Short Take: California Bar Is (Quietly) Doing Away With Lawyers (Update)

Lawyers, right?

D. APPROVAL OF ALTERNATIVE BUSINESS STRUCTURES/MULTI-DISCIPLINARY PRACTICE SUBCOMMITTEE REPORTS AND RECOMMENDATIONS FOR PUBLIC COMMENT CIRCULATION

    1. Recommendation: Confirm that the scope of the Task Force’s charter includes entities which may or may not have lawyer ownership or operational management and/or control.
    2. Recommendation: Entities can be composed of lawyers, non-lawyers or a combination of the two, however, regulation would be required and may differ depending on the structure of the entity.
    3. Recommendation: Non-lawyers will be authorized to provide legal advice and services as an exemption to UPL with appropriate regulation.

  1. Recommendation: The models being proposed would include individuals and entities working for-profit and would not be limited to not for profits.
  2. Recommendation: Lawyers in traditional practice and law firms perform legal and law related services under the current regulatory framework with the intention of expanding access to justice through innovation with the use of technology and modifications in relationships with non-lawyers.

All that law school. All that bar exam. Who needs it? The opening of the guild has been one of the “access to justice” crowd’s key solutions, because lawyers are expensive and people either can’t afford them or prefer not to squander their disposable savings on them when there’s always a new iPhone around the corner. Of course, lawyers have children who like to eat every night, so they have to earn a living. And then, there’s the cost of entry, which suggests that they might want to earn a decent, if not lavish, living, plus pay off law school debts.

“Non-lawyers will be authorized to provide legal advice and services” has been a rallying cry for those who cry over A2J and not so much over starving lawyers. The question is whether any of the hurdles over which lawyers are required to jump really matter, or matter enough that they should preclude any random person from hanging out a shingle or showing up in court.

The California Bar has taken a bold leap and decided, “no, we don’t need no stinkin’ lawyers.”

Law firms would be open to ownership by anyone, opening the curious potential of buying some law off Amazon when it goes on sale. The ethical constraints imposed on lawyers wouldn’t be involved when non-lawyers run the shop, so the potential for cheap, fast and conflicted law is wide open. Competent law may be another matter. After all, if your law-provider tells you that filing a UCC 1-308 will keep you out of prison, who are you to doubt her?

Are the lawyers in California aware of this? Are they on board with this? There has been no hue and cry over breaking the wall between the crime formerly known as the Unauthorized Practice of Law and the crime of lawyers expecting to get paid by people who need legal services but would prefer them cheap, if not free.

There have been forays into new ways of providing less expensive legal services, such as Washington State’s 3LT program, which hasn’t panned out nearly as well as the A2J folks would have expected, and hasn’t been adopted anywhere else. If that novel approach is a failure, is eliminating the necessity of lawyers being lawyers a wiser solution? The State Bar of California apparently thinks so. I wonder if current Cali lawyers can sell their diplomas on eBay to make up the income lost to Joe’s Law Services and Lawnmower Repair? After all, it’s not as if the poor deserve competent counsel.

Update: In invited California State Bar trustee, Joanna Mendoza, after she twitted that this post  was “uninformed and narcissistic,” to leave a comment to explain why it’s wrong. She twitter her response, but in an excess of fairness, I provide it below.

She seems nice.

H/T Keith Lee

57 thoughts on “Short Take: California Bar Is (Quietly) Doing Away With Lawyers (Update)

  1. Jeff

    I’d like to say I’m surprised, but it’s California, where the stupidest idea is treated with the same gravity as a well reasoned argument. Seems perfectly consistent here. I’m sure this will turn out swimmingly.

    1. Jake

      Laugh all you want, there’s a reason this is happening in California first and it’s not because the people in Silicon Valley are stupid.

      1. Nigel Declan

        This has the potential to be “outsource your marketing, outsource your ethics” on steroids.

    1. Elpey P.

      As they say, it’s not the fixing that’s expensive. It’s the knowing what to fix.

  2. Black Bellamy

    I don’t know, it sounds ok to me. I’ll go to Amazon, filter the attorneys with 5 stars or whatever, discount the obviously fake reviews, and make my choice. Brake pads, lithium batteries, freedom, it’s all the same.

  3. LocoYokel

    Sounds like a real Menckenian solution. Couldn’t happen to a more deserving state than good ole CA, can’t wait to see the results.

  4. Jake

    Change is coming. We’ve all seen entire business models spring forth and go bust in the last five years.
    Do you all really think your little corner of commerce was immune?

      1. Jake

        I’ve got better things to do with my time than service the technology that will be doing the hard work and explaining the results to people. First, there will still be regulation, second, the people that will eventually replace 90% of the lawyers in the country are going to basically be technicians.

