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An American Bar Association task force has recommended that state regulators license people other than lawyers to perform certain legal services. In a recently released working paper, the ABA Task Force on the Future of Legal Education stated, “State regulators of lawyers and law practice should undertake or commit to … authoriz[ing] persons other than lawyers with J.D.’s to provide limited legal services and create certifications for such persons.”
 
The state of Washington has already begun to implement a program to license non-lawyers and California is considering doing so as well. A recommendation from the ABA that such programs be created could go a long way toward expanding this additional avenue of access to the legal system nationwide.
 
Of course, the release of a working paper is several steps removed from a nationwide change in policy. Even if these recommendations remain in the task force’s final report (due on November 20), there is no guarantee that the ABA House of Delegates will adopt it as ABA policy. Numerous consumer-friendly proposals about lawyer regulation have received strong support from ABA committees and task forces, only to be shot down by the House of Delegates. And even if the ABA endorses this proposal, each state will be free to accept or reject it in setting its own policy with regard to non-lawyer licensure. Local bars are sure to put up a strong fight over what they may see as non-lawyers infringing on the turf of lawyers.
 
Nevertheless, this is a significant development in the expansion of legal services to all Americans. If non-lawyers provide simpler legal services, the cost of those services will drop, potentially to a level where they would be affordable to the vast majority of people in this country who cannot currently afford legal help. If nothing else, the coalescing opinions on this point among a group of distinguished lawyers and judges shows how far the legal establishment has come. It appears that at least one segment of the legal establishment recognizes that it is irrational to continue the decades-old monolithic way of educating lawyers that produces newly-minted lawyers who are incapable of providing the legal services that most people need.
 
The recommendation that limited practice licenses be created is also only one of several dozen recommendations that the task force has put forward. On nearly all of the issues it addresses, the task force has made thoughtful recommendations that would, if followed, give the legal education system the room it needs to experiment with new models that can help both potential legal service providers and their clients.
 

 

Published in Blog
Tuesday, 25 October 2011 10:14

NYT Op-Ed: Lower Barriers to Legal System

http://responsivelaw.org/index.php/news/blog/item/86-new-book-first-thing-we-do-let-s-deregulate-all-the-lawyersYesterday's New York Times features an op-ed by Clifford Winston, an economist and senior fellow at the Brookings Institution, and co-author of First Thing We Do, Let's Deregulate All the Lawyers. Winston focuses on reducing barriers to entry for those who wish to provide legal services, including the elimination of legal licensing and allowing non-lawyers to invest in law firms. These changes, Winston argues, would promote innovation and lower the price of legal services. We commented on these proposals in an earlier post.

Winston is absolutely right: Licensing laws must be adjusted to allow greater competition in the provision of legal services across the spectrum of legal needs and ability to pay. Responsive Law has commented at length to the American Bar Association about the need to promote innovation by allowing outside investment in law firms. Consumers are not well-served by the current one-size-fits-all system that assumes that every legal need must be met by someone who has attended law school, passed the bar exam, and practices law in a solo practice or partnership.

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Thursday, 14 April 2011 15:05

We Need More Lawyers, Not Fewer

I wrote a few weeks ago about how the high cost of law school is driving prospective lawyers away from the profession. Another recent opinion piece, by the dean of Massachusetts School of Law, raises another reason why we're facing a shortage of lawyers: the ABA's reluctance to accredit new law schools. This reluctance is particularly strong (and often mandated by the ABA's standards for law school accreditation) when schools deviate from tradition by allowing "too much" credit for experiential learning, or by relying too heavily on adjunct faculty who can share ongoing real world experience with their students, or by taking of advantage of virtual facilities that don't meet outdated requirements about the types of volumes required to be physically present in the library or the amount of space required for studying there.

Some people have asked why Responsive Law, which promotes alternatives to the use of lawyers, isn't rejoicing about a decrease in the number of lawyers. The truth is, even in an ideal system with a range of services available to meet the continuum of legal needs, lawyers will play an important role in providing legal services. The most complex legal issues are almost always best resolved by using a lawyer. And for simpler matters, even when alternatives are available, consumers may choose to use a lawyer because the lawyer provides a better set of skills for their particular problem. However, when the supply of lawyers is capped by the limited number of accredited law schools, the price of using a lawyer increases. And when the cost of a legal education increases, the rate that lawyers must charge increases. Allowing more people to become lawyers–and allowing non-lawyers to provide legal assistance–will give consumers of legal services the greatest range of options at the lowest possible price.

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This Wall Street Journal article and this New York Times article illustrate a recent trend of college graduates deciding not to go to law school. These articles point out a troubling truth about the legal profession: The expense of law school makes it nearly impossible for a law school graduate to provide services at a price the average person can provide. When law students are graduating with over $200,000 in debt, the only way to repay that debt is to work for large law firms that serve large corporations and rich individuals.
 
Reducing the cost of the legal education required to serve customers would help lower the cost of legal services. This could take place in a couple of ways. The obvious one is that lowering the cost of a J.D. would allow recent law graduates to provide affordable services while still paying off their educational debt. A more innovative approach would allow limited licensure of people with fewer years of formal legal education. For example, a state could grant a license to perform simpler legal tasks based on testing and one or two years of law school. Or lawyers could be licensed to practice only in a specific field after taking the first-year legal curriculum plus a semester or two of course work in that area. Consumers are rarely served well by one-size-fits-all services; the legal academy should stop creating one-size-fits-all graduates.
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Mariah Cesena interned for Responsive Law in Spring 2013. This is her reflection on how her internship changed her thinking about law as a career choice. 
 
