Thomas Morgan on Realistic Questions About Modern Lawyer Regulation
If this symposium is asking the single question whether U.S. jurisdictions should deregulate the practice of law, my answer has to be no. My problem is that the question itself conflates at least three questions, and the answers to each should be different.
The first question is whether people other than licensed lawyers should be allowed to provide all or many traditional legal services. The right answer to that question is yes. First Thing We Do, Let’s Deregulate All the Lawyers, gives that correct answer, but it is far from a new insight. The proposal is essentially to eliminate prohibition of the unauthorized practice of law. I called for it in the Harvard Law Review in 1977, Deborah Rhode wrote a much more extensive argument in the Stanford Law Review in 1981, and dozens have made the same points since. Almost everyone acknowledges that law firms have made extensive use of paralegal staff for many years, and even the ABA Commission on Professionalism admitted in 1986 that many services now delivered only by licensed lawyers could be handled as well by trained paralegals.