The legal profession remains strongly committed, politically and rhetorically, to core values of loyal client service, confidentiality, avoidance of conflicts of interest, and professional independence as the justification for opposing the provision of legal services by nonlawyers. As a result, the profession has been remarkably consistent over decades in its resistance to changing the form of regulating legal services. As an article from the Deborah L. Rhode Center on the Legal Profession at Stanford Law School notes, with an undertone of weariness,
Opponents of reform stand by their usual arguments: allowing nonlawyer ownership or practice will undermine the ethical values and independence of the legal profession and result in lower quality legal services, leading to potentially significant consumer and societal harm.Footnote 1
Given the magnitude of the problem of lack of access to legal services, it can be tiresome to listen to the “usual arguments” against loosening unauthorized practice of law (UPL) restrictions. The theme of this book volume, after all, is “rethinking the lawyer’s monopoly.” This chapter contends, however, that one of the usual arguments for prohibiting nonlawyers from providing legal services deserves to be taken seriously. The application of knowledge and training in law to the specific situation of another – the standard definition of the practice of lawFootnote 2 – necessarily involves a style of judgment that depends on extensive training and experience in the practice of law. Judgment is something that nonlawyers can develop, but any expansion of the rights of nonlawyers to provide legal services must ensure that the nonlawyer service providers thereby licensed have sufficient training and experience with the exercise of legal judgment.
The relevant judgment should be exercised with respect to the common good or the public interest but not as discerned directly by a practitioner. Rather, guidance is provided by a conception of the common good as embodied in the positive law of the political community and then applied by practitioners skilled in the craft of legal interpretation.Footnote 3 This is what I refer to as the public side of lawyers’ duties. The lawyer’s role is not defined exclusively by private-law duties; it also has a significant public-law component.Footnote 4 By this I do not mean the cliché that the legal profession should be regulated in the public interest, or that lawyers should practice in the public interest. Rather, I mean that lawyers contribute in a vital way to the rule of law by aligning the conduct of clients with public values as embodied in positive law, and not merely considerations of the common good or the public interest.Footnote 5
What lawyers do for clients has significance for democratic self-government and the rule of law. It follows that there is a serious risk that nonlawyers will not be capable of performing this function. If the concern of defenders of UPL regulation is only with the competence and loyalty of paraprofessionals or other nonlawyer service providers, tort and fiduciary law remedies should be sufficient to address them. It is more difficult to address the public side of the duties that nonlawyer providers of legal services will owe. It may be direct regulation by the judiciary, through the promulgation of rules of professional conduct and enforcement through grievance proceedings.Footnote 6 It also may occur through unwritten customs and norms acquired as part of a process of professional socialization. In any case, if nonlawyers are permitted to provide legal services, some attention must be paid to the public side, beyond the interest in protecting consumers from careless or inattentive service providers.
By making this argument sympathetically, I do not intend to object to UPL reform. The point, instead, is that proponents of reform should be prepared to counter the objection in its own terms. The hope is to move beyond the endless cycle of a promising reform idea being met by the usual argument, leading to stasis. The upshot of the argument is not that consumers in need of legal services should have only one option available, in the form of an expensively trained, fully licensed lawyer. It may be possible to meet the needs of consumers for legal services with a human or technologically enabled provider, as long as it is capable of understanding and complying with obligations related to maintaining the rule of law.
Section 4.1 presents three hypotheticals in which nonlawyers engage in what, under most states’ definitions, would constitute the UPL. The hypos show that the private duties owed by a provider of services to a consumer of those services do not exhaust the normative space. In addition, there are public duties having to do with the integrity of the legal system. The Reporter of the Third Restatement of Agency, Deborah DeMott, observes that “the law of agency does not by itself capture all of the legal consequences of relationships between lawyers and clients and between lawyers and others to whom the lawyer owes duties.”Footnote 7 The significance of that proposition is that private-law doctrines such as agency, negligence, and fiduciary duties cannot constitute the whole of regulation of nonlawyer providers of what have traditionally been considered legal services.
