Editorial: Power Grab

Extra from Issue No. 24, Originally Published: 26 March 2003

The cases presented in the True Stella Awards are typically selected to illustrate various aspects of the runaway problems in our civil legal system. The aim, over the long run, is to clearly show that there is no one aspect of the problem that needs change to “fix” the entire system; the problems are indeed systemic. It’s definitely not just bad lawyers, or too many of them (though that’s part of it). It’s not just that the medical profession isn’t weeding out bad doctors (though that’s part of it).

It’s not just that insurance companies encourage frivolous claims and suits by making “nuisance” payments to make complainers go away (though that’s part of it too). And it’s not just average citizens who refuse to take responsibility for their own actions and are convinced that “someone must be to blame” for every little thing that happens to them (though that’s certainly part of it!) And more.

By demonstrating that the problem is the result of a multitude of factors, and by giving examples of real cases, TSA’s purpose is to provoke thought about (and drive public discussion of) the very real impact that the lawsuit industry has on us all.

“Lawsuit industry”? You bet: lawsuits drained 2.33 percent out of America’s Gross Domestic Product in 2001. That’s many billions more than the nation’s 2001 budget for Medicare, yet lawyers still claim there’s “no lawsuit problem” in this country!

By 2005, it’s estimated that every man, woman and child in the U.S. will be out of pocket $1,000 to pay for their “share” of lawsuits. Even if you don’t lose a lawsuit, you pay that “share” in the form of higher cost for the products you buy every day. And there’s no reduction in sight.

Public discourse of the legal system is vital to getting a grasp on the issues and solving this very real and growing problem. Yet there are groups that are actively working to stop you from getting the information you need to be informed and make up your own mind. Indeed, they want an even larger monopoly on the practice of law.

Who would that be? The American Bar Association. The ABA seriously thinks that no one in the country should be allowed to provide any sort of legal advice to anyone unless they’re a Bar-certified attorney.

ABA’s Modest Proposal

The ABA’s “Task Force on the Model Definition of the Practice of Law” proposes that each state adopt a law to codify what it means to “practice law,” and that “The practice of law shall be performed only by those authorized by the highest court” of each state — attorneys. If they succeed, those state laws would be dictated word for word by the ABA.

Attorneys already dominate the legal system. Most legislators are lawyers. Most judges are lawyers. Wouldn’t you like to sometimes get an outsider’s perspective on what your legal rights and responsibilities might be?

If the ABA gets its way, that would be illegal. Really.

Your tax preparer, real estate broker, labor union representative, credit counselor, Hollywood agent or even your family members could be hit with not just civil fines, but even jailed for daring to give you any sort of legal advice. Help you negotiate a contract? Forbidden!

Even “selecting, drafting or completing legal documents” by non-lawyers or “giving advice or counsel to persons as to their legal rights” would be illegal for anyone who is not a lawyer, and those who dare trespass on the lawyers’ newly expanded turf could be punished with both civil and criminal penalties — which transgression will be prosecuted, of course, by lawyers.

People would, however, be allowed to represent themselves in court. How magnanimous of them to allow the time-honored tradition of speaking for yourself in court!

ABA President Alfred P. Carlton Jr. claims the proposal is simply a way to provide a “clear definition” of what the practice of law is “because there is not, in most jurisdictions, a well-understood or bright-line definition of what is and is not the practice of law.” But boy, would the ABA like to draw that line! And they’re working to make it so.

How far would their proposal go? “Dear Abby would be subject to prosecution every time she answered a reader’s letter that dealt with a legal issue,” says Thomas M. Gordon, a lawyer in Washington, D.C. And no, he’s not kidding.

The U.S. Federal Trade Commission is opposed to the ABA’s proposal. “We don’t think it’s good public policy to constrain competition in the absence of really strong evidence that the constraint has an offsetting benefit,” says the FTC’s deputy director of the office of policy planning, Jerry Ellig. “We haven’t seen evidence of how consumers are more protected if an attorney is present.”

That objection, of course, has been scorned by the ABA. “Quite frankly, [the government’s objection] proceeds from the FTC’s desire to assert what jurisdiction it has over the legal profession,” harumphed attorney Dudley Humphrey of North Carolina, who helped draft the ABA’s proposal. The ABA’s faulting the FTC for trying to protect its turf is merely an ironic example of the pot trying to call the kettle black, while conveniently ignoring that consumer protection is the FTC’s very job.

ABA attorney Humphrey admits that real estate transactions are a driving force behind the ABA’s proposal. More than 80 percent of real estate closings are accomplished without the assistance of a lawyer since only about 10 states require a lawyer to complete the paperwork involved; quite naturally, when a lawyer is not required, a lawyer is rarely used. “Real estate work has been the bread-and-butter work of lawyers,” Humphrey says. “It’s the thing that keeps the doors open and the lights turned on. Certain elements in the real estate community, to speak quite frankly, are increasingly pressing to drive down prices.”

Oh dear! We can’t have that now, can we? Not when there are a lot of hungry lawyers out there ready to bill out their time at hundreds of dollars per hour to help you fill out standardized forms!

Hard to Define?

Is there truly a problem with the definition of “legal practice”? No. “There isn’t too much trouble in defining law practice for lawyers appearing in courtrooms and before administrative agencies,” says Professor Geoffrey Hazard of the University of Pennsylvania Law School. “The difficulty is that most of what lawyers do is office practice, and what they do in office practice is often about the same thing as lots of non-lawyer officials in companies and governments do.”

The ABA, he says, “is going to have a lot of difficulty with a definition that is intelligent and meaningful but not overly broad.” And, he adds, it would be very difficult to not be overly broad. Sure enough, the ABA wants to make it a legal requirement in every state that you need a lawyer to fill out forms and represent you in every negotiation, no matter whether you have the desire to be represented by an attorney or not.

