The Emergence of Law Consultants
33 Pages Posted: 4 May 2007
In this article, I describe the emergence of "law consultants" - lawyers who market their legal expertise decoupled from attorney-client relationships. In the first part, I situate these new types of professionals in the context of the rise of the compliance consulting industry. Many of the current legal regimes governing corporations - including regulation under Sarbanes-Oxley, OSHA, EPA, HIPA, and antidiscrimination case law - emphasize the internationalization of compliance programs within corporations. Led by large accounting firms, a substantial compliance consulting industry has arisen to provide compliance services to corporations. Among the new compliance specialists are lawyers who are opting out of traditional attorney-client representation and repackaging their services as consulting services. As I suggest, despite similarities between these compliance services and law practice, there are several reasons that compliance consulting is not likely to be sanctioned as unauthorized practice of law. Most significantly, it is difficult to argue that prohibitions against unauthorized practice, which are aimed at protecting members of the public, should be extended to services purchased by sophisticated corporations. In the second part, I consider the various incentives for corporations and lawyers to characterize their relationship as a consulting rather than an attorney-client relationship. On one side of the ledger, there may be diminishing advantages to corporations to entering formal attorney-client relationships, including the lessening value of the attorney-client privilege. On the other side, there are benefits to the consulting label, which permits these lawyers to avoid professional regulation that governs their conduct towards third parties.
Keywords: lawyer, legal professions, consultant,compliance, professional regulation, unauthorized practice, attorney-client privlege
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