The more theoretical part of the chapter, Section 4.2, considers how the duties of lawyers must be understood as including this public-facing aspect. Some regulatory responses seem obvious, like promulgating codes of conduct for nonlawyer service providers. It may be the case, however, that the professional education and socialization of lawyers is more important than it seems at first for the preservation of the public aspect of the role of lawyer. The connection between the practice of law, legal judgment, the rule of law, and democratic self-government is available as an ethical ideal that should inform what lawyers do, even if reality departs from ethical ideals in many cases. This is a problem that UPL reformers need to take seriously, particularly if they hope to overcome the opposition of the organized bar to reform.
Section 4.3 concludes by briefly considering some of the options that are available for preserving the public-facing functions of providers of legal services when those services are provided by nonlawyers. Private-law doctrines from tort, contract, and agency law do not have any readily available “hook” to ensure that nonlawyer service providers interpret and apply the law in a way that is consistent with the interpretive norms of the professional community of lawyers. I do not have firm views about the best way to regulate nonlawyer service providers except to insist that the regulatory approach must be responsive to duties owed on both the private and public sides of the normative ledger.
4.1 Case Studies in Lawyers’ Private and Public Duties
This section presents three hypotheticals. Each of these cases involves legal services that could plausibly be provided by nonlawyers – either humans or some form of artificial intelligence (AI)-enabled technological means. The cases considered here, set in a hypothetical jurisdiction permitting the activities, involve services one could imagine an entrepreneurial group of nonlawyers offering to provide.
4.1.1 The Startup Company
Entrepreneurs R Us (ERU), an entity owned and operated by nonlawyers, has been approved through a regulatory sandbox established in State X to provide legal, accounting, and strategic consulting services to small businesses.Footnote 8 Among the services it provides is the preparation of documents to form an entity and to document relationships between the entity and its employees, suppliers, and customers. Employees of ERU do not identify themselves as lawyers, accountants, or consultants but refer to themselves as “business service specialists” (BSS). Two principals of a small software business, who had been acting as common law partners, sign a contract with ERU for the purpose of constituting the business as a corporation and drafting contracts with two engineers who had been providing services to the business. The principals tell the BSS that they would prefer to treat the engineers as independent contractors to avoid having to pay workers’ compensation and unemployment insurance and to withhold a portion of their Federal Insurance Contributions Act (FICA) taxes. The principals explain that the company is extremely cash-poor at the moment and that the engineers are delighted to work as independent contractors because they anticipate that at some later time they will be in a position to share in the bounty if the company is acquired by a larger technology firm, as is common in the industry. The principals therefore ask the ERU representative to draft independent-contractor agreements for the signatures of the two engineers.
Assume for a moment an omniscient perspective on the case and stipulate to a couple of facts: A reasonable lawyer would recognize that, in the totality of the circumstances, including the number of hours worked and the extent of control exercised by the principals of the business, the engineers should be treated as employees, not independent contractors, under federal and state law. There are no criminal penalties associated with treating the engineers as independent contractors – the business is not making any kind of affirmative representation that could be treated as a false statement of fact to a government regulator – but the business is obtaining an economic windfall by not paying for workers’ compensation, unemployment, and a share of the engineers’ FICA taxes.
4.1.1.1 What Should the ERU Representative Do?
The usual lawyer response is to first consider the prohibition on counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent.Footnote 9 The situation is a bit more complicated in the real world, but the hypo stipulates that treating the engineers as independent contractors would not subject them or the drafter of an independent-contractor agreement to criminal penalties, nor would it constitute criminal or civil fraud to treat them as independent contractors. Can a lawyer go ahead and draft the agreement? My answer – which I know many, if not most, lawyers disagree with – is no.
