Carolyn Elefant of My Shingle has an interesting post about the Illinois Bar Assocation's position on legal-document preparers: "If We Can't Beat Them, Let's Compete With Them!"
In Carolyn's view, rather than trying to shut down the legal-document preparers altogether, lawyers should try to "persuade clients that the value that attorneys can add to living wills and bankruptcy petitions and uncontested divorces justify the added cost." In her post, Carolyn offers some ways that lawyers could do a better job of competing with these services.
It's a very interesting post, but something bothers me. Carolyn admits that shoddy legal work performed by document-preparation services is a "significant problem." She also says that the FTC has fined We The People for "deceptive advertising practices." That's enough for me to say "shut 'em down." I've had clients in my own practice come to me with legal problems caused by document-preparation (and similar) services--in particular, one very large and costly one that couldn't be undone. Arbitration clauses and forum-selection clauses make some of these companies very hard to sue. It's often much harder than suing a lawyer. (My personal experience, by the way, did not involve We The People.)
In summary, Carolyn's argument is persuasive, but it didn't change my mind. If legal-document preparers are deceiving and misleading the public, which I think many of them are, it's reason enough for me to think that it's often a good thing when lawyers have a monopoly on legal services.
ha! yeah, people can only be trusted to make good decisions when it involves operating systems. ROFL.
reading the post, it sounded halfway plausible until i recalled 70% of the experiences i've had with the monopolists you defend -- pleadings filed with the wrong court, deadlines missed, promises broken, invoices never sent, retainers waylaid, action not taken, bluster by the pound, prolonged litigation, interested advice, shoddy work...
no, the market can decide these things much better than the legal guild which, coincidentally, also happens to form the farm team for the bench. judges are far from biased in these matters.
competition breeds improvement. have to look at the big picture before seeing failed services as only a bad. failed services are part of a thriving, improving market. trying to legislate them out of existence leads to many unintended (and apparently conveniently overlooked) consequences. are customers supposed to pretend that guilds don't raise prices while protecting and encouraging mediocrity, and worse? the laws of economics don't apply to lawyers?
evan, consider me a customer looking for more options. the legal guild has failed us -- far from the rosy picture i see painted above. arguments from lawyers in support of the guild ring hollow to those who've paid for it from the other side. i want options and competition. the monopoly has protected nothing but hourly rates.
Posted by: charley hardman | February 24, 2005 at 10:37 AM
charley: Yes, yours is another voice I must consider. However, you should note that I did mention suing lawyers--so I'm necessarily painting a rosy picture.
You would agree, would you not, that it's not acceptable to mislead or deceive--whether it's lawyers or legal-documents preparers. So working from that premise, how do you propose to weed out the bad ones?
Posted by: Evan | February 24, 2005 at 10:49 AM
yes... suing lawyers [drum roll] using lawyers! oh, it's a nightmare. better to sue using whoever you think would be best to do it (certified or not). people can be trusted remarkably to act in their best interest when researching and making decisions. and if they fail in that responsibility, who are we to save them from their folly?
evan, you know i'm a fan, but i should probably mention that before continuing, in case somebody else is reading this.
i'm actually baffled that you would ask, "how do you propose to weed out the bad ones?" how do we weed out bad lawn services, microbreweries whose beer we don't like, bad car dealers, etc? we stop buying their products. we stop using their services. we tell other people. we publicize. we allow the market to operate! and if defrauded, we should sue.
markets are such a beautiful and neglected thing. they should never be confused or compared with perfection, though they are the closest thing we have. it's only when somebody isolates and highlights a narrow slice of markets, and paints for us a rosy picture elsewhere, that we lose faith in what we know through regular, direct experience to be valid. all attempts to put a legislative shine (i.e., use force, in straight language, ala george washington) on something so inherently self correcting is doomed to fail. F. A. hayek called the assumption that we may improve on individual action through force the fatal conceit. i cannot improve on that accuracy. mutual liberty solves more problems than we give it credit for.
Posted by: charley hardman | February 24, 2005 at 11:18 AM
You write, "people can be trusted remarkably to act in their best interest when researching and making decisions. and if they fail in that responsibility, who are we to save them from their folly?"
I agree generally with this libertarian principle, yet I must admit, it conflicts with the work I do as a consumer lawyer. My thoughts are still developing, shall we say, and when they're fully developed, I'd be more likely to share them at Legal Underground, which is probably where I should have posted this in the first place.
As to your answer to my question, "How do we weed out the bad ones"--well, you really hit that softball out of the park!
Posted by: Evan | February 24, 2005 at 11:48 AM
you're too much, man. i'm just waiting for your first book, after that Types of Lawyers #15 post today. save me an autographed copy. just keeps getting better.
and don't feel bad; the work most libertarians do conflict with their principles too. heh heh. actually, courts (especially common/tort law) are the branch of government that libertarians are generally most approving of in theory, so i'll bet you're pretty far clear of any recrimination from that crowd -- not that you were losing any sleep over it.
Posted by: charley hardman | February 24, 2005 at 06:00 PM
While there are many problems with using a free-market theory to justify allowing document preparers to operate, I'll just point out two.
The idea that people are perfectly capable of making well-reasoned decision, thank you very much, is flawed. The assumption is that people have the resources (including time, money, and expertise) to do the research required to make that well-reasoned decision.
Working with a Legal Aid Service, I have found that many poor men and women who find themselves in a divorce have mental health problems or language problems. I find it difficult to believe that very many of these people would do that research (or do it well, at least) or would be able to use it effectively if they did. I won't even get into the problems that could arise once the mentally ill client gets to the document preparer's office.
I will get into another problem that could arise by way of illustrating the central problem with alowing document prepares to practice: things will get missed. I have seen situations where men from other cultures completely dominate their wives (who often also have language problems). It is not hard to imagine a husband of this sort dragging his wife to the document preparer to have a simple petition for dissolution drafted, filing it, and insisting they both continue pro se. The wife's rights would be almost completely unprotected. These rights range from asset division and maintainence to orders of protection.
A lawyer who had this couple in his office would have a conflict of interest. He would then be able to send the wife off to another lawyer who would be able to protect her interests. If he did not, he could be sued. What about the document preparer? Will she be subject to the same conflict of interest rules? Will document preparers have to refuse clients whose cases are not perfectly simple?
Too much will fall through the cracks with document preparers as a part of the legal system. We do need to make courts more accessible, but this is not the the way to do it.
I am a young lawyer, admitted here in Illinois in November. For the past few years, I have been told repeatedly that this is a profession and a business, but a profession first. Lawyers, green and veteran, who find themselves tempted to go along with the document preparer regime would do well to think seriously about their profession and its obligations. It is easy to look at this as a question of what we can afford to give away or what will placate the lawyer bashers.
That is the wrong way to look at it. As lawyers we have a duty to protect the quality of the legal system, flawed though it may be. A document preparation industry would increase drastically the amount of slipshod legal work out there and would allow more people to fall through the cracks than already do. We have a duty to oppose that.
Posted by: Rich Rius | February 28, 2005 at 10:35 PM