Lawyer deregulation appears to be the current zeitgeist in the legal reform movement. Great Britain is experimenting with lawyer deregulation, which would make some basic legal services available at supermarkets. The Brookings Institution–somewhat surprisingly, to me–recently published a study recommending the deregulation of the legal industry in the United States as well. (Hat tip Futurelawyer.)
Deregulation appears to mean retiring the traditional gatekeepers to the practice of law. By "gatekeepers," reformers appear to be targeting certain licensing requirements, like lawyers must attend ABA-accredited law schools. It also means allowing non-lawyer to have ownership in and managerial control over law firms, which is currently forbidden by the rules of ethics. The point of deregulation appears to be twofold: First, it will permit law firms to grow and adapt in a changing global market; and second, increased competition will incentivize law firms to be more responsive to consumer pricing.
Those who stand athwart the ramparts of the current licensing system yelling "Stop!" are accused of supporting a dysfunctional status quo. Less charitably, they are accused of trying to protect their own jobs and their high salaries, to the detriment of legal consumers.
In a previous post, I talked about the entrance of Google into the legal marketplace, and I opined that there will still be a place for traditional legal practice. I am generally onboard with innovation in the legal profession, and I understand the arguments of the reformers. Deregulation might well mean savings for consumers who just need basic legal services. It might mean that some activities that are sometimes reserved for lawyers (say, real estate closings) can be performed more cheaply by non-lawyer professionals (like title agents, as in Florida and Virginia). It might also mean that the billable hour gets replaced by something leaner and meaner as the result of greater competition in the legal marketplace.
But I worry about what else a deregulated legal profession might also mean. If just anyone can offer legal services, who will ensure that those legal providers are minimally competent? Can someone provide legal services simply because they have a sharp mind and good debate skills, but have no formal legal training? How do you protect unsophisticated legal consumers from predatory, fly-by-night outfits that prey on desperation/financial hardship/emotional vulnerability?
Along these lines, we lawyers have an overriding ethical obligation to protect the interests of our clients. (Indeed, if you want to talk about incentives, there is a huge financial incentive for lawyers to protect and deal fairly with their clients because our ability to earn a living is inextricably tied to our ethical obligation to do so.) Will non-lawyers have the same obligations?
Likewise, will permitting non-lawyers to manage law firms undermine the ethical responsibility of those firms to protect their clients? Will non-lawyers be held to those same standards? And what will prevent non-lawyer managed legal providers from maximizing profits at the expense of providing solid legal services? If cheaper and more efficient modes of delivering legal services become the norm, who can be blamed if legal providers need to skimp on competency to ensure lower costs?
If the answers to these questions is to say that some ethical obligations will remain in place for all legal service providers, then how is that different from the system that we have now? Where can the line be drawn? And is the winner-takes-all arena of free market capitalism the place where society wants the legal security of its citizens to play out?
There is a dark side to the efficiencies that deregulation and competition sometimes beget. Law is hard, and it has far reaching consequences for those folks who are on the wrong side of a poorly-drawn contract or a mishandled criminal matter. Although innovation in the legal profession must be welcomed and embraced, it cannot be hitched to a fashionable concept such as "deregulation" without examining what those regulations are intended to protect. More important, innovation–no matter how well-meaning–cannot come at the expense of our clients.