The negative response is based on the complex relationship between a lawyer and client, which is constituted in part by the law of agency but also includes a requirement that the lawyer act only within the limits of the client/principal’s legal authorization. As summarized in the Restatement of the Law Governing Lawyers, the most basic obligation of a lawyer is to “proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation.”Footnote 10 The italicized word indicates that the lawyer can do no more on behalf of a client than the client is authorized to do by the applicable law. It is inconsistent with agency and fiduciary law to believe that the lawyer, as an agent of the company, has the power to create a juridical relationship involving the company and the engineers that is greater than the power actually held by the company. The company does not have the legal authorization to treat the engineers as independent contractors when they should be deemed employees. Lawyers interpret and apply the law that confers power on individuals and entities, but they do not themselves create lawful power. They act only “on the footing of authority” derived from the law.Footnote 11
I do not believe the ERU representative should prepare the independent-contractor agreements. Even though the BSS is not a lawyer, I see no reason why they would not owe the same fiduciary duties of loyalty, competence, and diligence as a lawyer would, as a matter of the common law of agency. The interesting question is whether DeMott’s point holds for nonlawyer representatives as well. Recall that she characterized the law-governing lawyers as going beyond the common law of agency and imposing duties that are not neatly captured by the agency law duty to follow the instructions of the principal. This is not only because lawyers are subject to supervision by the judiciary but also because control in the attorney–client relationship is not as straightforward as it is in other agency relationships.Footnote 12 The client does not have a right to control all aspects of the lawyer’s provision of services. Rather, lawyers retain the right, and indeed the duty, to refuse to comply with the client’s instructions if it goes beyond the boundaries of what is legally permitted. This does not mean only refraining from counseling or assisting a client to commit a crime or fraud but, as in the startup company case, not purporting to do things for the client that are not adequately supported by the law authorizing the client’s conduct.
4.1.2 The Asylum Seeker
Affordable Immigration Services (AIS) is a for-profit corporation, owned and staffed by nonlawyers, providing assistance in connection with immigration matters, including applications for work authorization, adjustment of status, naturalization, and asylum.Footnote 13 Because it is not affiliated with a nonprofit organization, AIS has not sought approval as an accredited representative by the Department of Justice’s (DOJ) Office of Legal Access Programs.Footnote 14 Rather, AIS has obtained approval within the sandbox of State X to provide a wide range of legal services. It charges fees for its services and is organized under state law as a for-profit corporation.
A man from an impoverished nation in Central Africa has asked AIS for assistance with an asylum application. His basis for the asylum claim is having suffered persecution in his home country on the grounds of his sexual orientation.Footnote 15 Based on the man’s statements, made through a friend acting as an interpreter, a representative of AIS completed an application for asylum stating that the man is single, has no children, and was active in his home country in a social group for gay men. The application further claimed that the man was attacked by a religiously conservative, antigay group, which beat him up and threatened to kill him.
An immigration judge found the man’s application to be not credible. The man returned to the offices of AIS, this time with a different friend acting as an interpreter, seeking advice about the possibility of appealing the decision. After listening to an explanation of the appellate process, the man asked whether he could bring his wife and three children into the country after he obtained asylum. Taken aback, the AIS representative said the man’s application for asylum had stated that he was gay. The man replied that the friend he brought along the first time must have made a mistake. The man was supporting gay friends in his home country but was not himself gay. He said the first friend/interpreter must have also been mistaken in stating that the man was single and had no children, but the mistake was understandable since the friend only knew him in the United States, while his family was still in his home country.
4.1.2.1 What Should the AIS Representative Do?
If the representative were a lawyer, he or she would immediately turn to Rule 3.3(a) in the lawyer’s state of admission.Footnote 16 That rule prohibits knowingly offering false evidence to a tribunal and also requires lawyers to take reasonable remedial measures if they subsequently come to learn that material evidence they have offered was false.Footnote 17 The key mens rea term of knowledge is defined in the rules as denoting actual (subjective) knowledge of the fact in question.Footnote 18 A similar rule exists in the regulations governing the Executive Office for Immigration Review within the DOJ. The regulations loosen the mental state requirement slightly to prohibit either knowingly false statements or statements made with reckless disregard of their falsity.Footnote 19 The lawyer’s concerns would be twofold: First, is there a requirement to take remedial measures with respect to the application filed with the immigration court? Second, may the lawyer file an appeal of the immigration judge’s decision and argue that it was erroneous because the man had been persecuted, or had a well-founded fear of future persecution, on the basis of his sexual orientation?
