California Bar Journal
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Time to improve our Trademark
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President, State Bar of California
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Palmer Madden, President, State Bar of CaliforniaIn the last 20 years, there has been an ever increasing tide of non-attorneys offering consumers legal advice. Real estate agents draft contracts, accountants give tax advice, self-help books tell people how to do divorces, paralegals are helping people draft wills, bankers advise wealthy people how to set up transactions to avoid taxes. In the large part, the response of our profession to these inroads by non-attorneys has been to fight to protect what is seen as our turf.

This strategy has not worked. The tide of non-attorneys providing legal advice continues to flow. The time has come for our profession to stop acting like King Canute, trying to hold back a tide that cannot be stopped. It is time to shift the profession’s focus.

Instead of trying to protect what some see as the rights of our Guild, we should instead be seeking to raise the profession by protecting our Trademark. This approach will raise the prestige of our profession, serve the public interest and increase the earnings of our profession.

The Old Paradigm — the Guild Model

Historically, attorneys have operated under the paradigm of the legal profession as the sole legitimate mediary between the law and the citizens. Any person unlicensed to practice law who sought to provide advice about the law was seen under this paradigm as an outlaw.

I call this paradigm the Guild view of the law. Guilds used to be given exclusive rights to make shoes, slaughter cattle, bake bread, practice law and the like.

Those who were not in the guild who sought to perform one of these protected tasks could be prosecuted. Most guilds did not survive the Industrial Revolution.

Guilds were first undermined by imports and then overwhelmed as the feudal system collapsed.

But, within our profession the Guild paradigm has survived. Attorneys continue to believe that they have a right and duty to exclude non-attorneys from the marketplace. While usually couched in terms of a desire to protect consumers from the clutches of non-attorney charlatans, the fervor with which this eleemosynary view is pursued suggests that self-interest is the real motive.  

The Guild view just plain does not accurately describe the modern world. The flood of legal information now coming to consumers over the internet is but the most recent example of non- attorneys providing legal advice to consumers.

Open the Yellow Pages of your phone book and look under paralegal. Go to the bookstore and look at the self-help books. Finally, take a look at the literature about the upcoming “smart” computer programs that will provide custom tailored legal advice depending upon facts provided by consumers.

Many attorneys can recount stories of how consumers have been hurt by the poor advice they have received from non-attorneys. But, the other side of this issue is that most people today cannot afford an attorney. District attorneys rarely prosecute people for the unlawful practice of law.

The legislature every year responds to this issue by creating yet more statutes that legitimize what surely is providing legal advice by non-attorneys. We now have statutes that make lawful the activities of   “legal document assistants,” “unlawful detainer assistants,” “immigration consultants” and “tax preparers.”

The bottom line is that efforts to fence off consumers from seeking help from non-attorneys are not availing.

The New Paradigm — the Trademark Model

I propose that, instead of a Guild paradigm, our profession should instead use a Trademark paradigm. We should recognize that attorneys are but one provider of legal advice in a sea of competition from real estate agents, accountants, paralegals, bankers and the like.

If we were to see the law not as a Guild but instead as a Trademarked good, we would not waste our time in futile efforts to stop this or that perceived incursion by a competing provider. Instead, we would focus our attention on protecting and promoting our Trademark.

The attorney Trademark consists of our ability to provide assurances to the consumer of the quality of our service. We provide this assurance because we demand that those who are allowed to use the Trademark must pass the bar exam and subscribe to our Rules of Professional Conduct. In recent years we have enhanced our Trademark by developing legal specializations and by requiring continuing legal education.   

What Is To Be Done

Our profession has a number of competitive advantages. We are the only ones who can offer our clients the attorney client privilege. We have the exclusive franchise to appear in court for our clients. Because of our bar exam and discipline system, we have standards of competence and ethics that are unique in the market place.

These competitive advantages have stood the profession and the public in good stead for hundreds of years. We should not waste our time worrying about the efforts of others to fill in parts of the marketplace where we are priced out of providing service. Instead, we should seek to vigilantly police ourselves, which will protect our Trademark.

The public will be better served, the profession raised and the income of our membership increased if we focus less on protecting our turf and more on improving our Trademark.