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Monday, March 05, 2018

Legal Ed's Futures: No. 3

Who Do We Serve?

 The structure of our legal profession increasingly benefits elites. Although large companies and wealthy individuals grumble about the cost of legal services, they can afford the very best. Attorneys for these elites are accomplished professionals: highly educated, carefully mentored, and superbly connected (often through their elite academic backgrounds). Businesses, moreover, can complement their legal assistance with armies of non-lawyers performing legal tasks. Contract managers, compliance officers, HR specialists, and other employees do legal work for these companies without the higher salaries demanded by lawyers. These businesses are also in the best position to take advantage of technologies that streamline law-related tasks.

The majority of individuals living within the United States lack these advantages. Too often, they cannot afford to hire any lawyer—even when coping with life-changing circumstances like divorce, child custody, home foreclosure, or deportation. When these individuals receive legal assistance, their lawyers may lack the training, institutional support, and time to offer the first-class legal assistance routinely provided to elites. Most frustrating, individuals cannot purchase legal assistance from non-lawyers who could provide fruitful assistance. Our prohibitions on the unauthorized practice of law primarily harm individuals; companies avoid those restrictions by hiring non-lawyers as employees. Nor do individual clients have access to the technologies that help businesses meet their legal needs efficiently—often because bar associations aggressively attack non-lawyers who try to offer those technologies.

Law schools, sadly, have done little to disrupt this structure. The Rules of Professional Conduct languish in a doctrinal backwater at many schools; most professors lack basic knowledge about the structure of our profession and the rules that govern us. Only a few innovative schools and scholars are seriously exploring new means of delivering high-quality, affordable legal services to individual clients. Even fewer are challenging the assumptions of a profession that jealously guards its exclusive right to practice law—while failing to serve the majority of individuals who need legal services.

As law schools look to the future, we need to ask these very basic questions: Who does the legal profession serve? Who should it serve? How can we design educational paths that graduate professionals capable of offering those services? Is it time to abandon our cherished belief in a general law degree, rather than one that allows focus and specialization? Is it time to recognize that individuals with an appropriate college degree may be capable of offering a wide range of basic legal services to individuals—just as they currently offer law-related services to businesses in their compliance, contract management, and HR roles? What other educational paths would help fill the gap in legal services?

As the price of legal education continues to climb, the percentage of graduates employed in lucrative jobs stagnates, and enthusiasm for law school wanes, I fear that our profession will lapse into ever-greater service to elite clients. We will continue to feel good about high-profile pro bono efforts, but pro se litigants will continue to flood the courthouses while other individuals fail even to seek justice. How can we turn this tide?

Deborah Merritt (Ohio State)

Posted by Dan Rodriguez on March 5, 2018 at 04:39 PM | Permalink


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