Answering both of these questions requires engaging with the knowledge element of the rule. The applicant’s story has changed, and in a way that suggests he may have been lying on his initial application. However, the language barrier makes it difficult to know whether the reason for the variation is (i) an actual inconsistency in the testimony or (ii) a glitch in the translation. It is possible that the applicant is a gay man who is also married and has children (not an unknown possibility in a conservative society), but in the second interview he stated that he is not gay. The balance of probabilities certainly tips in the direction of a reasonable belief that the testimony on the initial asylum application was false, but this is not yet knowledge of falsity. In the criminal defense context, where the constitutional rights of the defendant significantly constrain the professional responsibilities of defense counsel,Footnote 20 some courts have interpreted the knowledge standard very strictly. The Wisconsin Supreme Court, for example, has stated that a lawyer’s knowledge, for the purpose of Rule 3.3
must be based on the client’s expressed admission of intent to testify untruthfully. While we recognize that the defendant’s admission need not be phrased in “magic words,” it must be unambiguous and directly made to the attorney.Footnote 21
The applicant in this case did not come right out and say that he had lied on the application and would continue to lie on the appeal. Because this is not representation of a criminal defendant, it may not be appropriate to apply a heightened knowledge standard. Still, knowledge means actual, subjective knowledge, and in my judgment the attorney does not have it.
Unlike the case of the startup company (Section 4.1.1), the duty not to present false evidence, and the duty to take reasonable remedial measures upon learning that evidence previously presented was false, are imposed by rules of professional conduct applicable to lawyers or “practitioners” appearing before an administrative tribunal. Because immigration matters, by definition, are heard by a tribunal constituted within the DOJ, there will likely be a regulation in place regarding the introduction of false evidence. However, the problem here is not so much regulation, or its absence, but with the substantial training and experience that may be required to exercise judgment in a case like this. The knowledge requirement is not a straightforward matter that can be read off the text of the applicable regulations. The regulation does not expressly reference the rules of professional conduct for lawyers, but a fair inference would be that the term should be given an equivalent meaning. A lawyer researching the application of the knowledge standard would then have to contend with whether the substantial body of case law applying Rule 3.3 in the context of ineffective assistance of counsel claims arising out of the representation of defendants in criminal cases should be applied to civil or administrative proceedings. Finally, one must exercise judgment to determine whether the standard was satisfied in this case.
4.1.3 Custody Blackmail
E-Z Divorce markets itself as an online platform assisting consumers with their divorce and other family law matters.Footnote 22 It provides a range of services, from document preparation only (comparable to LegalZoom) through an array of interactive help provided by a chatbot or a nonlawyer human customer service specialist (called a “divorce coach”). Customers who select one of the more expensive pricing options can have their forms reviewed, filed, and served by a divorce coach and can ask questions of the divorce coach in the process of preparing their forms with the assistance of the company’s software. E-Z Divorce has been approved by state regulators to provide legal services to consumers.
A father of two young children is considering filing for divorce. He recently got a new job and is concerned that a court order to make substantial maintenance (alimony) payments to his soon-to-be ex-wife would interfere with his hedonistic lifestyle. He is an indifferent father, content to leave most of the responsibilities for caring for his children to their mother. The father signed up for one of the fully featured plans offered by E-Z Divorce and explained his situation to the divorce coach. The coach replied,
I have seen many people in your situation. Here’s something to consider: You can file a petition that seeks joint custody of your children. I know that’s the last thing you actually want, but your wife may not know that. She may be willing to give up a big chunk of money in exchange for your “agreement” to permit her to have sole custody of the children.
The father thought this was a brilliant idea and instructed the divorce coach to proceed by preparing a divorce petition seeking joint custody of the couple’s children.
Two questions: (1) What do you think of the advice offered by the divorce coach? (2) Would it make a difference to your thinking about this problem if the father had come up with the plan himself and merely directed the divorce coach to fill out the paperwork to seek joint custody?
