{"id":5301,"date":"2006-05-08T18:28:54","date_gmt":"2006-05-08T22:28:54","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2006\/05\/08\/upl-and-the-ohio-lawyers-guil"},"modified":"2011-08-05T14:53:56","modified_gmt":"2011-08-05T18:53:56","slug":"upl-and-the-ohio-lawyers-guild","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2006\/05\/08\/upl-and-the-ohio-lawyers-guild\/","title":{"rendered":"upl and the Ohio lawyers’ guild"},"content":{"rendered":"

\"\" Thanks to <\/span>Blawg Review<\/em> #56<\/span><\/span><\/a>, which is hosted by Point of Law<\/em> this week,<\/span> I learned today <\/span>that another bunch of Ohio lawyers<\/span> [prior <\/span>post]<\/span><\/a> is “protecting”<\/span><\/span> consumers <\/span><\/span>by protecting themselves from competition. <\/span>Walter Olson<\/span><\/a> writes<\/span><\/span> <\/span><\/span>for BR#<\/em>56:<\/p>\n

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“If you set out to devise a case that would bring unauthorized practice of law statutes into public disrepute, you could hardly<\/span> have done better than the Cleveland bar, which is seeking to<\/span> punish a nonlawyer for representing his own autistic son in IDEA<\/span> (special-education) proceedings–even though the father and son<\/span> prevailed<\/em> in the proceedings, undercutting any consumer-protection<\/span><\/span> line of argument. Prof. Ribstein <\/span>isn’t impressed <\/span><\/a>with the bar’s action<\/span> (“I am beginning to wonder whether it’s worth preserving any piece of<\/span> lawyers’ monopoly on legal representation”), and neither is the Berk<\/span>eley, Calif. blogger who posts at<\/span> Bookworm Room<\/span><\/a>. [But see:<\/span> Jonathan Wilson<\/span><\/a>, “Is Lawyer Licensing Necessary? A Response to<\/span> Professor Ribstein, ” May 8, 2006]<\/span><\/p>\n<\/blockquote>\n<\/blockquote>\n

<\/span>\"\"<\/span> A similar case that is worth a look came out of Delaware, in 2000. In the<\/span> Matter of Arons<\/span><\/a><\/em> <\/span>(Delware Supreme Court, 456 A.2d 867, 2000), cert. den<\/em>.<\/span><\/span> 121 Sup. Ct. 2215 (2001), the Delaware Supreme Court ruled that, by<\/span> representing families of children with disabilities in due process hearings,<\/span> Marilyn Arons and her partner, Ruth Watson, were engaged in the unauthor<\/span>ized practice of law (UPL). (related <\/span>article<\/span><\/a>) The local <\/span><\/span>School Board had<\/span> accused Arons of UPL — in a situation where the <\/span>Board was being asked<\/span> to pay the expenses of victorious parents, who <\/span>had fought the Board over<\/span> their children’s educational rights, with the help of <\/span>Arons and Watson (and<\/span> their <\/span>Parent Information Center<\/span><\/a>). <\/span><\/p>\n

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Public Citizen<\/span><\/a> represented Arons in her unsuccessful <\/span>petition for certiorari, <\/span>which can be <\/span>found <\/span>here<\/span><\/a>. One very important point <\/span>was emphasized in Public<\/span> Citizen’s <\/span>cert<\/em> petition — the experience and competence of the nonlawyers: <\/span><\/p>\n

“[T]here is no question that non-lawyers like Ms. Arons and Ms.<\/span>Watson are competent to advocate effectively on behalf of families<\/span> with disabled children. To be effective, an advocate at an IDEA hearing<\/span> must be familiar with the clinical aspects of the child’s condition (skills<\/span> that lawyers ordinarily lack), as well as the rules governing the conduct<\/span> of the hearing. [cite omitted] Non-lawyers with “special knowledge<\/span> and training with respect to the problems of children with disabilities” are<\/span> fully capable of presenting the parents’ case to the panel. Indeed, Ms.<\/span>Arons and Ms. Watson obtained significant relief in each of the five cases<\/span> at issue here, even though they were matched against members of the<\/span> Delaware Bar.”<\/span><\/p><\/blockquote>\n

\"tiny The same school district is involved in a case argued before the <\/span>US Supreme Court last month (April 19, 2006), over whether Arons<\/span> should be awarded fees for nonlawyer advice and advocacy in a<\/span> disabilities case. See <\/span>Murphy v. Arlington Central<\/span><\/em><\/a> School District<\/span><\/em><\/a>,<\/span> 2nd Cir. 2005, and find a summary at <\/em><\/span><\/span>WrightsLaw<\/span><\/em><\/a>.com.<\/span><\/p>\n

