When Anybody Can Practice Law

Josh Blackman, who attends the future of the new normal of reinvent law-type conferences, brought this back:

I recently attended the excellent CodeX FutureLaw 2014 Conference, which for the first time, had a solid discussion on the implications of legal ethic to potential innovations in the law. Serving as the bearer of bad news from the ABA was Will Hornsby.

Will summarizes the ABA’s position on UPL–in short, this is an issue for the states, not the ABA to decide.

Two fundamental regulatory obstacles limit online legal service models – the unauthorized practice of law and the ability to capitalize legal services. What we all need to realize clearly and at the beginning of this conversation is that the practice of law and the rules and laws that pertain to these issues are regulated in the US at the state level. This is the difference between the US and the UK and Australia.

Okay, nothing new here, except for those who pray at the altar of Jobs that the federal hand ends state hegemony and makes us all virtual flat-world lawyers.  The fact that Will needed to explain this is itself interesting, only for the point that one-worlders still grapple with the basic constraints, which they just can’t wrap their heads around because it doesn’t fit their paradigm.

But whatever. The rest of us are well aware of who admits us and regulates us, even if reinventers deny the earth is round.

But Hornsby goes on to make a more important point:

But, be careful of what you wish for. What happens when the practice of law becomes unregulated and anyone can provide legal services? It is not likely a niche online legal service provider fills that space. Instead, the insurance industry become the resource for estate planning documents, no doubt giving discounts to customers with advance directives that prohibit resuscitation. Financial institutions provide incorporation services for their customers as they now provide trusts. Realtors assume the function of land conveyances. All this low-hanging fruit that had been a profit center for lawyers and is transitioning to online legal service providers is likely to be assumed by industries that will have collateral economic advantages. They will do it cheaper and on a larger scale than any of today’s online providers. As we confront the ethics battleground, it needs to be done strategically, with great precision, down a path that avoids the minefields.

It may be crap law. It may be deeply, inherently conflicted. It may be flagrantly incompetent, but it will only carry a one year, parts and labor, limited warranty.

When the reinventers argue for their technological Utopia, they spin yarns about shining cities atop magnificent mountains.  Nobody ever mentions the slimebags in the gutter.  They attribute to themselves a grand vision of the future, but they’re so busy looking up that they can’t be bothered to look down.

Had Hornsby been speaking to a less august group, say to lawyers who serve individuals who don’t demand marble and mahogany waiting rooms, his examples might have been different and decidedly less savory.

If you think a bank or insurance company snatching the low hanging fruit sucks, consider the corner bodega fulfilling the legal needs of their patrons, amidst a sale on chorizos and platanos.  Why not? If you think about it, it’s really quite a good setup for all involved, provided legal education, skills and experience aren’t needed.

But, you say aloud despite no one listening, this is just totally, off-the-wall, stupid and crazy.  Surely no one with any credibility would suggest that anyone can offer their services in the law, without anything, skills, education or experience, to suggest the most basic competence to do so?  Is there anyone, anyone at all, that totally batshit crazy?

Second, Legal Information, the Consumer Law Market, and the First Amendment, by Renee Newman Knake (I reviewed an earlier draft of this):

If legal information is speech within the meaning of the First Amendment? If so, to what extent may government constitutionally regulate the creation and dissemination of legal information, particularly by lawyers? The answers to these questions hold significant implications for lawyer regulation, the consumer law market, and First Amendment jurisprudence.

Yes. Yes there is.

7 thoughts on “When Anybody Can Practice Law

    1. SHG Post author

      Geez, one typo and I get excoriated. I love them, after they’re left to blacken in a paper bag. What? You think I don’t know stuff?

  1. Richard G. Kopf


    Shameless pimping of my blog to follow:

    Regarding the deregulation of the “paralegal” market and section 2255 motions in federal courts, see my post of today.

    All the best.


    1. SHG Post author

      Let me do the pimping for you. For anyone who needs a concrete example of the point of my post, see Judge Kopf’s. Ironic that we both discuss such similar matters today. Or perhaps the opposite of irony?

  2. KP

    It is a sad comment on our overall society that “law” has become so opaque that we need someone to handle it for us. How can we be expected to live under these laws if we are instantly assumed to be too stupid to understand them.

    Laws have only enriched and entrenched those in power as they become further and further distanced from ordinary citizens. It becomes a self-generating system as laws pile up on top of each other to explain or modify those laws before them.

    Surely if two citizens cannot take their case to court and describe it themselves then the law has become too complex and cumbersome to be useful.

    1. SHG Post author

      The fallacy of this comment has been explained over and over. It’s way past tedious. But then, there is always someone who needs to say this, no matter how ignorant it may be. So, glad you had the chance to get it out. Hope it made you feel better.

  3. alpharia

    Yah! I’m moving to America.. see I once read a Medical book, the US Constitution and “how to build a rocket in your own backyard”.

    I’ll become an authority on Rockets, whilst practicing constitutional law and attending to my own injuries due to the rocket flying!

    Now to just get admitted , though for some strange reason I’m thinking my ‘admitted’ might be more along the lines of the guys in white coats with a net and a nice padded room

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