Outside the Board of Trustees meeting room at the San Francisco HQ of the State Bar of California hangs the photograph above. It captures a the last great pivotal moment in lawyer regulation, the transfer the vast bulk of legal services regulation from the judiciary to the lawyers through the institution of the integrated bar. Note that I say legal services regulation, not lawyer regulation, and I do so for a very good reason: in 1927 only lawyers could provide legal services. Most of the legal services regulation not conducted by governmental entities other than the State Bar was suppression of non-lawyer providers, “regulating” them out of existence through statutes criminalizing the unauthorized practice of law.
Even though the integrated bar was a creation of the Legislature, the judiciary kept its hand in, under separation of powers principles, especially in the imposition of discipline. The State Bar Act explicitly acknowledges that in our Bus. & Prof. Code section 6100. In 1962, voters were asked by initiative to solidify the position the integrated bar, a quasi-private, quasi-public entity, within the judicial branch and they did so, a fact proudly chiseled on the State Bar’s new front porch in Los Angeles.
Now we in the next pivotal moment in legal services regulation.
The most obvious manifestation is the movement to take power out of the hands of the lawyers within the State Bar itself, the so-called governance controversy. Right now there is some head scratching within the State Bar itself about the liberal use of the word “member” in the State Bar Act (it also used in Article VI, section 9). Member implies membership and, as American Express once reminded us (before almost everyone could become a member), membership has its privileges. Privileges for lawyers are frowned on in the new post SB 163 State Bar. The State Bar’s Mandatory Fee Arbitration Committee found this out when it presented new State Bar Form Fee Agreements to the Board of Trustees, prompting questions from a member of the staff as to whether some of the form fee agreements might be too lawyer-friendly. This manifestation of change is being driven by the Legislature.
But the other manifestation of change is the more significant.
That is breakdown of the lawyer monopoly over the delivery of legal services, the destruction of the guild. A small but significant step was undertaken by the Legislature in 2000 when it sanctioned, for the first time, delivery of legal services by non-lawyers, albeit very limited services, by so-called unlawful detainer assistants and legal document assistants. (Bus. & Prof. Code sections 6400 et seq.) The State Bar of California made headlines last year when it announced that it was exploring the idea of limited scope licensing, new categories of legal professionals that would fill the very large gap between the limited scope of legal document assistants and fully licensed lawyers.
Theses manifestation is driven by economics. The lawyer guild has proven too expensive. The massive growth in “independent paralegals” in last century prompted the Legislature to act to create the legal documents assistant designation. The collapse of the Lawyer Bubble in this century is part of what is prompting examination of new categories of legal para-professionals. The market will create non-lawyer legal services regardless of laws that attempt to maintain the guild.
When the Legislature created the unlawful detainers and legal document assistants, no mechanism was created to regulate them. Perhaps it was thought that the only regulation necessary was the criminal prohibition on the unauthorized practice of law. Last year the Legislature passed AB 888 which would have given the State Bar new regulation powers in that area — but only the power to regulate out of existence. After very strenuous opposition from the California Association of Legal Document Assistants (CALPA), the bill was vetoed.
The problem with the AB 888 approach is that is seeks to perpetuate the guild instead of replace it. Rather than sanctioning the unauthorized practice law of law we should, in a different meaning of word, be sanctioning it (funny how a word can have two completely opposite meanings.)
As the State Bar struggles to free itself from the vestiges of lawyer control, it needs to re-invent itself in other ways.: a new Legal Services Authority overseeing all legal service providers from document assistants to full-fledged lawyers. Regulation of non-lawyer legal service providers with the goal of encouraging their existence, and making sure that the services they provide are delivered with competence and honesty, is in the public interest. as opposed to just terminating the existence of such providers. Weeds flourish in vacant lots.
The big question is who will control this new entity, the Legislature or the Supreme Court.