Professionalism and the “Fear of Walmart”: Would You Like Some Bananas With That Tort?

In 1983, the American Bar Association adopted the ABA Model Rules that are the basis for most of the current codes of conduct in the United States. The drafting body was known as the Kutak Commission. The Kutak Commission proposed a rule permitting, but regulating, non-lawyer ownership of law practice entities. Proposed Model Rule 5.4 would have permitted a lawyer to be “employed by an organization in which a financial interest is held or managerial authority is exercised by a non-lawyer . . . but only if the terms of the relationship provide in writing that”:

(a) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship;

(b) Information relating to representation of a client is protected as required by Rule 1.6;

(c) The arrangement does not involve advertising or personal contact with prospective clients prohibited by Rule 7.2 or 7.3; and

(d) The arrangement does not result in charging a fee that violates Rule 1.5.

The Kutak Commission said over thirty years ago that “[t]he assumed equivalence between [nonlawyer ownership] and interference with the lawyer’s professional judgment is at best tenuous” and “[a]dherence to the traditional prohibitions has impeded development of new methods of providing legal services”[1]. The response to the Kutak Commission’s proposal generated a new phrase, “Fear of Sears”[2]:

One question and its answer derailed any possibility of the MDP and corporate investment proposal during the House of Delegates debate on the package of Kutak Commission proposals; “Does this mean Sears can open a law firm?'” Geoffrey Hazard, Reporter for the Commission said “Yes,” and the debate ended with a resounding defeat of the proposal. The “fear of Sears,” as it has come to be called, conjured images of major retailers selling not only insurance and financial advice through in-store affiliates, but legal services. The attractive possthility that ordinary Americans might he able to obtain simple legal services quickly and easily was of no matter. …

In a striking parallel, the first statement made in Convocation in February 2014 in response to the Report of the ABS Working Group was virtually identical, other than referring to Walmart rather than Sears. “Fear of Walmart” may be the new “Fear of Sears”. A respected life bencher with 50 years in practice said in Convocation[3]:

And then, by the same token, I could put a sign out to say today we’ll do two wills for the price of one. Come to us because we’re selling bananas.

… My view is the moment we permit our profession to go into the Walmarts or the Best Buy stores or any of the big box places, somehow it loses some of our professionalism.

This contrast between “professionalism” and the provision of legal services in a Sears or a Walmart is obviously emotionally evocative. Many lawyers clearly are offended by the very idea. But what exactly is in issue when professionalism is said to be put at risk is not so clear. One academic has said[4]:

… “professionalism” is a feel-good term, but a term without content. We may think we can recognize good professional behavior when we see it, but the terms “professional” and “professionalism” tend to mean what a given speaker wants them to mean. Too often, people who invoke professionalism use it to stop analysis rather than further it. In short, professionalism tends to be a rallying cry, not a concept.

The claim that professionalism would be put at risk were Sears or Walmart to offer legal services could mean a number of different things. The underlying concern could be that:

• client interests such as protection of “professional values” confidentiality, avoidance of conflicts, independence of legal advice, competent provision of services and zealous representation could be compromised by business interests and culture;
• properly serving clients requires a “professional environment” on the theory that the trappings of professionalism support client confidence in the services provided;
• existing legal practices might not effectively compete with a Sears or a Walmart and so allowing such competition threatens “professional self-interest”;
• allowing a Sears or a Walmart to provide legal services devalues the status and self-worth of lawyers as professionals by not maintaining “professional dignity”; and
• allowing any legal services to be provided other than by fully independent lawyers will lead to the “collapse of the profession”.

The issue of non-lawyer ownership interests in legal practices is not the only context in which the “idiom of professionalism”[5] has been used in debate about legal ethics over the years. While it would seem strange to us now in Canada, it was once argued that in-house lawyers should not be allowed to give legal advice to their employers because their independence of judgment would be comprised by their employment[6].

When automobile clubs and trade unions offered group legal service plans in order to take advantage of group purchasing power, lawyers attacked those plans as compromising professional independence[7].

For many years, lawyers provided legal services priced on the basis of fee tariffs which were sought to be justified on the basis that price competition would compromise professionalism[8].

Advertising by lawyers was similarly long prohibited[9]. The following passage from a U.S. judgment striking down a categorical ban on advertising by lawyers is instructive. The Court observed that the state bar placed:

particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney’s sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession’s service orientation, and irreparably damage the delicate balance between the lawyer’s need to earn and his obligation selflessly to serve. Advertising is also said to erode the client’s trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the lawyer is acting out of a commitment to the client’s welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.

The common thread of these historical examples is that lawyers have sought to avoid bing subject to various market forces on the basis that market exposure compromises “professionalism”. Lawyers have opposed the employment of in-house lawyers, the provision of group and union legal plans, advertising and price-competition all on the basis that professionalism/professional independence would be compromised.

