Rethinking Regulation

Musings on unauthorized practice and lawyer exceptionalism

For more than a century in this country we have been engaged in developing by judicial experience a body of principles and a body of rules as deductions therefrom to accord as nearly as may be with the requirements of justice. This is true especially of that most important part of our law which is to be found in the reports of adjudicated cases. Almost the whole energy of our judicial system has been employed in working out a consistent, logical, minutely precise body of precedents. But while our eyes have been fixed upon the abstract rules, which are but the means of achieving justice, the results which we obtain every day in actual causes have escaped our attention. If the dilatory machinery of enforcement succeeds finally in applying the principle to the cause, we may be assured that in the very great majority of causes the result will be what it should be. But our failure to devote equal attention to application and enforcement of law has too often allowed the machinery designed to give effect to substantive rules to defeat the end of law in its actual operation.

—Roscoe Pound, The Spirit of the Common Law (1921)

The special knowledge that lawyers acquire in studying the law assures them a separate rank in society; they form a sort of privileged class among [persons of] intelligence. Each day the find the idea of this superiority in the exercise of their profession; they are masters of a necessary science, knowledge of which is not widespread; they serve as arbiters between citizens, and the habit of directing the blind passions of the litigants toward a goal gives them a certain scorn for the judgment of the crowd. Add to this that they naturally form a body. It is not that they agree among themselves and direct themselves in concert toward the same point; but community of studies and unity of methods bind their minds to one another as interest could unite their wills.

Hidden at the bottom of the souls of lawyers one therefore finds a part of the tastes and habits of aristocracy. They have its instinctive penchant for order, its natural love of forms; they conceive its great disgust for the actions of the multitude and secretly scorn the government of the people.

—Alexis De Tocqueville, Democracy in America (1835), Pt. 2, Ch. 8

1.

A "beat" I hope to cover more is the the topic of attorney regulation and how it will shape—and be shaped by—AI and other technologies. Conceptually, I find this issue challenging. In law school, "professional responsibility" is taught in a (notoriously dry) required class that, in my experience, is taught using the same case law method prevalent in law school. In law and technology, debate centers on specific regulations or "opinions" like ABA Formal Opinion 512 on "Generative Artificial Intelligence Tools" that are written in a lawyerly "applying the law¹ to the facts" style, with the ensuing debate focusing on legalistic arguments for and against the opinion.

In other words, lawyers treat "ethics" is a shorthand for learning a formal set of rules the same way one might learn the federal income tax code. At the time, I found this approach was i) not that interesting, and ii) failed to provide much justification for the structure of the present rules.

In particular, these are some axiomatic principles of ethics that I took for granted until actually practicing law:

1. Attorneys are licensed to practice by state agencies;

2. As a condition of maintaining their license, they must adhere to ethics rules;

3. State legislatures are generally prohibited from regulating attorney practice, so in most cases the regulations are written by an agency of the state supreme court (i.e., lawyers);

4. Historically, there is no countervailing industry that exerts significant market pressure on lawyers to adapt, as industries like hospitals and insurance companies exert pressure on doctors;

5. Thus, nobody—besides lawyers—has a stake in deciding how attorneys do business.

To give an example of this difference in practice in Illinois, almost all professionals, doctors included, are regulated by the Illinois Department of Financial and Professional Regulation (IDFPR). As the name suggests, IDFPR is sort of a one-stop shop for handling the bureaucratic work of administering professional licenses, for everyone from doctors to realtors to auctioneers. The rules for these licenses (as well as the decision to regulate each profession in the first place) are made by the legislature, under e.g., the Medical Practice Act or the Auction License Act. While there is plenty of ongoing debate about the breadth of regulation, to the extent that the state believes it is important to regulate the conduct of certain professionals, that debate occurs through democratic processes and the regulations themselves are administered by a state executive.

By contrast, lawyers are regulated by the Attorney Registration and Disciplinary Commission (ARDC). Per its website:

The [ARDC] operates under the authority of the Illinois Supreme Court, which has sole authority to regulate the admission and discipline of lawyers in Illinois. Since 1973, administrative responsibility for the registration and discipline of Illinois lawyers has been delegated by the Illinois Supreme Court to the ARDC. The ARDC is overseen by a seven-member Commission, whose members are appointed by the Court. Four members of the Commission must be members of the Illinois bar, and the other three members are not lawyers (“public members”). The Commissioners serve without compensation for three-year terms. The Commission acts as a board of directors for the disciplinary agency, setting general policy and overseeing its implementation. The Commission has no role in deciding cases before the ARDC.

...

Registration practices and disciplinary proceedings are governed by rules adopted by the Illinois Supreme Court. The Court has delegated to the Commission authority to make additional rules, to enter orders related to ARDC operations, and to establish policies for disciplinary proceedings subject to review and action by the Court. Other duties of the Commission include appointment of the members of the Inquiry Board, the Hearing Board, the Oversight Committee and the Client Protection Review Panel; publication of an annual report; determination of Client Protection awards; collection and administration of the disciplinary fund; and performance of an after-the-fact review of a representative sampling of investigative matters closed by the Administrator without referral to the Inquiry Board.

