California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JUNE 1999
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OPINION

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Walls come tumblin' down
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By DAVID M.M. BELL
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Horns are blowing outside the walls of the legal monopoly in California. The walls, already riddled with large holes, may soon come down completely.

Business & Professions Code 6125 states that "no person shall practice law in California unless the person is an active member of the State Bar," while 6126 makes it a misdemeanor to practice law without being an active member of the State Bar. These sections, enacted in 1939, create and protect the legal monopoly in California. Yet, as members are aware, legal services in California today are provided by laypersons, out-of-state attorneys and non-attorney-controlled corporations on a regular basis. Greater inroads into the legal monopoly are being made every day.

Increasingly, it appears that the issue is not whether the legal monopoly will fall, but when and how. Over time, the monopoly's walls have been undermined to the extent that they are no longer secure against expected future assault. The following factors, some old, some new, will result in ever-increasing pressure on the legal monopoly:

David M.M. Bell The large and continuing unmet need for legal services in California, which the legal profession has been unwilling and/or unable to respond to adequately.

The explosion of independent legal technicians and legal document assistants who are not legally permitted to "practice law" but, under recent B&P Code 6400, are permitted to provide "self-help" legal services to individuals representing themselves in legal matters.

The paucity of unauthorized practice of law prosecutions in California which has emboldened those not licensed, allowing them to practice law without meaningful risk of reprisal and providing them, in an adverse possession sense, with a colorable claim to a piece of the legal monopoly.

The hostility of the bar membership to the State Bar which, unfairly or not, has sent the message to the public and legislature that the lawyers of this state, while favoring retention of their legal monopoly, are interested in less oversight and desire a weaker State Bar with softer prosecution and regulation of lawyers (e.g., no MCLE).

The declining percentage of lawyers in the Cali-fornia legislature (currently 22%), resulting in a non-lawyer majority that empathizes with citizens who cannot find or afford legal assistance.

The interest of powerful, non-lawyer-controlled corporations, such as accounting firms, to enter the lucrative California market to offer multidisciplinary services, including legal services provided by in-house lawyers, to corporate clients.

The interest of large, multistate law firms in California to have members of their firms, not licensed in California, provide direct representation to firm clients in California.

In addition to B&P Code 6400, mentioned above, the legislature has recently promulgated CCP 1282.4, which permits out-of-state attorneys to represent clients in arbitration proceedings in California, and has introduced a bill this session to regulate the "paralegal profession" (AB 1275 [Rod Pacheco]).

The membership faces a deep schism if and when the legal monopoly falls. Large firm practitioners will be pleased because they and their firms will become more efficient and competitive. They will be able to use their most knowledgeable firm members, even if not licensed in California, on California matters. Ancillary services will become much easier to provide. Solo and small firm practitioners, on the other hand, will be unhappy because they will suffer direct competition from independent legal technicians and paralegals.

The State Bar, as always, will be caught in the middle, receiving conflicting signals as it attempts to further the interests of its diverse membership. Given its current weakened state, it may not even have the ability to play a meaningful role in the debate. Can you hear the horns blowing?

David M.M. Bell practices with Langford & Bell in Walnut Creek, focusing on attorney conduct and legal malpractice. He may be reached at dmbell@dnai.com.