Although this problem is commonly referred to as “custody blackmail,” it does not fall within the prohibition, contained in the rules of professional conduct of some states, on threatening to file criminal charges against an opposing party to gain an advantage in a civil dispute.Footnote 23 Nor does it constitute the crime of blackmail, at least under the federal statute.Footnote 24 If the divorce coach had been a lawyer, he would have been subject to the State X Rules of Professional Conduct, which state that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”Footnote 25 In this case, of course, there is a substantial purpose for the tactic other than embarrassing, delaying, or burdening the wife: It is to decrease the maintenance obligation the husband will eventually incur. Might the tactic constitute “conduct prejudicial to the administration of justice?”Footnote 26 Opinions from the American Bar Association (ABA) and other regulators have generally said no, as long as the threat is related to the subject matter of the proceeding – in this case, the divorce.Footnote 27 The tactic does not appear to be the type of conduct that subjects lawyers to discipline for “conduct that is prejudicial to the administration of justice,”Footnote 28 perhaps owing to the difficulty of proving that the client did not in fact desire custody of the children, as opposed to merely using the custody demand as a bargaining chip.
If there is something wrong with this tactic, it must be wrong with reference to criteria other than the rules of professional conduct, combined with the background criminal law of extortion and blackmail – a portion of the law governing lawyers. Rather than offending against the law of lawyering, however, custody blackmail may offend against the norms respected by good lawyers. Deborah DeMott argues that “lawyers are distinctive as agents as a consequence of the robust professional culture and standards that define a lawyer’s professional identity.”Footnote 29 These standards “create duties that are not necessarily enforceable by the lawyer’s client.”Footnote 30 She has in mind duties under positive law that are enforceable by courts or judicial branch agencies.
But I would go back before the part about duties to emphasize her appeal to the robust professional culture and professional identity of lawyers. Professional culture and identity can serve as a resource for thinking in normative terms about the practice of law. In exchange for a valuable monopoly on the provision of legal services, lawyers traditionally are believed to practice law in the public interest. This may mean, among other things, saying no to clients who want to do nasty things to others.
I regard custody blackmail as almost certainly permitted by the law governing lawyers but a distasteful thing to do. Others may disagree, but the important thing for present purposes is to see that the debate is internal to what DeMott refers to as the robust professional culture of lawyers. If that culture is capable of supporting norms that can be used to evaluate the conduct of lawyers as permissible or nasty, apart from the lawfulness of the conduct, then it is potentially very useful in curbing the worst excesses of both lawyers and their clients. To the extent the maintenance of this culture depends on professional training and socialization, however, it risks being eroded through loosening of UPL restrictions.Footnote 31
A different response would be that the rules need to be modified to prohibit this conduct. Those rules could be made applicable to lawyers and nonlawyers, like “divorce coaches,” alike. For any given case it may be possible to imagine a rule change that would prohibit nasty conduct like custody blackmail. However, one of legal philosopher H. L. A. Hart’s fundamental insights is that rules must be embodied in language and language will always be open-textured.Footnote 32 Rules do not determine the scope of their own application and judgment will be required to interpret and apply them. (Consider the previous example, the Asylum Seeker, and the necessity of determining whether the representative has actual, subjective knowledge that the client testified falsely.) Something like DeMott’s reliance on the background professional culture of lawyers to inform their conduct is inevitable and cannot be short-circuited by tightening up specific rules here and there. Nonlawyers could certainly be educated and socialized in a professional culture that informs their interpretation of any applicable rules of conduct, but there is no way to avoid difficult interpretive problems altogether.
