Lawyers and Legal Services

February 26th, 2016 / By Deborah J. Merritt

There was a time when lawyers delivered most of the nation’s legal services. That time, however, is slipping away. Businesses increasingly obtain law-related work from contract managers, compliance officers, and human resource directors. Individual clients buy homes, draft wills, file uncontested divorces, and conduct other legal business with interactive software. When those individuals visit the courthouse, they may consult a self-help kiosk rather than a lawyer.

The ABA now recognizes that these changes are altering the market for legal services. The House of Delegates recently approved Resolution 105, which establishes model regulatory objectives to guide state regulation of “non-traditional legal service providers.” The objectives are relatively hospitable to non-traditional providers. They include, for example, a focus on “delivery of affordable and accessible legal services” as well as “efficient, competent, and ethical delivery” of those services. Those objectives would support many types of service delivery by non-lawyers.

The mere passage of this resolution, moreover, sends an important signal to the legal profession: Alternative service providers are here to stay. Have law schools gotten this message? What does it mean for us?

The Market for Legal Services

The growth of non-traditional service providers does not mean the “end of lawyers.” That’s a provocative phrase that distracts from understanding the true meaning of this trend. Many alternative service providers employ lawyers; others operate within structures created by lawyers.

The ability of non-lawyers to deliver legal services, however, affects both the demand for lawyer-delivered services and the price of those services. Nobody knows how large those effects will be, but it’s hard to ignore their existence. Non-lawyers are already providing a wide range of competent law-related services to businesses and individuals — at lower prices than lawyers would charge. The ABA’s resolution recognizes that the trend is likely to grow. We can’t wish away those realities.

Responses from Legal Education

Law schools should respond to these market forces in three ways. First, we need to reflect more thoughtfully on the advantages that JD-trained lawyers offer to clients. It’s easy to believe that lawyers are “better” than non-lawyers, but does empirical evidence support that belief? If so, how specifically does a lawyer confer more value than a college (or even postgraduate) educated non-lawyer?

The answer to this question may differ depending on the legal field. We should also be prepared to find answers that surprise us. Lawyers’ value may increasingly depend on their people skills, personal networks, and insider knowledge about the legal system — rather than on more traditional abilities to locate and interpret the law.

Second, once we have identified the special value that lawyers confer on clients, we should ramp up our educational focus on that value. Again, we need to recognize that other educated professionals may learn “the law” of a particular field as well as lawyers do. If our competitive advantage lies in a particular form of problem solving, then let’s teach that problem solving. If lawyers confer value through one-on-one counseling, let’s teach our students counseling skills.

In addressing these first two questions, legal educators have to be willing to ask tough empirical questions and listen to the answers. We can’t assume that we already educate students to offer unparalleled value to clients; the market tells us otherwise whenever a client hires a non-lawyer to address legal needs.

Finally, law schools should think about whether they want to participate in educating the growing workforce of non-lawyers who perform law-related work. Relatively few law schools have created educational programs for paralegals. Should we adopt the same response to education of other law-related workers?

I suspect that most law schools will shy away from those programs, viewing them as second class. But is it second class to educate students for jobs that will offer personal opportunity while also enhancing access to justice? Perhaps we should shed our elitism and recognize a spectrum of law-related skills that we’re qualified to teach.