments across the pond with interest, if only because the two justice systems share the same common-law roots.

"It definitely will be an interesting experiment," says Richard Granat, who co-chairs the eLawyering Task Force of the ABA Section of Law Practice Management. "I for one don't know the outcome."

In his speech, Lord Falconer outlined three key proposals to change the current regulatory structure for lawyers in England and Wales. (Scotland and Northern Ireland have separate legal systems.) First, the government would create a Legal Services Board, which would have a nonlawyer majority, to oversee what Lord Falconer described as "the legal services sector" in England and Wales. The LSB would be empowered to assign regulatory functions to other entities. Presumably, those other entities would include the Law Society and the Bar Council, the mandatory membership organizations that currently regulate the bar in England and Wales. Solicitors, who work primarily outside the courts, are members of the Law Society, while barristers, who argue cases in court, belong to the Bar Council.

Second, an Office for Legal Complaints would be established to handle consumer complaints against regulated legal service providers that are not resolved at lower levels.

Third, the government would for the first time permit nonlawyers to be partners, owners, investors or managers in businesses that provide legal services. Lord Falconer said this step would include "robust safeguards" for consumers and a licensing scheme to determine a business's fitness to represent legal clients.

The measures outlined by Lord Falconer closely track recommendations made in December by Sir David Clementi, a nonlawyer with a background in banking and finance who headed a commission appointed in July 2003 by Prime Minister Tony Blair to review the legal profession's regulatory structure. While Lord Falconer's speech is expected to give momentum to the government's plan to overhaul the structure for regulating legal services in England and Wales, the proposals aren't a done deal—at least not yet. Lord Falconer pledged to formalize the proposals in a white paper later this year, then to propose legislation to implement them. Observers say it is unlikely Parliament would consider the measures until at least 2006.

Some say Lord Falconer's speech was as significant for what was left out as for what was said. "The suggestions that have been made lack almost any detail at all that would help you express informed judgment about them," says Milwaukee lawyer Delos N. Lutton, who is president-elect of Union Internationale des Avocats, an international association of lawyers, bar associations and law societies. Stating his personal view, Lutton expresses concern that Lord Falconer did not emphasize the importance of an independent legal profession. Lord Falconer "never even mentioned what consumers would need most," Lutton says. The requirements include "a lawyer independent of government influence, who avoids conflicts of interest, knows how to keep things confidential and has a recognition of the attorney-client privilege, which has been a hallmark of the legal systems of developed countries for centuries." If the proposals fail to address concerns about independence, Lutton says, they will "amount to a government executive branch takeover of the legal profession and a critical loss of independence by the legal profession."

Edward Nally, the president of the Law Society, also raised concerns about independence in a speech delivered after Lord Falconer's remarks. While the Law Society does not oppose the government proposals, Nally said professional independence for lawyers is "non-negotiable." Nally said the principle of independence "means ensuring that lawyers can operate fearlessly and unfettered from government control when they have to stand up for citizens against the state." Nevertheless, Nally urged the government to move quickly to draft legislation to implement Lord Falconer's proposals. "Delay would frustrate consumers and thwart many of the imaginative changes that the legal profession itself wants to implement," he said.

Indeed, the Law Society and the Bar Council already are changing their structures in line with Clementi's recommendations. Both have announced plans to create regulatory and discipline systems that are separate from their efforts as advocates for lawyers.

Meanwhile, both lawyers and nonlegal entities are anxious to take advantage of new business opportunities that would be made possible by what Clementi termed legal disciplinary practice. LDP would essentially be a freewheeling version of multidisciplinary practice that would allow companies, from banks to grocery stores, to offer legal services directly to the public.

To Richard Cohen, a London solicitor who heads Epoq Group, an online legal information services company, LDP is a logical step in the evolution of legal services delivery. (Granat of West Palm Beach, Fla., is president of Epoq US.) If the Clementi recommendations are implemented, Cohen says, the manner in which legal work is parceled out would quickly change. He foresees large operations outsourcing document work through core centers, while lawyers are retained in-house to provide direct counsel to consumers.

Cohen also envisions further segmentation of legal services delivery in England, where accountants have taken over most tax work once performed by lawyers and specialty companies handle debt collection. Cohen says real estate could follow the same pattern, with small-firm lawyers known as "High Street solicitors" losing work to other types of providers.

Insurance companies in particular will find the legal services market hard to resist, Cohen says.

And, he says, "Providing it's done ethically, I don't see anything wrong with it."

Cohen says the proposed changes actually could improve career opportunities for many lawyers. A lawyer working for a company might be on a career path with more flexibility and opportunities for advancement than he or she would have flying solo or working in the ranks of a law firm, he says. "I don't think lawyers are going to come out of the loop," Cohen says. "I don't see institutions trying to deliver services without lawyers. I just think there will be less lawyers in private practice."

I hope you found the foregoing as provocative as I. If you did, please give Bar News and me your thoughts via your letters to the editor. I think it is a subject eminently worthy of thoughtful discourse. ?

The question is not whether we can; it is whether we will. We can and we will because, working together, there is nothing we cannot change for the better.

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Ron Ward may be reached at 206-624-884 or rrw@admiralty.com. If you would like to write a letter to the editor on this topic, please e-mail comm@wsba.org or tradelaw@hotmail.com, or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330.

NOTES

*  Washington State Bar News: "Pit Bulls, Pikes, and Pitchforks," p. 14, Ronald R. Ward, February 2005.

**  Reprinted by permission. ABA Journal eReport, Vol. 4, Issue 13, "Reform Proposals Pick Up Steam In Britain — Justice Official Lays out Plan That Would Allow Nonlawyers to Compete for Legal Business," Molly McDonough, April 1, 2005.

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