Every child has a dream of what they want to be when they grow up. Moreover, with that dream the answers are endless: doctor, firefighter, veterinarian, professional athlete and, of course, lawyer. I too was no exception in the plethora of careers I aspired to throughout my childhood.  Even as I grew out of my phase of fantasy career choices, one part of the job description remained the same: I knew I wanted to help as many people as I could. Subsequently, in my journey through middle school and high school I finally came to the realization that I wanted to go on to college and major in political science. When I reached my dream school, Howard University, I entered as a political science major; however, I began to realize the major of political science was not as versatile as I had hoped it to be. I then chose to change my major to legal communications, which I am glad I decided to do.
 
Before I began to intern at Responsive Law, I was already torn between the decision to either continue on to law school or graduate school. But the day that I read the book, Don’t Go To Law School (Unless): A Law Professor’s Inside Guide to Maximizing Opportunity and Minimizing Risk, the option of law school pretty much went out the door. Detailed from a first-hand experience of law school, author Paul Campos discusses the truth about law school that many people do not know.  The chapter that stuck out to me was “The Myth of the Versatile Law Degree”.  Campos goes on to discuss the ploy law schools use when promoting a J.D.  Specifically, he states, “It’s quite true you can do many things if you have a law degree. The problem is you can also do all those things if you don’t have a law degree – except practice law.” After reading that, I began a quest of deep soul searching to really ask my self, “Why do I want to go to law school?”  Reminiscing on past experiences of volunteering in my community made me recognize that I have an interest in assisting others suffering from social problems utilizing a hands-on counseling approach. Consequently, I realized law school wouldn’t provide me with the necessary tools needed to accomplish this goal, but rather continuing my education in social work would be the most beneficial in fulfilling this ambition. Moreover, my research for Responsive Law brought me to some startling statistics in regard to the legal job market. For example, according to an article published in the New York Times, “Since 2008, some 15,000 attorney and legal-staff jobs at large firms have vanished.” The article went on to address the subject mentioned above of jobs and requiring law degrees, stating, “A law grad, for instance, counts as ‘employed after nine months’ even if he or she has a job that doesn’t require a law degree.” Campos goes on to demonstrate that a J.D. might actually hinder your chances of getting a non-attorney job.
 
If hearing statistics like this does not scare you already, or even cause you to question other options of law school, I offer you the same question I asked my self: Why do you want to go to law school?  When answering this question consider whether you want to go to law school just to stay in school longer, or because you think it will improve your job prospects. I can honestly say my reasoning to go to law school before was not the smartest choice because I too fit into the mold of thinking a J.D. would get me a job or at least a better job. Also, I was under the impression that what I wanted to do required a law degree. Since my time at Responsive Law, my eyes have been opened to what I really have a passion for, and that passion does not require a J.D. Fortunately, I have set my sights on going to graduate school rather than law school and obtaining my Master’s degree in Social Work. With this path, I can still fulfill my dream of helping people, but deciding to go this route will save me a tremendous amount of money and, most importantly, my time. In closing, I have come to understand that the decision of going to law school is one that should not be taken lightly. Furthermore, I know that not going to law school won’t prevent me in the future, but I know it is not the right choice for me now.
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Several recent articles, including this one in the New York Times have described the bursting of the law school bubble, with record low numbers of law school applicants in response to increasing tuition and declining job prospects for graduates. However, the United States is faced with a growing legal services gap, where only the richest Americans can afford the exorbitant hourly rates needed to hire a lawyer to help them with legal matters. With the demand for legal services increasing, why is there a decrease in the supply of people who can provide legal assistance?

The answer lies in the overly restrictive licensing system that governs who may provide legal assistance. Law schools are propped up by the requirement that anyone practicing law (with very few exceptions) be a graduate of a three-year law school program. "Practicing law" is defined so broadly in most states that it applies to anyone offering any kind of advice or service that has an impact on legal rights. Therefore, anyone who wants to make a career out of helping people with legal matters, no matter how simple, must pay for and attend three years of law school, or face prosecution for the unauthorized practice of law.

Want to help tenants with housing issues? Working for a tenants' rights organization and taking some courses in housing law would be a good way of learning the law and procedure regarding these issues, but without a J.D. you won't be allowed to give advice to a single tenant. Want to help people draft forms to write a will or get an uncontested divorce? You may have done so for twenty years as a paralegal working for a $300-an-hour lawyer, but without three years of education at a cost of over $200,000, you won't be allowed to offer those services directly to customers at a far lower cost.

To fix this disconnect between supply and demand, we need to allow a wider range of service providers, with training appropriate to the tasks they are performing. This could take the form of intermediate-level licenses for limited types of services. For example, a licensed social worker could be allowed to perform divorce-related legal services, either by virtue of her existing license or with some additional testing or coursework. California and Arizona (soon to be joined by Washington) allow licensed document preparers to provide services directly to consumers.

In the field of health, we don't require everyone to get a medical degree to provide services. Nurse practitioners, pharmacists, and physicians' assistants have less burdensome educational requirements. Massage therapists don't have any formal degree requirements and usually have a simple testing and coursework requirement for their licenses. Fitness trainers aren't required to have any licensing to guide people through exercise and diet regimens. In the field of law, however, we require everyone providing services to have a law degree. That's like requiring your massage therapist or your spin class teacher to have a medical degree!

If we right-size legal training to the types of services we're training people to provide, then the deflated law school bubble will consist of schools that train lawyers to deal with the most complex legal matters. At the same time, states could experiment with other models of licensing and training for simpler legal services, so that people with a desire to work in the field of law could be trained at a lower cost. These service providers, who would not face crushing law school debt, would be able to provide services to consumers at an affordable rate, easing the access to justice burden.

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