4.2 The Public Side: Professional Judgment
The opening paragraph of the Preamble to the ABA’s Model Rules of Professional Conduct states that “a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”Footnote 33 This language has launched a thousand platitudinous speeches by bar leaders to law students and newly admitted lawyers, but what does it really mean to say that a lawyer has “special responsibility for the quality of justice”? The key, I believe, is suggested by DeMott’s observation that “as members of a profession, lawyers are subject to duties not neatly captured by the consequences of agency.”Footnote 34 To avoid begging the question, so that the invocation of professionalism becomes simply another version of the usual defense of UPL restrictions, it is helpful to contrast the idea of professionalism here with the law of agency. The agency relationship is characterized by the principal’s right to control the agent.Footnote 35 As an officer of the court, however, a lawyer is also subject to direct supervision by judicial institutions and, as DeMott contends, “[t]his dimension of the lawyer’s position is beyond the explanatory framework of agency law.”Footnote 36 Alice Woolley similarly notes that the law of fiduciary duties fits uneasily with the foundation of the lawyer–client relationship in “the public law relationship between citizen and state.”Footnote 37
In this section, I contend that the problem raised by DeMott and Woolley is correctly identified. However, it is misleading to think that their point depends on the direct supervision of lawyers by judicial institutions, often shorthanded as lawyers having the status of officers of the court. Public duties are not a contingent feature of how lawyers are regulated but a conceptual truth about the function lawyers perform for clients in a society committed to the rule of law. That’s a mouthful, so more explanation is in order.
Lawyers tend to think about public law as that body of law having to do with relationships between citizens and the state. However, Woolley is not talking about public law but about the public aspect of the role of lawyers, which is related to the function of law and the legal profession in establishing rights and duties among members of a political community. Philip Pettit’s description of a social order maps onto what lawyers would think of as the domain of private law, yet it has a public, or social, or communal dimension:
In speaking of a social order, I have in mind the legally implemented arrangements that determine people’s rights and obligations in relation to one another and the limits that these may imply for the privileges and powers that people can individually command.Footnote 38
The second half of this passage should call to mind my treatment of the Startup Company case. People have limits on “the privileges and powers [they] can individually command.” The limits are specified by the law that constitutes the juridical relationships that can be created by contracts, different forms of business entities, and other devices of private ordering. As Woolley rightly points out, someone without specialized training cannot access the rights and privileges provided by law – for example, to create a business entity or a contractual relationship with an employee.Footnote 39 Thus, lawyers are required to provide this access, but notably it is to the framework of the social order and is therefore not strictly private. The public side of lawyers’ duties has to do with access to, and the proper functioning of, the framework of social order established by the positive law of a political community, its lawmaking and law-applying institutions, and those occupational groups (lawyers, judges, and possibly nonlawyer service providers) that keep the system running.
On the private side, the fundamental duty of any agent – which DeMott calls the “fiduciary benchmark” – is that “the agent must interpret the principal’s instructions reasonably in light of the principal’s wishes as the agent understands them when the agent must decide what action to take.”Footnote 40 This is a duty owed by lawyers to clients, and serves to ensure that the client is calling the shots in the relationship and the lawyer is not acting paternalistically with respect to the client. As Woolley puts it, “the central function of the lawyer in advising a client is to discern the client’s wishes, not to substitute her own.”Footnote 41 That is fine as far as it goes, but in the Startup Company example, the client’s wishes are not the last word. The client wishes to establish a juridical relationship between the corporation and the engineers. It is “juridical” in that various rights, duties, and privileges are supposed to follow from it, applicable to both the parties to the transaction and third parties.Footnote 42 The lawyer’s work in preparing the independent contract agreements brings into existence a set of relationships constituted by law. Thus, in addition to ensuring that she is clear on the client’s instructions, a lawyer in this case must also ensure that she has got the law right insofar as it bears on how the relationship between the company and the engineers can be structured.
Doing this requires judgment. Not since the sustained attack of the American legal realists on “mechanical jurisprudence” has any sensible lawyer believed that it is possible to apply the law deductively in adjudication or when advising clients, that the form of legal norms always has priority over their substance, that law can be applied without consideration of the circumstance of its enactment.Footnote 43 Legal rules do not determine the scope of their application, there is quite a bit of creativity involved in figuring out which are the relevant facts, and formal norms are frequently intelligible only against a background of understanding of what their point or purpose must be. In the Startup Company example, the status of the engineers as employees or independent contractors depends on the application of various multifactor tests that have been used in agency, tort, labor and employment, tax, and other legal contexts.Footnote 44 This is not reasoning from first principles about whether it would be in the public interest or the interests of justice to recognize the legal status of independent contractors on these facts. Rather, those judgment calls have been made already, by legislatures, administrative agencies, and judges, and embodied in the form of positive law that is interpreted and applied by lawyers.
