When Gillian Hadfield, a law professor at the University of Southern California, proposed in  Washington Post op-ed that Wal-Mart be allowed to field its own law firm, it made a splash.  Lawyers hated it, as an affront to professionalism, and non-lawyers hated it because it involved lawyers, and they just plain hate lawyers.

John Eligon at the  New York Times raises the issue of whether the time has come for the United States to join Australia, and now United Kingdom, by allowing non-lawyers to own law firms.

Imagine an afternoon trip to a Wal-Mart: You pick up socks, a flat-screen television and a microwave meal. After checking out, you stop in the photo studio at the front of the store for a family portrait, and then shift one booth over to a lawyer, who drafts your will or real estate contract.

The concept may not be that far-fetched.

The concept, in fact, has some very interesting aspects, not the least of which is the potential to match the needs in obtaining inexpensive legal services with the needs of lawyers to make a living.  The volume of business that could come through Wal-Mart’s doors could prove staggering, and eliminate much of the problem for both sides of the equation.

The Wal-Mart lawyer, by having a steady stream of walk-in clients, no drain of time and resources for marketing, collections, managing a business, free consultations, and all the other things that suck time out of a day that relate to the business of being a lawyer rather than its practice, could serve more clients for less money, with efficiency and effectiveness, and provide lower cost services while earning a very respectable living, better than they could do on their own.

Are you too good to serve Wal-Mart customers? 

But there’s a problem, as Wal-Mart, in exchange for giving you an office in its store, wants something in return.  It wants to own your business.  Well, actually its business, where you’re an employee and you work for Wal-Mart.  Yeah, there’s always a rub.

“The idea is that nonlawyers might not have the same codes of ethics,” said Andrew M. Perlman, a legal ethics professor at Suffolk University Law School and the chief reporter for the American Bar Association’s Ethics 20/20 commission, which is preparing the draft recommendation. “They might not be bound by the same sense of professional responsibility and might push the lawyers to do things that they should not be doing to chase the dollar rather than abiding by the rules of professional conduct.”

One ethical concern is about lawyer-client privilege, as shareholders would have an interest in knowing who the firm’s clients were and the specifics of their cases. Another is that lawyers might feel pressured, for example, to settle a lawsuit to make shareholders happy, no matter what the best interest of their client was.

These aren’t just “ideals” of little practical importance, but factors that guide lawyers every day.  The reason they seem less compelling to non-lawyers is precisely the problem, they don’t live their professional lives in a way the places the interests of client above self, and see it as some archaic remnant of more genteel days. 

That’s the difference between a lawyer and a businessman.  The businessman puts profit first. The lawyer puts client first.  True, that isn’t the case with the Slackoisie, but the solution is to raise the Slackoisie to a minimal professional level, not reduce lawyers to the level of the Slackoisie.  Yet this isn’t the view from the gutter.

But such thinking derives from the naïve assumption that the lawyers “who currently own law firms are not motivated by profit,” said Ken Fowlie, the executive director of Slater & Gordon, an Australian law firm that was the first in the world to become a publicly traded company.

If anything, going public has increased transparency, Mr. Fowlie said, and has separated the ownership from the lawyers, giving the lawyers more distance from business side pressures than in traditional partnerships.

This conflates distinct issues. Obviously, lawyers want to be profitable so we can feed the kids like everyone else. That’s not an issue.  The question is how profitable, and what we’re willing to do, and not do, to achieve the highest possible profit.  Business will suck the blood out of customers if needed to gain a profit. Lawyers (in an ethical world) will not.

Lawyers profit motive is strong, but different.  We love profit as much as the next guy, but temper our yearning with our primary duty to the client.  Sometimes, we have to bite the bullet and let profit suffer to fulfill our obligations to the client.  We would be laughed out of the board room for this.

So the question changes from allowing non-lawyer ownership of law firms to how non-lawyers can get their money out of the deal while letting lawyers fulfill their duty unfettered by overlords with a different ethical perspective.  While this isn’t my  first choice of a long term solution to the problem of unaffordable legal services, I believe this is a problem that can be overcome with some nifty Chinese wall-type structure of corporate joint venture.

Not every lawyer will want to be a Wal-Mart lawyer. Nor will every client.  There’s no necessary correlation between working at Wal-Mart and providing low-rent services, just as the Sony TV sold there is no different than the one sold for twice the price at a boutique. 

There will be inherent limitations to the amount of time available, and it’s not entirely clear that the cost of legal services will be sufficiently reduced by the supply chain savings to satisfy the public’s needs.  If a lawyer’s time is reduced from $150 an hour to $100, is that enough to make his services affordable?  Probably not.

But at least a person can walk into a lawyer’s office, conduct a proper interview to determine needs and solutions, and look a lawyer in the eye without having to mortgage the farm.  It’s a real start in the crucial discussion of how the future of lawyering can serve the needs of real people, and holds the potential of preserving the profession while providing for the legal needs of people.