Regulators of legal services often say that their most important job is to “protect the public.” If this statement is true, then we need to consider its implications for the future regulation of the legal profession. And that starts by posing a deceptively simple question:
What exactly do we mean by, “the public”?
When you hear that term, does it summon for you the image of a Fortune 500 GC? An assistant deputy minister in the government? An experienced construction company owner? Is that who you think of as “the public”? Probably not.
Instead, you think of ordinary people. Dads, cousins, and great-aunts; apartment dwellers, hourly-wage workers, and public-transit riders; working parents, mortgage payers, and pension hopefuls. “The public” means individuals with limited financial means and little knowledge of and experience with the law. When it comes to protecting “the public,” that’s who legal regulators think about, and rightly so.
But the corollary is that regulators are generally not that concerned with “protecting” the Fortune 500 GC, or the high-ranking ADM, or the sophisticated business owner. That’s not the “public” they’re worried about. And they devote relatively little attention to the lawyers who serve these types of clients because, rightly or wrongly, they believe:
(a) these clients are sufficiently sophisticated to take care of themselves when it comes to buying legal services; and
(b) the law firms that serve these clients are sufficiently reliable and high-quality that the regulator need only check on them occasionally.
Regulators have limited resources. They need to assess where those resources are best allocated in order to fulfill their mandate. So they allocate a small proportion to looking out for those members of “the public” who they believe can look out for themselves, and focus most of their time and effort trying to protect individuals who are inexperienced with and unsophisticated about legal services.
Now, there are really only two categories of suppliers to this part of the market: unauthorized providers, whom regulators normally investigate and prosecute (although that’s changing); and solo and small-firm lawyers, whom they regulate.
Most estimates place the number of solos and small-firm lawyers in the range of 65% to 75% of the legal profession (depending on how you define “small firm”). That means between a quarter and a third of all lawyers do not serve these types of clients.
But every lawyer is licensed and regulated as if they do.
Bar admission programs, licensing exams, ongoing competence expectations, and Codes of Professional Conduct are all premised on the provision of legal services to vulnerable individuals. Practice-based competence requirements and CLE programs offered by regulators invariably assume a solo or small-firm lawyer with vulnerable clients. But what about the 30% of the legal profession that doesn’t answer to these descriptions?
I think it’s time we recognized these facts and accepted their implications. Chief among the implications is this: In effect, we have two legal professions.
- serves vulnerable individuals,
- is based almost entirely in law firms with one or a small handful of lawyers,
- has a unique set of business and practice issues, and
- represents most of the risk that regulators are trying to reduce in order to “protect the public.”
The other profession:
- serves sophisticated individuals, companies, and organizations,
- is mostly based in businesses with anywhere from 10 to 1,000 lawyers,
- has a completely different set of business and practice issues, and
- represents relatively little risk from the regulator’s point of view.
None of this, by the way, is to say that lawyers who serve vulnerable clients are less competent than those who serve sophisticated clients. It’s to say that the first set of clients represent an entirely different type of risk than the second. But it also to recognize that solo and small-firm lawyers have fewer resources — time, people, and bandwidth — to manage their clients than other lawyers do, further exacerbating the risk these clients represent.
I think it’s time we stopped thinking of lawyers in terms of counting how many of them you can find in a single workplace — which is a lawyer-centric lens — and started thinking of them in terms of the types of clients they serve and the relative degree of risk associated with serving those clients, which is a client-centric and risk-based lens.
In other words, we should categorize members of the legal profession according to the vulnerability of the client base a lawyer serves and the risk represented by that vulnerability. And if we do that, then we should also think about licensing and regulating lawyers accordingly.
We should think about developing one licensing and regulatory system for lawyers (and other legal professionals) who always or almost always serve “the public” as regulators define it, and another for lawyers and legal professionals who never or rarely do. As it stands, we are effectively over-training, over-licensing, and over-regulating lawyers whose clients are in much less need of “public protection” than others are.
“One size fits all” licensing and regulation makes little sense for an increasingly specialized profession. Maybe it’s time we changed that.