I frankly wasn't sure whether to take seriously W. Clark Durant III's proposal for allowing nonlawyers to provide legal services.
After all, Durant, a conservative Republican named by Ronald Reagan to head the Legal Services Corporation, supported the president's call for zero funding for the agency that is supposed to oversee legal services to the poor. Was his call for "opening up" the legal profession just a way of ducking responsibility?
After a long talk with the 38-year-old Detroiter, I'm convinced he means it.
"When I came to the Legal Services Corporation, I made a commitment that my whole thrust would be to find ways to maximize access to justice," he said during a trip to Washington. "The problem is not a shortage of lawyers. The problem is that the organized bar has built a dam across the river, and now it is complaining about the shortage of water in the fields." Durant would remove the dam by allowing nonlawyers to handle much of the routine work that now must be done, usually at greater expense, by lawyers.
But would that really increase "access to justice," or would it merely expose the poor to third-rate counsel?
The real choice for the poor, he says, is not between superlatively qualified lawyers and marginal ones. It is between some assistance and none at all.
As for the contention that advice from nonlawyers might not always be the best, Durant has two answers. The first is that nonlawyer specialists in, say, landlord-tenant disputes might be of more practical help than a fully experienced patent attorney. For the second, he returns to his analogy of the dammed river. "It's a matter of no water, or letting the water flow, knowing that some of it is not 100 percent pure. At what price do you build your dam and keep the crops from getting any water at all?"
The key reason for the dam, he insists, is to protect the lawyers' monopoly. He offers three of his pet examples:
Rose Palmer of Pittsburgh was doing an excellent job helping women in divorce proceedings, spouse abuse cases and so on. She wound up with a UPL (unauthorized practice of law) case against her.
Rosemary Furman, a former legal secretary and court stenographer in Florida, was held in contempt of court and threatened with jail for helping clients fill out legal forms for such noncontroversial procedures as wills, name changes and uncontested divorces.
Peggy Muse, described by one reporter as "the country's most successful independent paralegal," was threatened by the Oregon State Bar and wound up signing an agreement not to accompany clients to court, draft documents for them or give them legal advice.
"Most of these UPL cases are filed by the bar," Durant says. "It's not the clients who are complaining but the competition. The first thing I would do is eliminate the UPL statutes -- just eliminate 'em. The greatest burden of so many of the licensing rules is really on the middle and lower classes, because they restrict competition, raise prices and hamper the ability to create a more participatory market place with more consumer choices."
He would not eliminate law school or bar examinations. "If a person wanted to take a bar exam and hold himself out as a specialist, I'd say more power to him. But if someone is demonstrating the ability to deliver a product in the ordinary course of things, and that person has not gone to law school, I would not stop them. I would encourage more such people to get into the business. You shouldn't have to spend three years in law school at a cost of many thousands of dollars and then pass a comprehensive bar examination if all you want to do is handle landlord-tenant disputes or domestic disputes.
No doubt. Still, isn't there something odd about the head of legal services calling not for the best lawyers to serve the poor but for a floodtide of non lawyers? Isn't that just another show of contempt for poor people?
Not at all, Durant insists. "The poor and everybody else will be better off with a multiplicity of people delivering these services. I'm trying to look at this not as a Republican, not as a conservative, but as someone interested in solving the problem of access to justice."