My point here is not that nonlawyers or a sophisticated AI system cannot exercise this type of judgment. Rather, the point simply is that the exercise of judgment is necessary to determine whether the engineers should be treated as independent contractors or employees under the applicable law. A similar observation may be made in connection with the judgment required by the providers of legal services in the other hypotheticals. The Asylum Seeker case requires both an interpretation of the applicable law, particularly an understanding of how the knowledge element has been applied in analogous cases, and also a difficult assessment of whether the client lied on his application. Granted, immigration and asylum are public law subjects, so it may be easier to see the source of public duties here. But the same sorts of duties of candor to tribunals and third parties would be required if this were a dispute or transaction among private citizens. Any system that allocates rights, duties, and liberties that can be asserted among citizens dealing with each other in potentially contentious circumstances has to do something to ensure that the juridical relationships thereby established have some connection to what is, in fact, the case in the world. Judgment in this case does not pertain to the law establishing the client’s rights, duties, and privileges, as in the Startup Company case. Rather, it pertains to the constraints that apply to participants in the process of establishing juridical relationships. These constraints are necessary to the orderly functioning of the entire system, however, and in that sense can be said to be part of the public side of the duties of lawyers or nonlawyer service providers.
The Asylum Seeker case may seem too easy because, no matter how it is regulated at the state level, employees of our hypothetical Affordable Immigration Service are appearing before administrative tribunals, which impose, by regulation, duties comparable to those that would apply to fully licensed lawyers. I stuck close to the facts of the real case when writing up this hypothetical, but it would be possible to take the regulations out of the problem, at least directly, by imagining a client coming to AIS for advice about what to do in order to obtain a work visa, permanent residence, or some other legal right. Now imagine that the AIS representative knows or suspects the client is lying or, even worse, counsels the client to lie. In that case the Justice Department regulations would not apply directly but the untruthfulness of the customer would still be a problem for regulators.
The Custody Blackmail case calls for judgment of a different kind altogether. On the assumption that there is no legal prohibition on making an insincere demand for shared custody as a way of exerting leverage in negotiations over the property settlement in the divorce, the issue is whether we want providers of legal services doing this sort of thing. DeMott refers to professional culture and a lawyer’s professional identity.Footnote 45 Others may see the matter simply as the application of moral considerations to the representation.Footnote 46 In any event, the standards bearing on the exercise of judgment are unwritten, not expressed “officially” in positive law, and applicable by virtue of commitment to the ideals and values of an occupational group. Judgment in this case pertains to what a decent, ethical [lawyer, nonlegal service provider] ought to do. The bracketed terms suggest we can substitute any social or institutional role, but then we have to work out what actions are permissible or impermissible based on the ends and values for which the role is constituted.Footnote 47 In any event, if one believes that the representation should involve counseling the father about the appropriateness (as opposed to lawfulness) of the custody tactic, some account is required to explain how the provider of legal services will acquire the capacity to provide that type of counseling.
As a theoretical matter this is a task for scholars, but as a practical matter it may be understood as an important part of legal education. The Carnegie Report emphasized the notion of professional identity as pertaining to “the skills and inclinations, along with the ethical standards, social roles, and responsibilities, that mark the professional,” and “the purposes and attitudes that are guided by the values for which the professional community is responsible.”Footnote 48 Social roles, responsibilities, and values can be understood in terms of the broader society’s expectations for how its system for allocating rights and duties should be administered. Some assertions of rights may be unfair or abusive – a perversion of the process. Determining when this is the case requires … you guessed it, judgment. And in this instance that judgment will be developed over time, through experience, as part of membership in a professional community.