        I tried to explain this to my Uncle (a very powerful atty) recently but he didn’t want to hear it. Maybe you and the SJ audience will listen. If you’re the guy sitting at the top of a firm that only answers the questions that haven’t ever been answered before, your job is safe because you’ll be dead before the tech that replaces you comes online.

        On the other hand, if you’re a summer associate at big law, don’t count on retiring as the guy on top. Or even as a lawyer for that matter.

        I could go into excruciating technical detail about why this is the case with a lot of examples of the tech already online and being used by attys but you’ll just shoot me down and shit all over me so I’ll spare you the gory details.

        And don’t think this ends at California. Silicon Valley needs to do supervised machine learning on real world scenarios somewhere. It might as well be close to home where the politicians are in their pockets.

          1. Jake

            Sigh. Lawyers. I’m not sure a machine will ever figure out how to be as cocky.

            Just because you don’t know something doesn’t mean nobody else knows it. And just because you’re not paying attention to the patterns unfolding in other industries doesn’t mean they are not going to unfold in yours.

        1. Scott Jacobs

          I like how you can’t accept that your uncle is right.

          I mean, what could an attorney know about this?

          1. SHG Post author

            There might some other issues as well with Jake’s conflation of industries and professions, but it would be unkind of me to point that out.

            1. Jake

              GTFO Scott. A lawyer is a professional that works in the legal industry. A doctor is a professional that works in the medical industry.

            1. SHG Post author

              Jake, have you noticed how, yet again, you made this all about you? Much as I love you, and you love you, does everyone love you that much?

              You don’t have to reply to this. Your head won’t burst.

        2. Jeff

          Oh, Jake, you sweet summer child.

          If law was as on/off, I/O, push/pull as you seem to believe then we wouldn’t need lawyers at all. Or judges for that matter. you’d check the database, see the applicable law, off you go.

          That there are interpretations of the law that may not be obvious and are subject to adjudication appears to escape you. I wish you well in your endeavors.

          Actually, I think I recall a post here about this subject (or several), I’ll see if I can dig it up for you.

  5. N. Freed

    The real question Californians want answered is whether or not the law they buy from Amazon comes in recyclable packaging.

  6. Grant

    One thing not on the agenda: Mandating malpractice insurance.

    (At least here in flyover NJ, if lawyers incorporate, they need to insure. If you are playing Russian roulette with new categories of legal service providers, you should at least have a plan for how to pay for stacking the corpses.)

      1. Grant

        Well, the technical term for malpractice insurance by people who can’t commit malpractice is an ‘errors and omissions’ policy.

        But that’s no fun to say.

  7. MonitorsMost

    Good. Just keep the non-lawyers out of criminal defense and we’ll be fine. If you want to hire a chucklehead to handle your divorce, that’s fine and dandy. And probably not a significant change as your law school “trained” family law attorney was probably a chucklehead anyway.

    1. SHG Post author

      There are many aspects of law that could be, and perhaps would best be, handled by “technicians.” That’s not quite the same as letting any chucklehead hang a shingle. Maybe just specially trained chuckleheads.

    1. Miles

      Should someone tell her that SHG already included that same link she does in the post, and it’s just as unavailing when she tweets it?

      1. SHG Post author

        I’m pretty sure that’s why she called my post narcissistic, and I would be sad if she called me a name again.

        1. B. McLeod

          But, very useful update, establishing that the stupid idea was actually NOISY. That just makes all the difference. Of course they’re not going to be quiet about a stupid idea they’re this proud of. They may well have achieved access to justice in our time.

          For the people who didn’t make it as “life coaches” or “mindfulness” instructors, this could be just the ticket.

          1. SHG Post author

            It’s funny, since I used the word “quiet,” as in not making it a big issue so lawyers were fully aware of it, rather than suggest they were concealing it, and she unwittingly confirms it by her best argument being that it was an open meeting. Another reminder why it’s fun to be on bar ass committees and hang out with the important official people.

  8. KP

    ” regulation would be required ”
    “with appropriate regulation.”
    Sounds like another bunch of bureaucrats expanding their market to keep themselves in high-end doughnuts. Anyone can do anything so long as there are just more and more regulations being written to stop them doing anything we don’t like!

  9. Eduardo

    I know a few disbarred lawyers that can’t wait to get back to work. Most are very competent, except for the stealing.

  10. Erik H

    There are two ways to make law cheaper.

    The old-style way is to have a relatively small number of relatively simple laws. Most folks can understand them; most folks can follow them; the disputes which require lawyers are a small proportion.

    The new way is to have a very large number of incredibly complex laws that carry civil and criminal penalties for saying the wrong thing; mowing your lawn wrong; painting incorrectly; and so on. Those complex laws will result in ordinary people who routinely an unintentionally violate some law or other–we are all federal criminals these days. Then, with the glut of people in desperate need of legal assistance, the same legislatures who cause the problem will “heroically” step up and provide untrained or incompetent advisors.

