Towards the Law of Legal Services
65 Pages Posted: 7 Feb 2015 Last revised: 8 May 2017
Date Written: 2015
Imagine that someone asks you how legal services are regulated in the United States. You might answer that lawyers need a license in the jurisdictions where they intend to practice, typically after graduating from an ABA-accredited law school and passing the bar examination. You could explain that lawyers are governed by rules of professional conduct and subject to discipline, including disbarment, for failing to comply. You also might mention the growing patchwork of state and federal regulations that govern lawyer behavior. Each of these answers offers a slightly different perspective on the regulation of legal services, but they share one common feature: they are all about lawyers.
This Article contends that the current lawyer-based regulatory framework should be reimagined if we hope to spur more innovation and expand access to justice. Rather than focusing on the so-called “law of lawyering” – the body of rules and law regulating lawyers – this Article suggests that we need to develop a broader “law of legal services” that authorizes, but appropriately regulates, the delivery of more legal and law-related assistance by people who do not have a J.D. degree and do not work alongside lawyers. For example, the Washington Supreme Court recently adopted a framework for allowing specially educated and separately regulated professionals – Limited License Legal Technicians (LLLTs) – to deliver a narrow range of family law services without a traditional law license. Some observers predict that LLLTs will be able to offer assistance at a lower cost than lawyers and improve access to legal services. This type of regulatory reform, which falls outside the law of lawyering, illustrates the growing importance and potential utility of the law of legal services.
The idea of looking beyond the law of lawyering for ways to encourage innovation is conceptually different from many recent calls for regulatory reform, which tend to focus on expanding opportunities for lawyers and nonlawyers to work together through alternative business structures (ABSs). To be sure, ABSs are a potentially important development, but they are necessarily a creature of the law of lawyering. Consider, for example, the authorization of ABSs under the United Kingdom’s Legal Services Act (LSA). Passed in 2007, the LSA requires ABSs to have a lawyer manager, provides detailed regulations about a lawyer’s role in the ABS, and explains the role nonlawyers can play relative to lawyers. The LSA does not purport to regulate nonlawyers who want to deliver legal services completely apart from the legal profession. In other words, reforms focused on ABSs overlook regulatory innovations outside the law of lawyering – like the LLLT program – that hold the promise of an even greater impact on legal services.
For too long, regulatory reforms have focused primarily on the limited options available within the law of lawyering. By looking beyond that body of law, we can unlock the innovative potential of new providers who are capable of delivering legal services to those who need them. In this way, the law of legal services can safely expand the public’s options for addressing many legal needs, and it can do so in ways overlooked by conventional regulatory reform efforts.
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