4.3 The Regulatory Question
This concluding section is quite tentative, not only because the precise form of regulation varies according to the scope of practice allowed to nonlawyer service providers, but also because many of these regulatory responses have proven imperfect when applied to the existing legal profession. Any approach to regulation that is intended to mitigate the access-to-justice problem must be capable of addressing the public side of the duties owed by lawyers or nonlawyer service providers. One pressing issue for the regulation of nonlegal service providers is the relationship between the judgment that is essential to the provision of legal services and the value of independence.Footnote 49 Lawyers see themselves as having a fiduciary obligation of loyalty to represent and advise clients solely with reference to the best interests of clients, without regard to competing interests such as financial returns for equity owners of law firms. At the risk of falling back into the traditional defense of UPL restrictions, there may be something worth holding onto in the value of professional independence as it relates to the judgment that must be exercised in situations like those considered in Section 4.1. I worry a bit, however, that the judgment that is essential to the provision of legal services is best (if not only) acquired through a long process of professional education and socialization. It may be possible to replicate this process in the formation of nonlawyer service professionals, but so far that does not appear to be part of the thinking about these regulatory reforms.
The Washington State Limited License Legal Technician (LLLT) experiment sought to create a class of legal paraprofessionals, comparable to nurse practitioners or physicians’ assistance in medicine, that could deliver legal services at a lower price than the fees charged by lawyers. In addition to an extensive education and licensing process, LLLTs were subject to their own code of professional responsibility, which largely tracked the rules applicable to lawyers.Footnote 50 A recent Colorado program goes down the same road: Paraprofessionals who will be licensed to provide legal services in matrimonial matters must have 1,500 hours of substantive legal experience, including 500 hours in Colorado family law; pass a licensing exam and an ethics exam; and satisfy continuing professional education requirements.Footnote 51 Those requirements appear to be onerous enough to deter many new entrants from seeking to become licensed paraprofessionals. As Keith Swisher argues, to my mind persuasively, saddling nonlegal service providers with the same educational, licensing, and regulatory regime as lawyers is inconsistent with the goal of increasing access to legal services and not necessary to further regulatory goals of accuracy and accountability.Footnote 52
The Utah reform scheme tries to hold onto some form of traditional regulation by the judiciary of the provision of legal services, while better tailoring the substance of the regulations to the relevant values and objectives. The Utah Supreme Court established an Innovation Office, subject to the direction and control of the court, but charged with fashioning regulations “using an objectives-based and risk-based approach.”Footnote 53 Importantly, the regulatory objectives encompass both consumer protection and access to justice.Footnote 54 These regulatory goals differ from the usual recitation of interests in UPL decisions by courts, which tend to emphasize only the consumer-protection side of the interest balancing.Footnote 55 The court also emphasized that regulation should be empirically informed, based on an assessment of the risk to the consumer, and aware of the alternatives available in the market for obtaining similar services.Footnote 56
A comprehensive approach to regulating nonlawyer providers of legal services could attempt to address many of the issues considered in the hypos in Section 4.1. For example, legislation could provide that the attorney–client privilege applies to confidential communications between customers and nonlawyer service providers, in the same way and subject to the same limitations (the crime-fraud exception, etc.) as communications between lawyers and clients. Nonlawyer providers could be subject to enforceable duties of candor to tribunals, to the same extent as lawyers, with respect to their own statements and evidence they submit. The hard part of this approach is not imposing enforceable regulations but training nonlawyer service providers on their application. Something like the knowledge standard in the Asylum Seeker example calls upon fairly sophisticated legal reasoning to determine the appropriateness and limits of analogies with other legal tests to determine an actor’s mental state with respect to facts. A first-year criminal law class would be very helpful to someone trying to puzzle out what to do in that case. The Custody Blackmail hypo is different, because in that case the judgment required is not exercised with respect to other areas of positive law but with respect to the values that inform the legal system and the legal profession. Law schools may not do a great job at inspiring students to engage in critical reflection about the values informing the lawyer’s role – in fact, the normative curriculum is largely tacitFootnote 57 – but at least in theory there is an available site for the consideration of these questions. The values inherent in the provision of legal services are likely to go largely unaddressed if the services are provided by software or humans with limited legal training.
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