    I know I’m nuts, but: Rather than providing untrained folks, why not make the laws simpler?

  11. Steven Chung

    I asked some of the solo/small firm people I know at the local bar associations and not very many people knew about it. Most didn’t like it. They were wondering who was going to get rich from this (and I heard some interesting theories). Others were wondering why CA? Why not elsewhere first?

    But others seemed to be ok with it.

    One way or another, word will get out about this and solos in other states should know that soon they will be next.

    1. SHG Post author

      I’m disinclined to believe this is part of a nefarious scheme on the part of the bar to feed business to non-lawyer-owned pseudo law firms. Rather, I think they’re taken with the insipid A2J fantasy and want to do this so non-lawyer unicorns will prance on courtroom rainbows. But if CA lawyers are good with it, so be it. Better them than NY.

      1. Steven Chung

        You should check out the twitter posts of some of the Task Force members. Some of them seem to be salivating over who will benefit from this.

        I also don’t think there is anything nefarious about this. But it’s not like some non-lawyer equivalent of an LLLT will set up a solo shop. It’s just going to legalize what firms like Avvo, Rocketlawyer, etc. have been lobbying all along.

        1. SHG Post author

          These “legal space” non-lawyer law firms have been awaiting some bar to be foolish enough to allow them to legalize what they’ve been doing unlawfully, but without repurcussions, all along. To more sophisticated legal consumers, they use them at their own risk. But when it transitions into actual non-lawyer practice, without the constraints of 3LTs, the shit will hit the fan.

          The big legal space players know that if the screw up, they’re at huge risk. But consider the non-lawyers running pseudo-immigration shops and the massive harm they’ve done.

  12. Steven Chung

    Well, I spent a better part of today lurking at that meeting. The pretty much approved every recommendation on the agenda with a few semantic tweaks.

    They have not discussed how it will be implemented. Looks like they might save it for the future meeting Or they are punting this to the Board of Trustees, which Joanna is a member until December.

    In addition to the above, AIs will eventually be allowed to practice law once the technology is advanced enough.

    Anyway, I haven’t heard back from most of my colleagues in my very small sphere of influence. Some don’t seem to care. Others think someone else will take care of it – although I haven’t heard a peep about this from the California Lawyers Association or whoever is supposed to represent our interests. Or they are just too busy working or trying to enjoy life.

    Maybe this might work. But I wonder if in the future, the day will come when clients stop calling and solos will have sign up with Uber-lawyer to get cases. And “Uberlaw” and “Lyftlaw” will come if legal practice is deregulated. Of course, Uberlaw will set the prices, and the terms while we have to pay for the office fees, and the soon-to-increase bar dues.

    1. SHG Post author

      According to how the details flesh out, or how they eventually unwind after they craft regs that turn out to fail miserably to accomplish their lofty goal of JUSTICE!!!, Uberlaw may be the least of the problems. But hey, if CA lawyers don’t care enough to speak up, they get what they deserve. They’ve been warned.

      Just keep it to CA, please, as these social justice ideas metastasize fast these days.

  13. DaHull

    Like the ABA, the California Bar exists mainly to take money and make you evolve. But given that bar’s makeup? Non-lawyers as simple problem solvers or for off-the-rack commodity work might be a good idea. In CA legal world, junked cars try to run with Bentleys and Benzes.

  14. C. Dove

    I’m late to the game but, being a CA lawyer, thought I’d add my $0.10 on a point that may not be obvious from the twits responding to your twit (or the proposed changes to CA’s UPL): the State Bar of California’s prime directive is to protect the public *from* lawyers.

    This was not always the case. The State Bar used to be, more or less, an agency that was by and for lawyers. Over the last 5-10 years, however, the State Bar decided it needed to clarify its position as a regulatory agency. Coming out as the “new” (this is how the State Bar refers to itself) State Bar has encompassed many changes. Among other things, the State Bar literally rewrote the entire Rules of Professional Conduct so that attorneys are no longer referred to as “members”. (The State Bar’s apparent rationale was that the public might get confused. I take no position on this other than to point out that everyone knows licensed drivers are not “members” of the DMV.) The change has also encompassed a larger “Access to Justice” campaign which went beyond simply asking members, er, lawyers to donate money when re-upping their annual Bar card. This attempt to redefine UPL appears to comport with the prime directive and satisfy the social justice theme (even while it creates an interesting relationship between lawyers and non-lawyers when it comes to practicing law) . . . .

    1. SHG Post author

      At least the ABA is a meaningless organization, its only real authority being the accreditation of law schools, so when it was taken over by the unduly passionate and “members” fled to the point of bankruptcy, who cared? But CA lawyers will be picking up the pieces of this SJ wreck for a long time. Enjoy!

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