At the February meeting of the American Bar Association’s House of Delegates in San Diego, which I attended, the delegates adopted a resolution giving states a regulatory framework for allowing non-lawyers to provide certain legal services.
Resolution 105, sponsored by the ABA’s Commission on the Future of the Legal Profession, was purportedly aimed at addressing the access-to-justice gap by taking steps in acknowledging that some states may want certain legal services to be provided by non-lawyers.
The resolution was bitterly contested, and it passed, with the support of what I would call the “ABA establishment.” Those who were opposed, including myself and most of the Pennsylvania delegation, represented more of what I would call the “traditionalists.”
In my opinion, this was a prime example of a number of current existential debates. Are we as lawyers engaged in a profession or a business? Are bar associations trade organizations or public service organizations? Of course, the easy answer is a little bit of both. However, that does not answer some basic concerns.
Are we as lawyers engaged in a profession or a business? Are bar associations trade organizations or public service organizations?
The traditionalists, of whom I count myself as one, would argue that we need to maintain our stature as a profession and not a business in which entrepreneurs of all stripes find opportunity. Being a lawyer is a proud profession, which requires training, experience, and character. Of course there are business aspects to what we do – we could not survive without them – but where do we draw the line? We have generally left it up to ourselves and our courts to do that. We need to continue to do that without undue interference. If not, do we leave it to legislatures and businessmen to decide who and what we are?
Secondly, there is a tension between whether bar associations are trade organizations or public service organizations. Again, of course, we are both. But how are such tensions resolved? After going to school for seven years, taking and passing the bar examination, and satisfying the character requirements for bar admission – not to say being hundreds of thousands of dollars in debt – do we now allow our young attorneys to compete with non-lawyers in areas where young lawyers may gain expertise and clients? Do we allow them to compete against persons who have not risen to those standards?
I understand there is an access-to-justice component here. However, we should find ways to figure out how the poor and middle class get access to and retain a real lawyer rather than accept a substitute. Our obligation to protect clients calls for no less. I, for one, do not want to be a party to the Race to the Bottom.
Albert S. Dandridge, III is a partner at Schnader Harrison Segal & Lewis LLP and is the Immediate Past Chancellor of the Philadelphia Bar Association. Mr. Dandridge received his J.D. from Temple Law in 1978 and his B.A., magna cum laude, from Temple University in 1975.
Mr. Dandridge is right to bring this subject in front of us, and I believe he is right in the position he has stated.
We must all be aware of the Legal Aid organizations, and the pro bono work by individual lawyers. Unsupported assertions decrying the unavailability of lawyers for the poor have raised a clamor for decades. So we may not only ask if licensed paralegals, and unlicensed businesses, can provide the same quality of service as lawyers; but will they provide pro bono services as well ?
What kind of professional liability insurance will they have, who would substitute for trained and licensed lawyers ?
How will these business seekers protect the confidentiality of their “clients” ? What will they do when someone sues one’s client ?
It will be interesting to see how these ABA modern thinkers deal with these consequences when they promulgate guidelines for the states.