While academics are trying to resuscitate the future of law zombie, Richard Susskind, despite his having suffered the brutal demise of having been right about nothing since his singular glory of predicting email would someday be accepted by lawyers, practitioners are still struggling with the notion that ethics and competency can survive.
Briefly, the sad facts. The lawyer who is the subject of the ethics decision is a solo practitioner serving the Polish community in Chicago. Client walks into the lawyer’s office, and asks the lawyer to draft a power of attorney and quitclaim deed. The client explained that his friend was in the hospital and wanted to give the client his house and property. The lawyer – without speaking to the client’s friend or investigating the friend’s competency – drafted the documents and charged $200.
“Briefly” may be an overstatement. There’s more.
It’s not hard to guess what happened next: the client subsequently took the documents, forced the friend to sign them in front of a notary – and subsequently depleted the bank accounts and took possession of the house contrary to his friend’s wishes. The client’s fraud was discovered by the friend’s doctor who reported the matter to the Public Guardian’s office (PGO). The PGO filed suit to recover the house and brought a malpractice action against the lawyer, which yielded an $80,000 settlement.
To recap, lawyers did something incredibly stupid, got nailed, earned $200, lost $80,000. And then, wait for it, got reprimanded for it, but with a dissent.
I believe my colleagues’ opinion will have negative and far-reaching ramifications beyond this matter. If a client asks a lawyer to prepare a power of attorney for the client’s mother or father, must the lawyer investigate and determine whether the client’s parent is competent to give power of attorney?
Before getting to the answer to this question, why raise it?
I also am concerned that the majority’s ruling will spell the end of affordable powers of attorney, and possibly even lawyer-prepared powers of attorney. Lawyers will be loath to take on potential liability if they are held responsible for their clients’ actions.
There you go. If we expect lawyers to be ethical and competent (yes, of course the lawyers shouldn’t have been complicit in a fraud by doing the papers), it means they won’t be able to glom up that cool $200 fee. What about the poor people who need shitty, unethical lawyers at a really cheap price?!?
As Carolyn Elefant notes, this could well drive people into the arms of LegalZoom for their $9.99 Power of Attorney form, and starve the poor, unethical, incompetent schmuck for lack of his $200 fee. Is that what we want to see happen?
No, but yes. This is a crossroads questions in the future of law that academics gloss over in the idiot’s rosy language of feelz. Is it better to enable $200 lawyers to provide unethical, incompetent services or to deprive those who want cheap legal services of the complicity of bottom feeders?
Carolyn’s perspective is to promote the interests of the starving solo. And what she sees is $200 being lost to the solo and going toward LegalZoom forms and a mocha frappuccino instead. I get her point. Solos need to earn a living or they disappear. People too cheap to pay for competent legal services will turn to form sellers rather than lawyers. It’s a lose-lose.
But it’s crossing a line as well. Once the need to make some moolah becomes more important than the necessity for ethical and competent services, lawyers become laundry detergent rather than professionals. Once people are told that mad-libs is a totally acceptable substitute for competent and ethical legal advice, that’s the game they’ll play.
There is no guarantee that lawyers can earn nickels and dimes doing shoddy work, and there is no question that what happened in this case was that a lawyer blew it and deserved to be spanked good and hard. There is similarly no guarantee that the poor and the cheap are entitled to the full panoply of legal services at whatever they can pay, or feel like paying. And lest we shed a tear for the A2J crowd, cheap and incompetent isn’t really as huge a benefit as the academics want to pretend it is.
There are alternatives to expensive “bespoke”** legal representation. I’ve offered my ideas. The State of Washington glommed onto them without so much as a hat tip, but that’s okay. But the key here is that it puts no cash in the solo lawyer’s pocket.
It’s not that I have anything against lawyers making a living. Indeed, I’m a big fan of it. But not at the expense of ethics and competence. There is no future of law if it means that lawyers can suck and make a buck. Of all the options, including the Zoombies, this is the worst and least acceptable.
If the demand for ethical and competent legal representation is not so elastic as to allow for payment to lawyers of a viable fee, then there is no reason for lawyers to exist. Maybe LegalZoom forms are the best answer, as bad an answer as they may be. If people prefer cheap mad-libs to lawyers, then they’ve made their choice.
*No, this is not a typo. This was intentional. My humor and irony are totally wasted in the internet.
**This word is used to convey the impression that legal representation is really just a commodity. It’s not.