Jacob Gershman at the WSJ Law Blog opens his post with a question:
When it comes to regulating the legal profession, why is it that only lawyers call the shots?It’s not asked merely as a rhetorical question, but a prelude to the latest bit of academic intrusion into things they don’t firmly grasp and serve to distract from the alternative reality where academics clean up their own nasty mess.
There are good, sound, thoughtful arguments to be made on such overarching questions. Unfortunately, the author of a new law review article, Washington and Lee Law School prof James Moliterno, doesn’t appear to be aware of them.
“The legal profession is ponderous, backward looking, and self-preserving,” Mr. Moliterno writes. “I recommend a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises.”Are we ponderous, backward looking and self-preserving? Hell, yeah. Oh wait, Moliterno didn’t mean that in a good way. There is a reason why the legal profession makes glaciers look speedy. It’s not necessarily a good thing, but that doesn’t make the alternative, flinging ourselves mindless into the future, throw every facile idea against a wall and see what sticks, a good thing either.
One of the foundational problems that neither academics nor non-lawyers seem prepared to grasp is that we holds people’s lives and fortunes in our hands. We cannot, for the sake of innovation, risk a person’s life. Our own lives? Maybe. Someone else’s. No way. There is no post-mortem where we get to say “sorry about that life sentence, but I really wanted to try something new and cool, and it just didn’t pan out nearly as well I hoped. Bummer, right?”
To steer a better course, he suggests giving non-lawyers a turn at the wheel. This means, he says, letting them serve in leadership and policy positions at the American Bar Association, which sets the standards and codes of the profession. He thinks state bar associations should also open their doors.
It’s not that Moliterno argues that non-lawyers should be involved in the process. To hear what people outside the legal profession think and experience would be enormously useful to lawyers. Any information that adds to our base of knowledge and understanding is useful. But that’s not what he’s saying. Not by a long shot.
Writes Mr. Moliterno:
It’s not clear who “creative nonlawyers” are, or whether they have their own department at Walmart, but I’ve got my doubts that such a group has the magical power of predicting change any more than police have the magical power of knowing who is guilty before they collect evidence. The rationale for embracing creative nonlawyers is that the profession will otherwise be dictated by government or the forces of competition. It’s unclear what role government will have, but if the forces of competition were at work, half of American law schools would be closed and lawprofs like Moliterno would have to work for a living.Turning to creative nonlawyers presents the most advantageous way for the legal profession to grow and change on its own terms. Creative nonlawyers can predict and manage change that is likely to result from competitive forces. In the United States, changes made by the profession itself are highly likely to dampen pressure for change dictated by government. In the absence of self-reform, change will be effected either by government or the forces of competition.
And what are some of the deeper, more concrete reforms he promotes?
“Lawyers still function on the state-by-state licensure system. A lawyer cannot walk across the line from Ohio to Pennsylvania and engage in law practice,” Mr. Moliterno tells Law Blog, as an example. “We would either move to a national law license or a very relaxed form of admission-on-motion system, allowing lawyers to much more freely cross borders.”This may come as a surprise, but you can walk across the border in upstate New York to Canada. And down in Texas, to Mexico. Geographical proximity really doesn’t have much of anything to do with the ability to move into a different political entity, with its own laws, and magically know what they are. It’s not that Ohio and Pennsylvania are physically far apart, but that each is a separate state that gets to make its own laws and run its own court system. I know, crazy, right?
And that’s without mention that we now have these machines that take human beings, including lawyers, into the air and in a few hours, transport them to other states, like Kansas, or even Iowa. You no longer have to walk. And these states too have their own laws and court systems. While physicians have the benefit of human bodies being relatively stable across state lines, the corpus juris tends to vary more widely. Yet Moliterno appears to be unaware of this.
“If there were some nonlawyer ownership of law firms, or more generally legal services delivery, the owners would find it in their business interests for the lawyers to have insurance and follow the ethics rules,” said Mr. Moliterno, who just wrote a book on a similar theme.That’s right, segues are for kids. So nonlawyer ownership of firms would encourage ethics rules? Because maximization of shareholder profit has worked so well in making corporations ethical? Oh, he’s written a book. Never mind.
And finally, the last resort of scoundrels and those who have never practiced law:
The professor also predicts that non-lawyers would encourage the growth of legal services geared toward middle and low income people. “Entities like LegalZoom and Rocket Lawyer would flourish rather than be sued for unauthorized practice of law. Much more creative systems of service delivery would be pioneered without the resistance of the legal profession,” he said.The snarky response is that cutting law school tuition by 80% would do a lot more to encourage legal services geared toward middle and low income people, but I don’t see Professor Moliterno offering to give back his salary. But that’s snarky, and I won’t do it. Instead, I merely refer back to my earlier writings that note that fill-in-the-blank forms aren’t really legal services, but rather a second-rate palliative for the poor that puts them at grave risk without their appreciation. Or, apparently, Moliterno’s.
