Cracks in the Guild

guild 2The meetings of the Association of Professional Responsibility Lawyers are always worthwhile.  Think of hanging out with the best craftsmen (and craftswomen) in your guild, who also happen to be a lot of fun, too.

The recent meeting in my hometown of San Diego was no exception.    We learned about the fine art of bellydancing.  Not to mention teeth whitening.

Or more precisely, who gets to whiten teeth.  An issue that the United States Supreme Court addressed in North Carolina Board of Dental Examiners v. Federal Trade Commission.  Teeth whitening may seem a long remove from legal ethics.  But this case is causing tremors among champions of that long held shibboleth about the law being a “self regulating” profession.   That’s because the United States Supreme Court found that North Carolina’s Board, composed almost entirely of practicing dentists, acted in restraint of trade when it sent 47 “cease and desist” letters to non-dentists providing teeth whitening services.  The Court found that the Board could not claim state action immunity because it was not actively supervised by the state.

“Self regulating profession” and “actively supervised by the state” are concepts that clearly exist in some tension.   In California, our case law seems to try to square that circle by describing the State Bar (an agency enshrined in Article VI of the California Constitution) as the “administrative arm” of the Court for discipline and admissions, a mere instrumentality for the exercise of the Court’s inherent authority over this area, a concept that the Legislature also nods to in Bus. & Prof. Code section 6100.

But the real issue here is the not regulating law practice but who gets to be a law practitioner.   The context is the onslaught of a variety of non-traditional legal service providers, an onslaught that is making lawyers extremely nervous as they see their slice of the legal services pie being slowly nibbled away by the likes of Legal Zoom, and now, the much despised Avvo, which just announced its plans to offer fixed fee legal services through an attorney network in 18 states.   Fear of a non-lawyer planet is also roiling Washington State, which has seen warfare between the Washington Supreme Court Legal Practice Board and the Washington State Bar over the Limited License Legal Technician (3LT) concept (even as Utah explores the concept.)

3LT

The Case of The Rogue Teeth  Whiteners also has impact on the California State Bar’s own ongoing governance soap opera, a production of the Governance in the Public Interest Task Force (GITPIT-F) from an original screenplay by SB 163.  While the evidence of state supervision in California seems strong,  the idea that the professional board regulating lawyers should be composed of lawyers, is a prime target of consumer advocates led by the Center for Public Interest Task Law.  GITPIT-F has a report due in March 2017 and it may very well recommend further changes to put more non-attorney members on the State Bar Board of Trustees, if not more sweeping changes.  Of course, the Legislature could get there first, as consideration of the State Bar’s annual fee  bill moves forward amidst a swirl of negative stories concerning the ongoing controversy over the Chief Trial Counsel’s reappointment,  the revelation of extravagant travel spending during the Dunn Administration, and news of the Office of Chief Trial Counsel’s seemingly lax attitude toward prosecuting non-attorney immigration fraudsters.

A final item submitted for your consideration is the American Bar Association’s Resolution just passed at its own meeting in my lovely city by the bay, the ABA Model Regulatory Objectives for the Provision of Legal Services.  It is a short list of admirable platitudes like “protection of the public” and “independence of professional judgment”.  But it closes with a rather solid declaration in support of the guild, much to the disappointment of those who favor the disruptors:

FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.

FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

sand castle

Cracks in the Guild, to be sure.  But the Guild still stands.

The Two Deweys

When I took legal writing my first year of law school, our instructor would use exemplars from the fictional firm and comic trope  “Dewey Cheatam and Howe” to teach how to write legal papers.   Everybody seemed to think that this was mildly amusing.

Lawyers from a different Dewey firm went on trial last week, accused of cheating ’em and how!  Nobody thinks this is funny.

Even in law school, the use of the Dewey Cheatam name made me a feel a little uncomfortable.  Up until that time, I had not really thought of the profession as a whole as being seen in bad light by anybody.  Having no life experience of lawyers, my image of lawyers had been shaped by media, not so much Perry Mason but The Defenders.

 

E.G. Marshall, Lawrence Preston in "The Defenders"

E.G. Marshall, Lawrence Preston in “The Defenders”

 

Maybe it made us all a little uncomfortable, which is why we proto-lawyers laughed at it.  Lawyers, after all, are supposed to be smart people that you could trust.  The idea that we might be cheating people while pretending to be trustworthy, reduced to the very name of the law firm used to teach law students, even then suggested an unstudied, perhaps an almost unconscious, cynicism about the profession.  Of course, that was only a first taste.   The prevailing feeling among most of my law school peers was that you either had to be in top 10% of the class and obtain a position with a large law firm, make partner in seven years and  relax, or that you were doomed to lifetime of drudgery.

