Legal ethics

Libertarians + Access to Justice = Change?

First of all, I know I am long overdue for new content here. There have been quite a few things that caught my eye that I wanted to write about, but there were so many to choose from it got into a weird, overwhelming, and highly unusual sort of “writer’s block” situation.

Second, some anniversaries came and went since my last post, including celebrating the first anniversary of the founding of my solo practice at Faughnan Law, PLLC.

Third, that should be enough to overcome the block … right? Write.

Here comes the actual substantive ethics content…

An interesting new white paper was brought to my attention by a local lawyer who has been discussed at this blog in the past. You can go read the white paper, “The World Needs More Lawyers” at this link.

What makes it interesting is that it is a different voice from the usual voices that clamor for changes to how the practice of law is regulated and, particularly, efforts to make the multijurisdictional practice of law easier to accomplish. This paper is the work of the Regulatory Transparency Project, which is itself a project of The Federalist Society.

Now, typically, I would say that the Venn diagram comparing the interests of Libertarians and the interests of those who believe that legal services are unaffordable for regular people consists of just two separate circles. And maybe I would be joking about that … or maybe not.

But I definitely can’t say that any longer because the second sentence of the Executive Summary of this paper plainly states: “Several licensing barriers unnecessarily contribute to the high cost of legal services, which inhibit access to justice for ordinary Americans.”

Now, I’m not saying that I agree with everything laid out by the Regulatory Transparency Project in the paper (particularly the notion that CLE requirements should be abolished), but I do agree with their exhortation to states to strongly consider adopting the APRL proposal for replacing RPC 5.5. You all know, of course, that I have written about that merits of that proposal before. What you might not fully know is that the notion of me and folks from The Federalist Society agreeing on anything as being a good idea is a startling development.

As startling as that is, it is entirely true in this instance because I wholeheartedly agree with the following excerpt:

The good news is that there is a model rule that would both clarify that remote work is lawful and enable competent attorneys to engage in multijurisdictional practice without seeking admittance to numerous state bars. The Association of Professional Responsibility Lawyers has presented a Proposed Rule revising the American Bar Association Model Rule 5.5 governing multi-jurisdictional practice of law. Regardless of whether the ABA endorses the rule, state policy makers should consider adopting [it.]

S. Weissmann et al., “The World Needs More Lawyers,” released by the Regulatory Transparency Project of the Federalist Society, September 28, 2023

I think, at this point, exhorting for consideration of that rule proposal by states is a very important thing to do regardless of whether the ABA ever gets around to taking any action. The most obvious reason this is true is because ultimately the states are going to have to be the places where such a rule gets adopted and actual change is made. Even if the ABA adopts a new Model Rule 5.5, other than a couple of places where that automatically would become law in a jurisdiction (e.g., Delaware), it won’t move the needle unless separately adopted by states.

An additional reason that it seems clear that the time for definitive ABA action has passed and that the focus needs to shift to lobbying states directly is that I’ve been on the ABA Working Group (as an APRL liaison) that has been looking at revisions to Model Rule 5.5 for well more than a year now and I have no idea what, if any, action is ever going to come out of that work. (If recent events are any indication, either nothing at all is going on or I’ve been dropped from the group.)

Thus, for what my voice is worth, I would lend it to the chorus by saying that people should start looking to specific states and asking them to adopt the APRL proposal. I recognize (and have spoken openly before) that the first state to do so would seem to be engaging in a selfless act as the rule would not benefit any of the lawyers already licensed in that state but the first state to do so will greatly benefit the consumers of legal services in their state by expanding the population of available lawyers who can ethically meet their legal needs.

Whether the kind of arguments set forth in this paper, and the fact of who is making them, might have some success in moving the needle in places like Tennessee where right-wing politics remains ascendant remains to be seen.

(P.S. I did notice that the paper begins by using a quote from Lionel Hutz of The Simpsons to advocate for the need for more lawyers. Accordingly, I do understand that the whole piece could be satire I guess, but I’m counting on the much more likely explanation that someone involved simply misunderstood that joke.)

(P.P.S. I also noticed that the paper discusses the problematic case here in Tennessee that got a good bit of publicity where a lawyer already licensed in New York was initially denied admission in Tennessee. I also wrote a little about that in the past.)