And in case you’re wondering what James Moliterno, who has embraced the kitchen sink approach to reform, teaches, that would be legal ethics to law students. As for trench lawyers who see immediately the absurdity of these reforms, if we don’t start playing a role in questioning the efficacy of such scholarship, expect that the downward ethical trajectory of the legal profession is just going to get worse. Or we can just leave it to the lawprofs, because they have such a firm grasp on the practice of law.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Sir, (good morning) maybe it’s due to suffering from the dreaded (‘NLS’) non-lawyer syndrome or something more serious like one of the Us vs. Them distinction diseases’ preventing me from being able to ascertain as to how in the hell the Professor’s ideas will contribute to reforming the criminal justice system.
Despite him being pro incorporation & pro non-lawyer (sorta) with every lawyer being a non at some time or another and at great risk of daring to comment on the topic meant for lawyers -I’m also calling bullshit! *All the way from the great state of confusion aka: Texas, where only 3% of all criminal cases are allowed to enjoy the full services of real “trench lawyers” & the art of infiltrating the niche is as much cool as it is bidness-as-uzul. Try reforming that in a non-lawyers’ shoes & see where it gets you.
As always, thanks for allowing this non-lawyer into your digital home away from home.
Always happy to have you stop by. I don’t think he gave the criminal justice system much thought in framing his reforms, but that happens a lot. They have an idea in mind and fail to consider how it would affect the broader system, thinking instead about how it would work for a trusts & estate lawyer and inductively reasoning that it would therefore be a great idea.
Even then, it doesn’t do much of anything to help much of anyone.
While I don’t disagree completely with the post, the following statement is a bit dubious and maybe melodramatic.
“we holds people’s lives and fortunes in our hands. We cannot, for the sake of innovation, risk a person’s life.”
Yes, you are responsible for other peoples lives. When Engineers design new bridges or airplanes, they are doing just what you say you cannot. Doctors are also the same, they have to try new things or we would still be back in the days of bleeding as the number one cure.
The legal profession could better embrace innovation, it needs to learn as the engineering profession and medical profession have how to do it safely in a controlled manner so that the benefits of innovation outweigh the potential costs.
Also, not every legal task is a life and death decision. Some do have potentially lethal consequences but some are less severe and may only involve small sums of money.
Creative nonlawyer is a new one for me (and for your spell checker). Do they have jokes about creative nonlawyers?
Well, let’s think this through. So physicians have to innovate, right? And they test, and do studies and test, and do more studies, to try to make sure they don’t kill someone in the process. It’s not like somebody wakes up one day and says, “let’s cut people’s heads open, poke around and see whether it works.”
Engineers do all sorts of calculations, tests, etc. before building something that will fall down on top of nice folks. They don’t say, “let’s build a bridge our of mayonnaise and find out whether it will stay up when a truck goes over it.”
Yet all these “innovations” promoted for the law lack any methodology for testing without putting people at risk. The law evolves slowly for this reason, but these are the full Monty of radical changes based on barely theoretical assumptions. Nobody is calling for controlled evolution; that’s the ponderousness we’re ridiculed for.
And finally, even cases involving lesser jail time and smaller sums of money can matter to the people whose (parts of) lives and (small) fortunes are involved. Don’t be too cavalier with other people’s lives and money. It matters to them, even if not to you.
I dunno. Just uttering the phrase aloud makes me chuckle.
Nonsense, we can all benefit from his vast experience as a practicing lawyer. Just look at it: Admitted to practice in West Virginia; Staff Attorney and Prison Project Coordinator, West Virginia Legal Services Plan, Inc., 1980-82
Uh, wait there should be more there, right?
Who needs practical when there is theoretical galore?
You say “Nobody is calling for controlled evolution; that’s the ponderousness we’re ridiculed for.”
My point is that the current “ponderous evolution” does not resemble the careful controlled evolution done in Medicine and Engineering. I am not advocating Full Monty change.
My point is that the current system of evolution in Law does not appear to be as efficient and safe at change as other disciplines. You seem to think I am cavalier with other people lives and money but, lack of change and progress can be worse for people than some change.
The current process has given us junk science in the courtroom, a rate of wrongful convictions that seems appalling and a lack of access to legal services for many. Peoples lives and money are being impacted daily. Improving the system of change in a controlled manner would be a good thing.
The other point is that just because you have a critical job that holds peoples lives in your hand, does not mean that the system should not be innovative. As another example, Aviation has been very innovative and the safety improvements have been impressive. Again aviation has relentlessly worked on the systems of self improvement and correction while at the same time maintained a very conservative approach in design and operation.
I do not see this relentless pursuit of self correction in the Law that I see in Engineering, Medicine or Aviation. When someone is hurt in these fields, questions are asked, changes are made. You have written too many articles where people are hurt by the Law and I don’t see you highlighting this great improvement cycle.
First, there are indeed people calling for evolutionary change. Does anyone come to mind for you? I can think of a few.
Second, law isn’t science, but art. Comparing it to science is convenient but unhelpful.
Third, the examples you offer in law, junk science, wrongful convictions, lack of access for the poor, exist at the confluence of law and ordinary citizens. Will change help or take a bad situation and make it significantly worse? If non-lawyers, who are already involved in the system as jurors, are blinded by their bias, their reliance on “junk science,” and their near total lack of concern for the indigent, does this provide a good reason to give them ever greater influence?
When problems exist, people have historically sought change without realizing that change doesn’t necessarily make things better, and can make things far, far worse.