While the ABA Task Force on the Future of Legal Education produced remarkably little of substance when it comes to actually fixing anything, it did throw out a few nuggets to keep tongues wagging. One such nugget was the creation of “limited licensed technicians.”
However, there is today, and there will increasingly be in the future, a need for: (a)persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services. The new system of training and licensing limited practice officers developed by Washington State and now being pursued by others is an example and a positive contribution.
And so, they recommended that the ABA:
Authorize Persons Other than Lawyers with J.D.’s to Provide Limited Legal Services, Whether Through Licensure Systems or Other Mechanisms Assuring Proper Education, Training, and Oversight.
- The data suggests that the pricing of legal services by solo practitioners and very small law firm firms is going down — not up. It is not a fact that the legal fees are out of reach of many consumers. There is no evidence to suggest that the fees that limited licensed practitioner would charge would be any less than the fees currently charged by solo practitioners, but their service, by definition, would be much more limited than the service offered by an attorney.
- Solo practitioners are already being displaced by technology which is forcing a reduction in legal fees. Limited licensed practitioners would be even more vulnerable to the impact of information technology on the more routine services that they would offer.
- The restrictive licensing scheme for lawyers, which is based on a “job-shop” model is likely to be replicated in the licensing scheme for “legal technicians.” Lawyers already suffer from a competitive disadvantage against new market entrants. Legal technicians will face the same competitive disadvantages.
- Introduction of a new class of limited licensed professionals will continue to erode the economic model of solo and small law firm practice by sucking out from those practices the more routine legal services which are important to sustaining the economic viability of those law firms. It is naive to suggest that solo practitioners should concentrate on doing “more complex legal work” leaving the routine legal work to “limited licensed professionals.”. If the ABA wants to deliver a death blow to solo practitioners this is a good way to do it.
This is a truncated version of Granat’s argument, so go to his blog for the full version, where he provides support for his contentions as well. Richard Zorza at Access to Justice offers a response:
The highly reflective Richard Granat has posted an analysis of why he has recently come to the view that creating a category of limited legal technicians may do more harm than good. In short, he worries that the pricing model will be no cheaper than lawyers, and that such non-lawyers will force out solo lawyers. In my opinion either may (or may not) be true, but not both.
In other words, if the cost of a lawyer and a limited licensed technician are essentially the same, people will go to lawyers. Only if limited licensed technicians are sufficiently less expensive than lawyers will solos be forced out of business. Both Granat and Zorza offer some important thoughts to consider. But as I tend to do, I disagree with both.
Their perspectives are skewed by what I have long railed against, the myopic effort to fix problems without considering how the entire legal ecosystem works. The ABA Committee made this mistake (shocking, right?), and it’s repeated in the critique of the task force draft report. Neither analysis of the issue takes into account critical considerations. What critical considerations? I’m glad you asked.
First, law schools continue to churn out more lawyers than society can sustain. By “sustain,” I mean more than keep busy between games of Angry Birds, but provide adequate income to both pay the bills, provide a decent life and justify the price and opportunity costs of law school. Note that whether law school is two or three years is immaterial.
How do I know this? Because nobody argued about its length when the money was good. We’re now in desperation mode, and so we struggle to save money wherever possible for the kids. But truth be told, if there was opportunity sufficient to pay the freight upon completion of law school, the issue of law school length would be (forgive the pun) largely academic.
Second, the assumption that limited licensed technicians would require some sort of post-graduate degree, thus increasing the cost of the occupation to the point where it competed with going to law school, is misguided. An undergraduate major would be more than sufficient, if well conceived (as I explain in my Legal Practitioners post), and thus add no cost that wouldn’t otherwise be incurred.
Third, the downward spiral of solos’ fees would end and reverse if lawyers could get back to being lawyers, doing the more sophisticated legal work we’re trained to do rather than scrambling to make a living by pushing paper.
Fourth, the ability to provide low-cost legal assistance in limited, routine matters to people who need legal services would be fulfilled in far better fashion, and at a far lower cost, in the long term by creating the separation between the lawyer function and the limited licensed technician function.
People need low-cost legal services. Lawyers cannot provide them without sacrificing their own economic viability. The Legal Practitioner can, provided we don’t overkill the position with excessive requirements and demands. If properly handled, there should be no overlap, either in services or costs, between the two. Once supply and demand of lawyers is adjusted to its proper level, this will happen naturally. Of course, law schools must close and law profs forced to get real jobs, but hey, bummer, it’s not about them.
The creation of limited licensed technicians, or Legal Practitioners as I prefer, will take a few years. So too will the wind-down of law schools. In the interim, this will do nothing to help the extant need for legal services by those who can’t afford them, though hungry solos may fill the need. It doesn’t help those who came out of law school the past few years, are deeply in debt and have no place to go. It doesn’t help law profs, many of whom will lose their jobs and most of whom will suffer a significant loss of income. It doesn’t help about half the law schools, which will have to close.
But once done, it will give the legal profession a chance at survival as a noble profession again. And once done, it will give society access to legal assistance that it needs at a cost it can afford. And if not done, and the legal profession ceases to exist and the people who used to be called “lawyers” are reduced to desperate, hungry businesspeople bent on selling cheap, ill-fitting suits because that’s all people are willing to pay for, no one will be better for it.
It will be years before we dig our way out of this hole, and there will be pain suffered by all in the process, but society needs strong, competent lawyers (whether it wants to admit it or not), and we (meaning all the stakeholders) have spent the past few decades doing everything possible to enjoy immediate gratification and a quick buck at the expense of our profession. There is no magic bullet solution, but there are answers. They just require a broader, long-term vision and the will to pay the price of the last couple decades of greed and self-serving ignorance.