Deregulation of Nonprofit Legal Practice — An ATJ Breakthrough?

Here is an idea that might be a breakthrough for access to justice, while enhancing the role and reputation of community based nonprofit legal aid programs.

How about almost complete deregulation of nonprofit legal practice.  True nonprofits (defined not only in terms of ownership, but also remuneration and remuneration to principals of contractors) would be almost completely deregulated.

That would mean that they could use nonlawyers however they judged appropriate — even in court — they could operate across state lines, and they could use technology as they saw fit.  They could market, and they could charge. They would, of course still be under obligations of competence, zealousness and confidentiality, once the relationship was established.

Previous rule changes and proposals have foreshadowed this approach, with, for example, the conflict checking requirements in limited services cases relaxed for nonprofits under Rule 6.5, and the proposal from the NY courts to the NY legislature to allow certain nonprofit legal programs to pilot experiments using nonlaywer “court advocates.”

The core idea is simply that nonprofit programs are not under the same competitive pressures to cut corners and ignore the interests of the clients which the ethical rules are designed to counter.

Thus the nonprofits become safe and appropriate laboratories for experimentation, and the ideas they could freely pioneer would help move a radical expansion of access forward.  This could only help the role and reputation of community-based legal aid.

It might be that some lawyers currently in small or solo practice would switch to a nonprofit model to take advantage of this freedom, and that might be all to the good.  This flexibility would surely be helpful to the incubator movement, both because most are set up as nonprofits, and because it would offer a model of sustainable organizations into which young lawyers could graduate.




About richardzorza

I am deeply involved in access to justice and the patient voice movement.
This entry was posted in Access to Justice Generally, Attorney-Client, Incubators, Legal Aid, Legal Ethics, Non-Lawyer Practice, Systematic Change, Technology. Bookmark the permalink.

3 Responses to Deregulation of Nonprofit Legal Practice — An ATJ Breakthrough?

  1. richardzorza says:

    Interestingly, this idea might be getting some traction, having been retweeted out by the National Association of Bar Executives, and the Non-Profits Daily.

  2. Kielbasa says:

    Nonprofit managers can budget higher salaries for themselves if they cut corners, and they do. I’m afraid that legal services managers would exploit the deregulation described here (e.g., replacing attorneys with non-attorneys) in order to increase their salaries.

    (I know you’ve considered this problem, as you mention remuneration to be a factor in determining whether someplace counts as a true nonprofit. But how exactly do you suggest setting and policing salaries? Is this model in place somewhere, by some funder or regulator? Seems like it would be complicated and controversial to implement, though awesome.)

    Take, for example, legal services in Massachusetts. For a while many programs there replaced entry-level, 40-50k staff attorney positions with AmeriCorps attorneys making around 20k. These attorneys served 10-month stints and weren’t trained or invested in the way staff attorneys were, so it probably hurt legal services in the long-term; they weren’t as diverse, because they basically needed to have family subsidies in order to survive in Mass on that wage; and they may have been a weaker set of candidates than could have been attracted at normal entry-level wages. Not to mention the moral compromise involved in replacing union labor with quasi-interns. As managers replaced staff attorneys with AmeriCorps, many gave themselves substantial raises. (Technically I guess they cajoled manager-friendly boards into giving the raises.)

    Another example: a legal services program that started taking fees from its clients’ disability awards around the same time as its management salaries ballooned.

    I agree that certain ethical constraints need not apply to us, but only ones that are totally irrelevant to our budget. Like, because we generally don’t get paid per client (and we generally have more clients than we even want) solicitation rules can be relaxed.

  3. Peter Fielding says:

    Not bad ; perhaps good in fact. Why not ? I ask myself. Most proposals which tilt at the statue quo have within them the likelihood of unforeseen consequences. And so in the spirit of experimentation , date gathering , analysis and commentary how can this thought become an action item and by whom ?? Peter Fielding

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