\"scales<\/span> To learn more on the unauthorized practice of law (or its obverse: defining the <\/span>practice of law), I’d suggest taking a look at our <\/span>ethicalEsq<\/em> UPL Page<\/span><\/span><\/span><\/a>. The article <\/span>“<\/span>Lawyer vs. NonLawyer<\/span><\/a>,” by <\/span>HALT’s Executive Director, Jim Turner, has a useful <\/span><\/span>discussion on crafting a consumer-friendly defintion of the practice of law. (from <\/span>Legal Times<\/em>, Feb. 3, 2003, 2 pp, pdf.). And, <\/span>HALT’s UPL page<\/span><\/a> sets forth the prin<\/span><\/span>ciples endorsed by the consumer legal reform group for treating the unauthorized <\/span>practice of law<\/span>:<\/span><\/span><\/p>\n

One of the most effective ways to increase consumer choice in legal <\/em><\/span>services would be to abolish unauthorized practice statutes. As the<\/em><\/span> simple and routine legal needs of millions of Americans continue to go<\/em><\/span>unmet each year, it is critical that consumers be able to utilize inde<\/em><\/span>pendent paralegals and other nonlawyer resources. <\/em><\/span><\/p><\/blockquote>\n

At the core of HALT’s efforts to reform restrictions on unauthorized practice<\/span> are three principles: <\/span><\/p>\n

    \n
  1. The unauthorized practice of law<\/em> means saying you are a lawyer when<\/span> you are not; <\/span><\/li>\n
  2. Innovative partnering between lawyers and nonlawyers is permissible with<\/span> client consent after full disclosure of work and fee arrangements; and<\/span><\/li>\n
  3. A client or customer complaint should be required before unauthorized<\/span> practice of law proceedings can be initiated.<\/span><\/li>\n<\/ol>\n

    \n

    \"scales<\/span><\/p>\n

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    <\/span><\/span><\/p>\n

    On the broad topic of professional licensing, there are many viewpoints. For example, see: <\/span>Restrict Lawyers’ Licenses<\/span><\/a> — <\/strong>Authored by attorney Ralph Warner, this Nolo.com Soap Box Column states that “A license to practice law is no guarantee of legal <\/span>knowledge, skill or experience. Incompetent lawyers regularly mislead and defraud <\/span>clients who rely on the promise of expertise that the lawyer label brings.” Warner <\/span>concludes:<\/span><\/p>\n

    \n

    “When it comes to lawyers who sell personal legal services, a lawyer’s <\/span>license should be limited to specific subject areas — for example, family <\/span>law, criminal law, tax or probate. A separate exam should be given for <\/span>each specialty. That way, an exam could test the skills and knowledge <\/span>needed by a lawyer who wants to represent clients in a particular legal subject area.” <\/span><\/p>\n<\/blockquote>\n

    Protecting lawyers, not clients<\/em><\/a><\/span> — In this article by George C. Leef (for the Cato<\/span> Institute), the author argues that “The best means of delivering affordable legal <\/span>services to the public with minimal risk of harm is through a competitive market<\/span>place, backed up with remedies for fraud and incompetence. Professionals want <\/span>to do competent work for their clients. Fear of failure and financial loss is a stronger<\/span> deterrent to incompetent work than any licensing scheme” and concludes that <\/span>“<\/em>Competition works as well in legal services as in other markets. But we’ll have to<\/span><\/span> get rid of the UPL statutes to enjoy the benefits.”<\/span><\/p>\n

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    The Objective of Professional Licensing<\/span><\/em><\/a> — In “What is the Objective of Professional<\/span> Licensing? Evidence from the US Market for Lawyers” (Nov 2004), Turin Univ. Professor <\/span>Mario Pagliero finds that the objective of such regulation in the USA is explained by<\/span> capture theory, rather than public interest theory, and that “licensing increases annual <\/span>entry salaries by more than $20,000, ” with a total welfare loss of over $6 billion. (This<\/span> link accesses an abstract, but the entire study is available with a free registration.) <\/span><\/p>\n

