OPPORTUNISTS AND             )
SELF-DESCRIBED VICTIMS       )
                             )      StellaAwards.com
    Plaintiffs,              )
                             )      pleading before the
           vs.               )
                             )      Court Of Public Opinion
ANY AVAILABLE DEEP POCKETS   )
AND THE U.S. JUSTICE SYSTEM  )      begs the court to take notice of this
                             )
    Defendants.              )      Attempted Power Grab
_____________________________)

May it please the court:

Old Boys Club
by Randy Cassingham

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). 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.

Would that be the American Trial Lawyer Association, which screams that "things like the 'Stella Award' ... are part of a massive disinformation campaign designed to undermine Americans' confidence in our legal system"? Nope.

The American Bar Association 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.

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.

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 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 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!

The ABA proposal would exempt the time-honored practice of in pro per cases (representing yourself in court), but then only an attorney would be allowed to give advice on how best to proceed! What about, then, the police "advising" you of your "Miranda" rights? That's not addressed in the proposal, but it's likely that such court-ordered forms of "advice" could still be given -- but of course only in the exact form dictated by the court.

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, that would be very difficult to do. Thus, 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.

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 show, 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
  • "Very Expensive Suits" (Cost of lawsuits per U.S. citizen, adjusted for inflation), Fortune magazine, 3 March 2003
  • "Task Force on the Model Definition of the Practice of Law", American Bar Association, Draft Proposal of 18 September 2002

Submitted by:
StellaAwards.com, In Pro Per


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