To my knowledge Illinois is not an outlier among states; this is just how it works. The market for attorneys is formulated in a closed loop where licensed attorneys decide what licensed attorneys can and cannot do, and how they should or should not make money. Perhaps because this insularity, the "business" of law is only ever discussed circumspectly, if at all. Outside of professional responsibility class itself, there is no available part of your legal education where you may learn how successful lawyers run a business, or why law firms do not look, feel, or act like any other modern corporation. It’s largely assumed you will work as a law firm associate where you will learn how to become a law firm partner. Nor are there many professors within the law school or elsewhere who even seem interested in studying law as a business (i.e., by producing "case studies" about legal practices).²

2.

In law school, I participated in a health law clinic through a local legal aid office in Charlottesville, VA. The work largely involved helping clients navigate an alphabet soup of public benefits agencies. At the time, the office was also prioritizing intakes to address a growing problem with a local hospital that was aggressively enforcing collection of medical debts. Through this outreach, I represented a client who came to us because his employer (a restaurant) had started garnishing money out of his paycheck.

Although it's widely understood that your paycheck can be "garnished" for a debt, most people do not realize that garnishment itself is the last step of what is, formally, a lawsuit. In the case of a standard unpaid debt, the creditor first needs to obtain a judgment against the debtor; if the debtor does not show up, the court enters a default judgment. Only then may the creditor take action to collect, and they may do so through a variety of court processes, one of which is garnishment. This enforcement mechanism is not just for paychecks; a creditor may institute garnishment proceedings to collect on any liability owed to the debtor. However, under federal and Virginia law, when an employee's pay is garnished, the garnishor may not subject more than 25 percent of the employee's "disposable earnings."

Despite the extremely clear law—written into the form garnishment summons used by the court—our client had been garnished for roughly twice that amount for a few months, resulting in thousands of dollars illegally garnished. He only sought us out because he had received a fresh garnishment summons which he didn't understand. (My recollection is that he ignored the first one and then realized that he needed to see a lawyer after money left his paychecks.)

Given this blatantly illegal conduct, it was obvious that we could help this potential client, so we represented him at the garnishment proceedings. We didn't really know what the proceedings would look like, but assumed we would have some opportunity to appear in front of a judge and explain what was going on. I did the math and prepared a simple chart showing each payment and the excess amount that was being garnished. Along with my supervisor and my client, we showed up at the weekly garnishment court call.

On the way in, I went to use the restroom, assuming that there would be time before our client's name was called. When I walked out, everything was over; my supervisor and client had walked into the courtroom and sat down. The presence of anyone in the courtroom besides the creditors' attorneys apparently so flustered the judge that he asked these intruders to immediately explain why they were there. At which point my supervisor explained the situation. Ultimately, he entered a haphazard order in our favor.

3.

I think about this story often in the context of discussions about our "access to justice crisis," where the vast majority of Americans cannot access help for simple, non-criminal legal problems. Despite a very straightforward law on the books, and an existing legal process designed (in theory) to give debtors the right to enforce that law, our client was in no position to do anything about it if he had not come to us. Because he did, we could quite easily help him. It’s, in one sense, a perfect example of the "system" working.

However, our client was one of hundreds of debtors' names on the court docket that day, none of whom had an attorney. And, based on our single experience, it seems likely that another illegal summons passed through the court unremarked upon.

Many well-meaning attorneys and politicians want to solve problems like this through charitable pro bono and legal aid efforts that paved the way for my garnishment client. Just in my own backyard, I can find no shortage of such efforts. In Illinois courts, there is both a Supreme Court Commission on Access to Justice and an Access to Justice Commission of the Administrative Office of Illinois Courts. Illinois lawyers themselves can participate in the Illinois Bar Foundation, the Chicago Bar Foundation, and presumably other such foundations that provide grants. Using federal COVID relief funds, the City of Chicago introduced a right to eviction counsel pilot program in 2022; the newly-elected mayor introduced an ordinance in 2023 to make this program permanent, "subject to appropriations." That ordinance is now in legislative purgatory. Given the Chicago budget situation, it’s likely never to escape.

I do not discount that these efforts will have some impact at the margin: Money for legal aid and pro bono, simpler court forms, improved technology, language access, etc. are all helpful.

Fundamentally, I do not think these initiatives will ever fully address situations like the one faced by my garnishment client or the many unrepresented debtors who were on the docket that day. My suspicion is that many of the unrepresented clients who fall through the cracks are just like him; people who face a confusing situation that may (or may not) be illegal but lack the connections, means, and resources to talk to someone who could give them a clear answer in 30 minutes or less. Everyday individual legal needs are idiosyncratic, but the dominant legal business models—expensive hourly billing and contingency fees—are poorly suited to provide a service that most people (and many businesses) can afford. These business models are not an accident nor are they inevitable, they are a product of the rules that lawyers make for themselves.

There were hundreds of summons that day in the central Virginia courthouse, and presumably tens of thousands such summons around the country. The unaddressed needs are so vast that we need more than strategic plans, white papers, and grant proposals; we need the bar to appreciate that its regulations prevent lawyers from adopting creative business approaches to provide affordable legal services to clients.

(One of many parts, to be continued.)

1. In this case, the ABA's model rules.

2. Herbert Kritzer, one of the most prominent academics studying how law practices actually function, is a political scientist.