But as can easily be seen, each of these positions is consistent with self-interest disguised as altruism. And in retrospect, the apocalyptic claims made to avoid or reduce market competition have not proven to be correct. The sky has not fallen. Nor has the sky-fallen in other jurisdictions where non-lawyer investment in legal practices has been permitted.

How then to think about the claim that “Walmart law” threatens professionalism? The balance of this column sketches out responses that question[10].

It is important to carefully examine whether “Walmart legal clients” would be at risk of compromised legal services and loss of the “professional values” to which they are entitled such as protection of confidentiality, commitment, candour and competence and freedom from conflicts. I consider this the truly central question. While some simply state, as an article of faith, that the provision of legal services and professional values will inevitably be compromised, this is far from obvious to me. As discussed elsewhere, the actual evidence appears to be to the contrary. No doubt some approaches will carry undue risk. But it seems very unlikely that only the traditional lawyer-owned and controlled practices can possibly provide proper legal services. Being thoughtful about new approaches to legal regulation seems to me to likely be the way to approach the very proper issue of protection of “professional values”. If this is what professionalism is really about then I’m all in favour.

It is difficult to imagine that protecting the “professional environment” is really at issue so far as “Walmart legal clients” are concerned. The point of allowing “Walmart law” is to allow greater consumer choice. There is good evidence that many people with legal problems do not obtain legal services at all let alone in a “professional environment”. Providing new ways of accessing and delivering legal services is intended to address these unserved legal needs. It is difficult, at best, to accept that these potential clients are better off receiving no legal services at all than having to endure a retail environment. And while lawyers may lose some clients, presumably clients will choose the environment that suits them best.

“Professional self-interest” of course causes lawyers to fear loss of business to new types of legal service providers. The first response to this concern is it is not a legitimate justification for law society regulation. A second response is that lawyers must not think much of their services if they think that their clients will so easily be lost. A further response is that competition from new types of legal service providers will cause lawyers to innovate in response to new competition. There is also a claim from some that these new types of legal service providers will engage in predatory pricing, drive all lawyers out of the market and then jack up prices. However, there is no evidence for this claim and no economic theory or analysis cited in support.

Fear of loss of “professional dignity” may well underlie, at least in part, the reaction of some lawyers to “Walmart law”. For lawyers who have worked hard to well and ethically serve their clients and develop their professional reputations, the title of “lawyer” is hard earned and jealously protected. But it is difficult to see any substantial basis for the fear of loss of professional status nor that protecting professional status could be a proper reason to continue to prohibit new ways of providing legal services.

As for “collapse of the profession”, there is no evidence for any such claim from the countries where non-lawyer ownership has been permitted. Nor is there any serious explanation for how this might actually occur[11]. Not being certain how things may evolve is no basis for prohibiting all change especially when problems that may arise very likely can be addressed as they arise.

The point of this column is not so much to argue each of these points but rather to highlight that claims of endangered professionalism are quite imprecise. The invocation of professionalism tends “to stop analysis rather than further it, … [it is] a rallying cry, not a concept”.

This is not to suggest that lawyers making such claims necessarily do so disingenuously or as mere advocacy. Rather care is required in discussion so that the true basis of any claim is made clear, the rationale and evidence for the claim is elaborated and as such can be fairly addressed.

Merely asserting that new ways of providing legal services are inconsistent with professionalism is to call on emotional and intuitive responses rather than to genuinely advance the discussion. A deeper discussion that genuinely considers the advantages and risks of liberalization is required.

[1] Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75

[2] James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change, 2013 at p. 165

[3] Law Society of Upper Canada, Transcript of Convocation, February 27, 2014, pp. 132 to 133

[4] Thomas D. Morgan, Calling Law a “Profession” Only Confuses Thinking About the Challenges Lawyers Face, 2011, 9 University of St. Thomas Law Journal 542

[5] Ted Schneyer uses this phrase in his article Professionalism as Pathology

[6] Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 94 et seq

[7] Stephen Gillers, How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession, 2013, 40 Pepperdine Law Review 365 at p. 377 et seq

Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 96 et seq

[8] Waterloo Law Association et al. v. Attorney-General of Canada, (1986) 58 OR (2d) 275

Stephen Gillers, How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession, 2013, 40 Pepperdine Law Review 365 at p. 380 et seq

Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 99 et seq

[9] Stephen Gillers, How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession, 2013, 40 Pepperdine Law Review 365 at p. 383 et seq

Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 101 et seq

[10] Itis not just the practice of law in a Walmart or a Best Buy that is in issue. Rather “Walmart law” is a useful label for non-traditional provision of legal services. “Walmart fear” is the fear of that change.

[11] Claims have been made that the United States provides an example of problems with non-lawyer ownership of legal practices. This is a peculiar claim as the United States does not allow non-lawyer ownership and has the harshest approach to unauthorized practice. What is true is that some states have entirely deregulated some areas of legal service such as residential real estate. That is quite different than allowing non-lawyer investment in legal practices subject to appropriate rules governing conflicts, competence, committment, candour and the like.