The ABA’s proposal is “breathtakingly broad,” agrees Professor Steven Lubet of Northwestern University in Chicago. “It really reflects the worst of the profession, which is to assume that lawyers own the law and legal discourse. It’s anti-democratic. In a democracy, everyone has an interest in discussing the law. The content of the law, rights and remedies, is meant to be part of the public discourse.”

In addition to the FTC and professors Hazard and Lubet — who both teach legal ethics — even many members of the ABA oppose their organization’s proposal. Robert Joseph, chairman of the ABA’s antitrust law section, says making legal advice from non-lawyers illegal is the wrong approach. He says lawyers should have to compete with non-lawyers, and show consumers why they do a better job at a competitive price. Huh: pretty much what used to be called “The American Way” before “gimmie gimmie gimmie” took over.

If there are too many lawyers to do the amount of actual legal work needed, the solution isn’t to make more work for lawyers at the non-productive expense of the American economy. Rather, the solution is what the rest of the economy has to deal with: “downsizing,” “right-sizing” or whatever your preferred euphemism is for layoffs. That lawyers will take the sort of ridiculous cases featured in TSA is already a symptom of too many lawyers.

Outrageous limitations on the right to do something as simple as negotiate the terms of a contract are nothing but a pathetic attempt to grab even more power that lawyers, a class of professionals who already enjoy a gigantic monopoly, already have. As the explosion of lawsuits shows, it’s time to reduce that power, not increase it at the expense of the very people the law is supposed to serve and protect.

Sources

• “U.S. Opposes Proposal to Limit Who May Give Legal Advice”, New York Times, 3 February 2003
• “Task Force on the Model Definition of the Practice of Law”, American Bar Association, Draft Proposal of 18 September 2002

My 2020 Thoughts on the Matter

On 11 August 2003, faced with firm pressure by the Federal Trade Commission (writing in a formal letter, “If adopted by state governments, the proposed Definition is likely to raise costs for consumers and limit their competitive choices. There is no evidence before the ABA of which we are aware that consumers are hurt by this competition and there is substantial evidence that they benefit from it. Consequently, we recommend that the proposed Model Definition be substantially narrowed or rejected.”), it appears that the Task Force “substantially narrowed” its recommendations:

RESOLVED, That the American Bar Association recommends that every state and territory adopt a definition of the practice of law.
FURTHER RESOLVED, That each state’s and territory’s definition should include the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.
FURTHER RESOLVED, That each state and territory should determine who may provide services that are included within the state’s or territory’s definition of the practice of law and under what circumstances, based upon the potential harm and benefit to the public. The determination should include consideration of minimum qualifications, competence and accountability.

The ABA Task Force on the Model Definition of the Practice of Law still exists. That page tallies their progress in getting various states to adopt at least some part of their definitions.

The page also notes that the ABA Board of Governors included this tidbit in their own resolution in creating the Task Force to begin with: “This Task Force and the Standing Committee on Ethics and Professional Responsibility shall maintain a liaison relationship.” One would hope.

Another notable thing I noted on the ABA’s site: that original 2002 Model Definition of the Practice of Law still appears to be latest draft, so I have to conclude they have made no other such grand gestures since.

There is still no better summary than the quote of Northwestern University law Prof. Steven Lubet: “It really reflects the worst of the profession, which is to assume that lawyers own the law and legal discourse. … The content of the law, rights and remedies, is meant to be part of the public discourse.” May it forever be so.

Letters

Regarding the crime victim’s family suing Viacom/cable channel VH1 for airing a documentary featuring the criminal responsible

George in B.C., Canada: “George Carlin once made a comment about morality in the media that I think perfectly fits the story about the suit against VH1: ‘…a TV has two knobs on it: One knob turns it off, and the other one changes the channel! You can actually change the channel [and watch something else]!’ I’m almost certain that VH1 didn’t go to the Hart/Garrett household, steal the remote controls, and remove the knobs from the TV. They watched the documentary because they *wanted* to be upset.”

But a few saw it a different way. For example:

Jodie in Alabama: “I have to disagree that the lawsuit against Viacom for VH1’s Music Behind Bars segment is deserving of a Stella Award. I’m not familiar with Arnold Shapiro and his previous work but I don’t see how watching this show would scare anyone straight. All it tells me is that they committed a terrible crime, and while they’re supposed to be paying for it they’re being given [an] expensive instrument (that the taxpayers probably paid for) and the opportunity to play them on national television. How many great musicians out there are trying to get a break and never make it, but Jason Henthorne gets to perform on TV because he murdered someone? If they really were airing it for the right reasons, wouldn’t it have been nice to try and explain their intent to the victim’s family instead of ignoring their concerns? Sure the producers say that they weren’t trying to glorify the criminals. They had to come up with something after they lost a great deal of advertisers.”

Jodie, you “assume a lot of facts not in evidence” there. The show wasn’t trying to “scare” anyone straight; the producer was merely the same producer who made another, totally different, much older documentary called Scared Straight. The point of that was to show that he is a highly respected documentary producer, not just some schlock out to exploit the system.

To say the murderer “gets to perform on TV because he murdered someone” is a bit much; he was used as an example (to quote the producer) “to show that a music program in a prison has many beneficial arenas to it.”

It was not established in the story whether the instruments were paid for with tax dollars (unlikely) or by donations (very likely), but either way, how are citizens supposed to be informed about the issues involved and make up their minds whether to support rehabilitation programs in prisons if the media is sued for exercising its First Amendment right to look into it and tell their viewers what they found? The plaintiffs weren’t hurt by Viacom, they were hurt by a murderer. The Stella Award stands.

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