We need more lawyers!

Licensed paraprofessionals are great, but they won't be enough to make the legal sector functional. For true legal reform, lawyers have to raise their game and meet their responsibilities.

Believe me, I didn’t think I’d ever write a post with this title. For about as long as I’ve been a member of the legal profession (coming up on 30 years now), I’ve thought (and written and said out loud) that as a group, lawyers often take themselves too seriously, consider themselves too exceptional, and place their professional interests ahead of what the public needs. (It’s amazing they keep giving me work, to be honest.)

But I’ve also come to conclude that to help our society through all its current crises, we need more lawyers than we have today. We also need more highly skilled, more widely accessible, and more radically reformist lawyers. Across the board, we need the legal profession to step up and give society the absolute best it can give. That’s not happening — and part of the reason is that we’re not going about reform the right way.

These reflections were prompted by several conversations I’ve had lately with policymakers, activists, and academics about how to reform legal regulation. After decades when almost no progress was made on this front, the last several years have seen a plethora of initiatives in places like Arizona, Texas, Utah, California, Minnesota, British Columbia, and elsewhere. Some of these efforts have made great strides, while others have been cut down prematurely or came to naught.

The unifying drive behind all these efforts has been a desire to make legal services more available to more people, a cause usually (although I think misleadingly) described as “access to justice.” The bulk of this work has involved campaigns to authorize new classes of para-professional legal providers, with smaller scopes of practice geared towards ground-level justice needs that lawyers aren’t meeting.

I’ve strongly supported these efforts in the past, and I still think legal para-professionals will be helpful to many people and essential to a few. But what I’m gathering from my recent conversations is that this is about as far as the current wave of regulatory reform seems interested in going (or believes it can realistically go). I think that’s a problem.

We’re spending a lot of time, energy, and political capital to create these low-cost lawyer alternatives. But I fear this will prove to be only a temporary fix to the problem. One of my growing concerns is that the rapidly rising capabilities of Generative AI will swamp the limited scope of practice that legal regulators have forced paraprofessionals to accept. Litigation form preparation is already within AI’s grasp, courthouse chatbots dispensing aid could soon be flourishing, and fleets of GPTs giving basic legal advice (authorized or not) is only a matter of time. More about all this in a future post.

But what bothers me more, and what I want to focus on here, is that legal regulation reform appears to be giving up on lawyers.

I come away from conversations with some reformers sensing that they view lawyers as almost all of the access problem and almost none of the solution. They see lawyers as obstacles to progress who use their control of political and regulatory systems to block new market offerings and keep their own fiefdoms profitably protected. They consider lawyers either blithely ignorant about the true state of legal access, or (at worst) actively hostile to any attempts to fix it.

Let’s be clear: Reformers are not wrong to feel this way. All the paraprofessional reforms proposed over the last 10-15 years have faced fierce opposition and absurd vilification from both the practicing bar and factions of regulatory bodies controlled by lawyers. These lawyers either tightly restricted paraprofessionals’ scope of practice or shot down the efforts altogether.

Reformers have every reason to cast the legal profession in the villain’s role when it comes to legal sector improvement. But what I’d like them to recognize is that this isn’t helpful. We don’t need villains. We don’t need scapegoats. What we need are solutions. And I don’t see a solution to everything that ails the legal sector that doesn’t involve lawyers in a fundamental way.

We know that lawyers only meet about 15% of the total population of society’s legal needs at any time. But do we really think paraprofessionals — no matter how highly I respect them and their work — can meet most or all of the other 85%? Do we think Generative AI can meet most or all of this unmet need, and is that really the direction we want to go? I’m as bullish on legal AI’s potential as the next person, but I am not remotely ready to cede this entire sector to a machine whose workings no one truly understands.

Those of us who want to see a flourishing legal sector, one that provides timely and affordable solutions to people’s problems as a matter of course, can’t give up on lawyers. And we can’t allow lawyers to give up either. They can’t excuse themselves from the conversation, happy to keep on serving their lucrative little patch of the market while leaving the needs of the greater world to others. That’s not acceptable.

Legal sector reform — a term I intend to use from now on, because it encompasses legal regulation reform but goes much farther — requires the legal profession to finally get serious about itself, about lawyers’ professional purpose, and about lawyers’ proper role in society. We don’t need less from the legal profession. We need one hell of a lot more.

I want to see lawyers serve a much higher percentage of legal needs. Fifteen percent is an embarrassment, but 25% isn’t much better, nor is even 40%. Why can’t lawyers serve most of the legal market? The standard answers are, “They’re too expensive” or “They’ll only do the most lucrative work.”

Why do we consider these satisfactory responses? Why have we accepted the profession’s unspoken consensus that lawyers are a luxury good, a costly means to achieve straightforward legal goals? Why have we incorporated into our thinking the assumption that lawyers can’t do more than serve the tiny number of clients who can pay the most? Why did we let them off the hook like that?

Lawyers have an imperative role to play in legal sector reform — whether reformers like it or not, and whether lawyers like it or not. There are three ways in particular in which that role could be fulfilled:

1. More Lawyers. Tear down the barriers to professional entry, starting with the ludicrous cost of legal education that blocks people of limited economic means. Accepting that universities can’t be forced to lower tuition, remove their monopoly by making law degrees an optional element of lawyer licensing. Do away with admission exams that uselessly winnow the field even further. Throw wide the doors to the legal profession.

It’s time we created a culture of abundance when it comes to lawyer admission. A deeper supply of lawyers will decrease scarcity and help reduce the price of lawyers’ services (which is the #1 reason why the profession favours a low rate of bar admission). More smart, caring, and dedicated people in the law will provide more help and do us credit as a profession. We need more lawyers! We’ll also need:

2. Better Lawyers. Upgrade the capacity of lawyers to provide more and higher-value services earlier in their careers. Create frameworks for entry-point lawyer competence and redesign the licensure system accordingly, so that aspiring lawyers can rapidly learn the knowledge and skills they need, develop them, and demonstrate them to a public-interest-oriented admissions agency. Better lawyers sooner can deliver more justice.

But don’t stop there. The same wave of Generative AI that’s heading for paraprofessionals is coming for the legal profession too. Fewer technical skills will be important, so human skills will be lawyers’ most valuable asset. Create a lawyer formation culture that guides lawyers to become good advisors, good advocates, and good accompanying professionals. And while we’re at it, let’s create more:

3. Reformist Lawyers. As I wrote at Slaw last week, responsibility for our legal system’s breakdown ultimately lies with governments, which have allowed the public infrastructure of justice to deteriorate and have failed to address people’s disempowerment in seeking justice. But lawyers are the guardians and overseers of legal institutions, and their duty and mission should be to reverse the decay immediately.

Lawyers should press for regulatory governance reform, push courts and judges to remove their costly and unnecessary procedural barriers, and demand that elected representatives deliver better justice infrastructure (or else lend their support to political challengers who will). Lawyers should be on the front lines of justice reform, not watching from a distance, or (much worse) manning the barricades in defence.

Lawyers alone aren’t the solution to any of the legal sector’s problems. But that doesn’t mean we should write them off, or consign them to their present role as antagonists in the campaign for a better legal world. We can’t have a functioning legal sector unless lawyers step up and accept the responsibility that their position (and all its attendant benefits) demands they fulfill.

The legal system can’t route around lawyers. We can’t build a just and effective legal sector without their active involvement, and preferably their leadership. We need more lawyers. We need more from lawyers. Will we require it from them? And will they accept?