The legal profession’s history is littered with examples of protectionism. Bar associations have tried to limit the work of out-of-state attorneys through restrictive multijurisdictional practice rules. They’ve tried to protect established attorneys through unnecessarily strict advertising rules. And they have limited competition from non-attorneys through expansive and vague unauthorized practice of law statutes.
These observations are neither new nor terribly surprising. The reality is that, in some circumstances, a bar association’s aspirations to work in the public interest are in conflict with the interests of the bar’s members.
Recently, I have been thinking about whether legal ethics professors face a conceptually similar conflict. In my class, I always cover the unauthorized practice of law and encourage students to create a coherent definition of law practice. Invariably, they can’t. I then make the case for opening up the legal profession to more non-lawyer practice, especially in light of numerous studies (such as Deborah Rhode’s seminal work) that show that non-lawyers can perform many routine legal tasks at least as well as lawyers and at a fraction of the cost.
Students sometimes balk at my views, and I guess that I can’t blame them. I’m making an argument that, if embraced widely, could reduce the value of their law degrees and could adversely affect law schools and their graduates more generally.
Despite these concerns, I don’t shy away from advocating for what I believe. (Indeed, I have adopted this view as a scholar and as a paid consultant.) After all, that’s one of the primary rationales for giving people tenure. We want professors to say what they think without fearing reprisals or retaliation.
At the same
time, I feel some obligation to my students and my school’s alumni to further
their professional aspirations, and I realize that my views are, at least to
some degree, inconsistent with those obligations.
What does this all mean? I’m not sure. For me, I will continue to argue for more non-lawyer practice, because I believe that it serves the public interest. I nevertheless feel a conflict in doing so, a conflict that (I think) some philosophers would call a “moral remainder.” That is, my choice is a morally acceptable one, but it comes with a moral cost as well: it may adversely affect people to whom I have some obligation. (The philosophers out there can correct me if I have used these terms inaccurately.)
Putting aside the question of terminology, has anyone else felt this tension, either in the UPL context or with regard to other legal ethics-related issues?