The ABA seems to have confused professionalism and paternalism (maternalism? “parentalism”?) this past week. Strangely, it stresses the protective, parental role in the setting where it is probably least needed –adopting rules concerning the Definition of the Practice of Law. And, it deemphasizes the protective role precisely where it is most appropriate — when the client is actually a minor.
As noted in the ABA Daily Journal list of actions taken at the 2003 Annual Meeting this week, Report No. 100 concerning the Definition of the Practice of Law (at p. 3, and 18) and Report No. 116B concerning Standards of Practice in Child Custody Cases (at 10) were both approved by the House of Delegates and are now official ABA policy.
The Child Custody proposal was discussed at length here in a posting on August 7, 2003. The new set of Standards is premised on the tautological doctrine that a child’s “lawyer remains a lawyer” no matter what role he or she plays in a custody case. The Standards place restrictions on the role of a lawyer never before required when the client is a child — based on a covert and confabulated ideology of children’s rights. This Editor continues to believe that the most important right of the child client is the right to be protected and guided by the mature judgment of his or her attorney. Yep, that’s paternalism and it’s OK even if not PC.
The issues concerning the Definition of the Practice of Law (and UPL) have been discussed in several postings, the last of which was on July 27, 2003, which contains links to many relevant sources.
The adopted resolution holds that “every jurisdiction adopt a definition of the practice of law” and that “each jurisdiction’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.”
- In addition, the resolution recommends that each jurisdiction “determine who may provide services” within the definition and under what circumstances. I continue to believe that this entire Definition Movement has more to do with protecting lawyer turf from competitors than protecting clients — and that is despite the inclusion in the Task Force’s Recommendation and Report (at the request of agencies such as the FTC and the DOJ, and of consumer advocates) that the definition be “based upon the potential harm and benefit to the public.”
Beyond the Report’s extensive discussion of creating new regulatory apparatus to oversee nonlawyer providers of legal services, I am concerned over the tone emphasized in the very last sentence of the March 2003 Task Force Report:
“Since protection of the public is a paramount goal of the legal profession and of the justice system it serves, the regulatory process should enforce accountability by all who provide services within the definition of the practice of law.” (emphasis added)
Focusing on the profession’s paternalist “protective” role is a sure recipe for drafting a definition of the practice of law that is overbroad, while unnecessarily limiting the types of nonlawyer providers that are permitted, and saddling them with overly burdensome entry barriers and oversight.
Self-appointed Protectors (of competent adults) often go too far. They tend to shelter their “wards” from outside interests and new opportunities and risks. Frequently, they think of themselves as “entitled” to special perks and rewards as recompense for their special heroic efforts.
In the Third Millennium, as opposed to the Middle Ages, it is about time that lawyers remember that they are “attorneys” for their clients — agents who serve their principals, assisting them, promoting their interests, performing as honest fiduciaries. “Protection” can certainly be a part of the attorney role, but it is often a small part.
In defining the practice of law and reaches of UPL, the legal profession needs to respect the right of the client (or potential client) to make his or her own cost-benefit analysis when choosing among options in the marketplace for legal services. In fact, the profession should actually help consumers make intelligent choices, instead of providing them with one-side propaganda and fear-mongering (such as this recent publication of the New York State Bar Association, entitled “The Attorney’s Role in Buying or Selling a House.”)