Legal Ethics

Why not let nonlawyers help regulate the legal profession? Law prof makes case for change

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Lawyers are not all-knowing and could benefit by allowing nonlawyer outsiders to help regulate the profession, a law professor says in a law review article.

Washington and Lee law professor James Moliterno tells the Wall Street Journal Law Blog (sub. req.) that nonlawyers should be allowed to serve in leadership and policy positions in the ABA and state bar associations, where they could help set standards for the profession. He makes his case in an Emory Law Journal article (PDF) and a new book, The American Legal Profession in Crisis: Resistance and Responses to Change.

In an interview with the Law Blog, Moliterno outlines possible changes if nonlawyers help govern the profession. There could be a movement to a national law license or a relaxed admission-on-motion system to allow freer law practice across borders. Ethics rules barring nonlawyer ownership of law firms would likely be relaxed. And entities such as LegalZoom and Rocket Lawyer would gain ground as a way to assist low- and middle-income people needing legal help.

Here are some excerpts from Moliterno’s article:

“The profession seems to repeat the same question in response to every crisis: How can we stay even more ‘the same’ than we already are? In short, the legal profession is ponderous, backward looking, and self-preserving. …

“I recommend a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises. My hope is that the legal profession can be more like companies that have thrived because of their innovative tendencies (e.g., Apple, IBM, and Western Union), and less like companies whose stagnancy caused large-scale problems (e.g., Kodak). …

“History demonstrates that lawyers are inept at being their own exclusive regulators. Lawyers tend to look backward to precedent and sideways to existing articulations of law. When lawyers do look forward, their primary task is to predict and guard against risk. It is not in lawyers’ nature to be forward-looking planners or sensitive to cultural trends. …

“The unwelcome cure is to enlist nonlawyers—planners and evaluators of cultural trends—in the regulation of the legal profession. These people, who have a wider view and can see the path ahead and not merely the ground already trod, can regulate the legal profession without the same self-interest as established members of the bar.”

Related coverage:

ABA Journal: “Clear Track: Ethics 20/20 Commission Can Now Address Issues of Fee-Splitting with Nonlawyers”

ABA Journal: “Clean Sweep: House of Delegates Approves Ethics 20/20’s Full Slate”

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