My introduction to Dewey Cheatam in 1982 was about the time that Findley Kumble was on its way to becoming the first mega firm, a process of accretion based on a number of mergers and acquisitions that would eventually unravel as partners and clients moved on to greener pastures.  At the time it seemed an outlier, a situation largely wrought by the egos of the lawyers involved.  The rising tide of Golden Age revenue was lifting all boats.  But later, other firms, many other firms followed the same route as the tide began to go out.  Part of the reason the tide went out is that the value proposition presented by large law firms and the lawyers in general  increasingly had less appeal, first to consumer clients and then to corporate clients.

It is common to feel cheated when you realize you are paying for something you can get more cheaply.   The Golden Age was extremely lucrative for lawyers, not so much for clients.   Part of the cost of all that lucre for the profession was the acid bath of cynicism that it seemed to spawn.  Lawyers are known for their pessimism; indeed, we are well paid for telling others exactly why the glass is only have full.  We can see too clearly the ways much lawyering in the Golden Age was about acquiring that lucre and little else.

OB-TR592_dewey7_E_20120709123751

The link between the two Deweys should be largely of historical interest now.   Dewey & LeBoeuf  is a marker, an end of an epoch signpost, as the profession reinvents itself, as it reforms its value proposition.  It’s value proposition not only its clients, but its value proposition to itself.   The end of the Lawyer Bubble, the end of the Golden Age should mean the end of the idea that lawyering is the path to great wealth,  affords us an opportunity to re-discover the true worth of our profession and leave cynicism behind.  Let’s take it.

 

 

Rules of Professional Conduct: Lead, Follow or Get Out of the Way?

directionsNews of the demise of the California’s version of the Model Rules of Professional  Conduct after 14 years of effort caused many heads to explode among the ranks of our states’s ethics lawyers this week.   The implications and the issues raised by this saga are numerous but the biggest one really isn’t new at all and reaches far beyond California exceptionalism: what exactly to  do we want rules of profession conduct (writ small) to be?

Do we want them to lead, follow or get out of the way?

Lead?

Should rules of professional conduct be used to make change?  Consider ABA Model Rule 1.10, which provides for screening of disqualified lawyers.  This change, something that large law firms wanted to deal with the problem of tainted hires, was considered and rejected by the California Rules Revision Commission (RRC) largely because it would have gone where no California case had gone before Continue reading

Do We Need Advertising Rules?

A startling thought given voice at the recent meeting of the Association of Professional Responsibility Lawyers (APRL) in Boston.  As I understand the concept, in the language most other jurisdictions speak, Model Rules 7.1 – 7.6 are not necessary in light of Model Rule 8.4’s prohibition on dishonesty.  Californians would look to our twin constellations of Rule 1-400 and Bus. & Prof. Code sections 6157 et seq.

Both the Model Rules and California law set forth rather detailed schemes dictating the form and content of attorney advertising.  By comparison, California’s false advertising statute Bus. & Prof. Code section 17500, offers a relatively concise scheme generally applicable to businesses (and expressly inapplicable to lawyers alone under section 17500.1.)  What real function does the rest of the filigree in the lawyers’ codes serve, so the argument goes. The real danger is dishonest or misleading advertising, so we only need a rule against that.

In the discipline world, that has a degree of truth as what we are generally fighting about is whether the advertising is “false, deceptive, or which tends to confuse, deceive, or mislead the public” under Rule 1-400(d)(2), which is roughly comparable to Bus. & Prof. Code section 6157 and Model Rule 7.1.  Most of the rest comes into play in California in the context of advising clients as to what the law requires.

The significance of the question lies less in the answer than in the fact that the question is seriously asked.  Why exactly does section 17500.1 exist and how is the lawyering business really different from any other business? The issuance of the Canadian Bar Association report on the future delivery of legal services casts a light that puts these questions in sharp relief.  Lawyer advertising was, after all, originally approved based on the rationale that it would help expand the availability of legal services and lower the cost (Bates v. State Bar of Arizona (1977) 433 U.S. 350.)  It hasn’t worked out that way.  Now those concerns are imperative to the survival of the legal profession.  Of course, if the CBA approach is followed, we are going to being junking a lot more than the advertising rules.

Chief Trial Counsel Says No to Nolo

Deputy Trial Counsel Jayne Kim

Chief Trial Counsel Jayne Kim

Perhaps no government agency in California has been as studied as often as the State Bar of California.  Many of those studies gather dust on the bookshelves of the State Bar library, such as the study conducted by the eminent John Berry and the ABA in 2000 that recommended exclusive control of the discipline process by the Supreme Court.

A few of these innumerable studies have led to substantial and meaningful change. Continue reading