Photographer: Andrew Harrer/Bloomberg

Too Many Lawyers. Here's One Solution

An NYU professor urges lawyers and courts to drop opposition to “licensed legal technicians”

A large part of the law business is in crisis. Lawyers and judges bemoan a “justice gap”: millions of Americans who need legal services but can’t afford them. At the same time, many law school graduates can’t find legal jobs paying a decent wage.

Many factors contribute to this apparent breakdown of the law of supply and demand. Huge tuition-debt loads discourage law grads from taking low-paying public interest jobs. There’s also the bizarre reality that most grads don’t know the first thing about drafting a contract, conducting a deposition, or doing any of the other practical tasks a lawyer needs to know to make a go of it. How law schools get away with charging such high fees without imparting basic skills is a topic for another day (or many other days).

Meanwhile, Stephen Gillers, an eminent legal ethicist at New York University, has offered a partial solution to the justice gap. He recommends wider use of “licensed legal technicians,” the law biz analogue to nurse practitioners who can open their own offices and/or create partnerships with physicians.

In a letter to the New York Times, Gillers wrote: “Many traditional legal tasks do not demand the training and expense required for bar membership”—three years of law school and a six-figure graduation debt. “Advice about a divorce or a landlord-tenant problem, help getting government benefits, and assistance with an immigration issue are examples,” he continued. “Many who need legal advice don’t get it because lawyers cost too much.”

More than a paralegal but less than a bar-accredited attorney, an LLT must satisfy education and testing requirements and uphold written ethical standards. What’s not to like?

Well, non-lawyers who sort out garden-variety legal tangles at a reasonable price present a competitive threat to licensed attorneys. And those licensed attorneys, acting through their bar associations, have repeatedly sued, or threatened to sue, low-priced competitors under state rules barring the “unauthorized practice” of law.

Nor would an increase in LLTs be good news for newly minted attorneys expecting high prestige and pay. To the contrary, it would force down salaries and drive some attorneys out of the market altogether. Supply and demand would come back into balance through the replacement of lawyers with more economical practitioners.

On a hopeful note, Gillers reported that the Washington State Supreme Court, assisted by the state’s bar, recently blessed the activity of LLTs. Mega-states New York and California are looking into it.

In a follow-up e-mail interview, Gillers cautioned that some lawyers will continue to fight LLTs. “Courts have upheld unauthorized-practice injunctions against non-lawyers who have tried to render modest services the courts deem ‘legal,’ like former legal secretaries who aid parties to a simple divorce in filling out forms,” he wrote. “Courts have also invalidated legislative schemes that create licensing of people to perform services courts deem ‘legal,’ but which save consumers much money.”

Full-price attorneys defend their hostility to LLTs as a way to maintain professional standards and protect consumers from hucksterism. But this kind of supposed self-regulation also smacks of anticompetitive turf defense, a guild mentality that probably hurts consumers of modest means.

Consider the dentists. A February ruling by the U.S. Supreme Court exposed state dental-licensing boards to potential antitrust liability for trying to put non-dentist teeth-whitening technicians out of business. That high court case ought to encourage LLTs to challenge the overlords of legal practice. If the revolution arrives, its slogan might be “Teeth whitening and discount wills for the people and by the people!”

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