Practicing without a license

I'm in favor of it, obviously.  The Washington Post reports in alarm over the high cost of legal services, even approving in its own backhanded way of high hourly rates charged by lawyers in light of the poor things' unfair student debt (that being, obviously, the only excuse for a market rate in a just society).  Here and there, however, people are trying out the legal equivalent of a nurse practitioner.

For years I ran my firm's pro bono legal clinic for homeless kids, 99% of whom had the same recurring problems, typically involving outstanding warrants for unpaid tickets.  My neighbors come to me with the middle-class equivalent, which is wills and divorces, with the occasional business contract.  Only in the case of the business contracts am I likely to add much value to what is available online to anybody with a modicum of instruction and experience.  Cheap over-the-counter legal assistance for routine problems would cut way down on the cost of a lot of ordinary problems.  If at the same time it makes some dull and lazy lawyers feel the cold breath of competition on their necks, well, maybe they'll get better at returning their phone calls timely.

Do I worry that people will get into trouble when a cut-rate semi-professional doesn't diagnose the zebra conditions?  Not very much.  The realistic alternative for most people is no legal advice at all.  There are many, many controversies that can't be solved by a lawyer for less than the amount in dispute.  Like a nurse practitioner, a legal practitioner who finds himself in over his head can refer people to an expert for anything really hairy.  That's what I do when people approach me for consumer jobs outside my expertise:  I try to do the bone-headed part up front--all the time-consuming process of extracting the facts and documents from the client, and roughing out an approach--then refer them to an expert with a situation that should now be cheaper to handle.  Long experience tells me that the expensive part of a lot of legal work stems from using the lawyer as a secretary.  Nearly all the cost of administering an estate, for instance, is monkey work consisting of endless repetitive letters to holders of various sorts of accounts and titles, finding out what documents they need filled out and sent in before they'll transfer title to heirs.  Anyone with a bit of training can do that for himself and save a ton of money.  Cassandra, with her paralegal experience and natural advantages, could do all of it standing on her head.

We sometimes couch licensing restrictions as a public protection, but there's usually a big old hunk of anti-competitive merchant protectionism built right in there.


Cass said...

I need to think about this one a bit before responding :)

I will say that the past few weeks, I have been blessing whatever lawyer drew up my mother in law's medical advance directive. It was a thing of beauty (and far more useful in a fight, as the Irishman once said of Mrs. Murphy's bosom :p).

Texan99 said...

In Texas, as far as I can tell, literally everyone uses a standard legislated form of medical directive. Being standardized and legislature approved, it has the advantage of being automatically accepted by any hospital. It's quite flexible, too: only the boilerplate is standardized.

Even if we went to a lawyer about a medical directive, all he would have to do is concentrate on the really controversial parts, which would keep costs down.

But this sounds ominous. Has your MIL been very ill?

Cass said...

Yes, she had a massive stroke about 3 weeks ago. Initially, the prognosis was grim (no pun intended), then for a while it looked as though maybe she was going to beat the odds.

Now, we're just trying to keep her comfortable while nature takes its course. Her medical advanced directive made a heartbreaking choice so much easier on everyone.

I agree with you about the value of boilerplate/standardized legal text, and I think I agree with much of your central argument.

Here's where my reservations lie: my opinion of the ability of most people to even bother to read legal documents they've signed (much less *understand* what they're committing to) is abysmally low. This is why we have people signing mortgages without it ever dawning on them that they just used someone else's money to buy a house and consequently, the house isn't really "theirs" until they have paid that money back (i.e., at the point where they used their own money to buy the house.

I love law and find it fascinating, but the average person finds it hard going. I taught a supplemental class in BusLaw (mostly common law precepts), and was stunned by how much trouble even the smarter students had applying the course material.

I wonder how many more lawsuits we'd have if people just downloaded standardized text from the Internet and took it to the legal equivalent of a nurse practitioner? Maybe I'm being too pessimistic, though.

Your point that for most people the choice isn't between a good lawyer and a para-professional, but between a para-professional and no representation at all is a strong one. I've definitely seen paralegals who really knew their stuff.

Perhaps that would force the law to become more accessible and less Byzantine?

Cass said...

You know what I've always wished for? Annotated legal documents (legal text to the left, a layperson's summary of each clause to the right).

The pessimist in me says some moron would sue the annotator, though, for failing to adequately explain some obscure legal nuance :p

Texan99 said...

One of the few areas of "reform" in which I have a bit of confidence is a movement over the last several decades to require more plain English in standard documents. Although I'm not normally a fan of legislated contracts, I think there's a place for a law that states that anyone who executes such-and-such a standard form can expect the usual counterparties (such as hospitals) to accept it and no backtalk or delay in an emergency. Texas has standard forms for powers of attorney as well as medical directives. It's very nice not to have to argue with each bank or investment house about exactly how the language should read before they'll bother to honor a substitute signature for an incapacitated relative.

I've sometimes found pretty good "annotations" in internet searches. There are often textbook-like publications that are aimed more at practitioners and less at law students, which have common-sense explanations of standard clauses, sometimes footnoted to various lawsuits that raised issues with wording. Bar associations and professional associations sometimes publish good materials. It's also getting steadily easier to find this kind of thing in Google searches.

It's an interesting question whether more or fewer people would get into trouble with standard contracts like mortgages, depending on whether they went to a lawyer or to a paralawyer. I'm guessing that most lawyers aren't that great at explaining the nuts and bolts of mortgages, etc., and if they took the time, would end up having to charge a fortune. That could be money well spent if the clause is unusual, but it shouldn't be necessary for the ubiquitous consumer clauses. My hope would be that a paralawyer would put it in plainer English than the average lawyer could muster, at least concerning that very basic point that you identify: you really and truly borrowed this money. It's not some scam of the bank to force you to pay it back over time or else they'll unfairly deprive you of "your" house. But we're up against a strong current here: the idea that a lender has wronged you in some way by luring you into debt and then (gasp) expecting you to pay it back. We used to joke bitterly at the office about including a count of "tortious lending" in a lawsuit against a bank, but honestly it's more or less come true in recent years.

I'm sorry to hear your MIL apparently won't recover, but it's good when the family understand and accept this, and neither the hospital nor the family get hooked into brutal medical endurance trials. Sometimes the best thing everyone in the family can do for each other is help each other face what's happening and help the ill family member pass as comfortably as possible. It's heartbreaking either way, but more tolerable when everyone's eyes are open.

Cass said...

Yep :)