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    Prof. Ribstein’s suggestion that no<\/em> licensing might be a better<\/span> alternative for clients seems rather extreme. For example, first moving to a <\/span>disciplinary <\/span>system that is not<\/em> dominated by the legal profession seems more<\/span> prudent [see our post<\/a> “Should Lawyers Control Lawyer Discipline?,” as well as<\/span> the post<\/a> “UK Gets Improved Lawyer Discipline System] <\/span> The analysis given byJonathan Wilson<\/span><\/a> in support <\/span>of continued <\/span>licensing rings true: <\/span><\/p>\n

    “My defense of lawyer licensing is not a defense of the status quo <\/span>with respect to the various bars.<\/span>More accurately, though, lawyer licensing is necessary because <\/span>legal services are precisely the kind of good for which the market <\/span>is an inefficient method of regulation. . .<\/span><\/p>\n

    “Corporate buyers of legal services do, in fact, have little need of<\/span> state licensing. The corporate legal marketplace, if left to its own <\/span>devices, would, in the long run, produce an efficient price and tend<\/span> to wean out poor producers of legal services.<\/span><\/p>\n

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    “A second market, however, is the consumer market. Consumers<\/span> are generally ill-equipped to evaluate their own legal needs and are <\/span>generally unable to evaluate the merits of competing producers.<\/span>Consumers cannot evaluate competing price proposals . . .<\/span><\/p>\n<\/blockquote>\n<\/blockquote>\n

    \"complaint<\/span><\/p>\n

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    <\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n

    “The current state of lawyer licensing may be flawed, but it is better<\/span> than the state of affairs that would exist if lawyering was utterly un<\/span>licensed.” . . .<\/span>Nonetheless, as can be seen in materials on our <\/span>Access\/Self-Help\/Pro Se<\/span><\/a> Page, the f\/k\/a<\/em> Gang believes that much more should be done to enable<\/span> consumers to handle much of their legal problems on their own. In addition,<\/span> so long as the consumer clearly understands<\/em> that a particular service pro<\/span>vider does not<\/em> have a law degree, and general consumer protection laws<\/span> against fraudulent, unfair, or deceptive practices are adequately enforced,<\/span> consumers should be allowed to choose nonlawyer providers. Consumers <\/span>who want a “real” lawyer should have the protection of well-crafted and <\/span>im<\/span>plemented licensing regimes. Informed choice and oversight by consumer-<\/span>oriented regulators (not by the local lawyers’ guild), should increase options and price competition. <\/span><\/span><\/span><\/p>\n

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    <\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n

    <\/span><\/span><\/p>\n

    p.s.<\/strong><\/em> Thanks to Carolyn Elefant, writing at Inside Opinions<\/span><\/em><\/a>, I learned<\/span><\/span> this evening that, making some rather lame excuses, the Cleveland Bar <\/span>has dropped its UPL case against <\/span>Brian and Susan Woods, the parents<\/span><\/span> who had (successfully) represented <\/span>their child<\/span>. See Cleveland Plain Dealer<\/span><\/em><\/a>,<\/span> “Lawyers’ Group drops claim against parents,” May 5, 2006; and <\/span>NYT<\/span><\/em><\/a>,<\/span> “Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset,” <\/span>May 6, 2006.<\/span><\/p>\n

    \n

    \n<\/blockquote>\n<\/blockquote>\n

    \"tiny A haiku break with Prof. <\/span>Randy Brooks<\/span><\/strong><\/a>:<\/span><\/span><\/p>\n

    missing in action
    \nshe dusts off his guitar
    \nreturns it to the shelf<\/p>\n

    \n

    empty farm wagon
    \na cell phone
    \nbuzzing under the hay<\/p><\/blockquote>\n<\/blockquote>\n

    lock out . . .
    \nworkers burn the editorials
    \nto warm their hands<\/p>\n

    – from World Haiku Review<\/em>, Vintage Haiku<\/p><\/blockquote>\n

    gramma hoes the beans
    \na weed clings
    \nto her nylon anklet<\/p>\n

    \n

    door left open . . .
    \nthere he goes
    \nwith his kite<\/p>\n

    ………….. from School’s Out<\/em> (Press Here, 1999)<\/p><\/blockquote>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

    Thanks to Blawg Review #56, which is hosted by Point of Law this week, I learned today that another bunch of Ohio lawyers [prior post] is “protecting” consumers by protecting themselves from competition. Walter Olson writes for BR#56: “If you set out to devise a case that would bring unauthorized practice of law statutes into […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[2926],"tags":[],"class_list":["post-5301","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1nv","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/5301","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=5301"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/5301\/revisions"}],"predecessor-version":[{"id":12655,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/5301\/revisions\/12655"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=5301"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=5301"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=5301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}