Why Walmart Doesn’t Practice Law.

Posted By Cliff Tuttle | March 22, 2010

An opinion piece appeared in the Forum Section of the Post Gazette on Sunday March 21, 2010 asking the question why we can’t purchase legal services at Walmart.  The answer, according to  Gillian Hadfield, a Professor of Law and Economics at the University of Southern California who is visiting at Harvard, is that greedy lawyers are controlling the market and suing non-lawyers who dare to offer moderately priced competition.

She says that non-lawyers are providing legal services everywhere else in the world and that studies show that the work product is better.

Bunk!

First off, there are lots of laymen poaching on legal practice areas with official blessing.  Non lawyers act as advocates in unemployment compensation hearings these days. The Pennsylvania legislature passed legislation to specifically authorize such activities.  Non-lawyer advocates also represent homeowners in real estate tax assessment appeals. More residential real estate closings are handled by non-lawyers than lawyers.  Other non-lawyers, such as real estate agents, prepare agreements of sale, deeds and other documents. There are companies who will help you plan your estate, settle with your creditors, mediate disputes, set up a corporation and who knows what else.

I have observed many such non-lawyer professionals.  As long as their activities are confined to predefined narrow limits, they often perform reasonably well. However, often enough, they find themselves in deep waters without being aware that they are out of their depth.  This can happen during seemingly simple tasks, like preparing a deed.  While many deeds are simple exercises in copying prior instruments, there are times when a thorough understanding of specialized practice areas, even arcane ones, is required.

The dividing line that separates legal tasks that can be performed successfully by persons with limited training and without supervision of a lawyer from those that cannot is hard to define, since it varies with each case.  Even if some supervisory power could state “go this far and no farther”, who enforces the rule?

And that is the crux of the matter.  You cannot adequately represent a party who is facing imminent litigation unless you have the power to litigate.  Too often such organizations stand by helplessly while creditors file complaints, take default judgments, issue writs of execution and conduct sheriff’s sales.  That is not properly representing the client, even if the client doesn’t understand what is happening.

The idea that it is necessary to permit non-lawyers to compete with lawyers in order to drive down fees is ludicrous.  For more than a generation, law schools have been flooding the market with new lawyers. In fact, there is a respectable body of opinion that the lawyer glut has lead to “over-lawyering”, whereby suits that should never have been brought  clog up the dockets because all those surplus lawyers have to do something. I do not subscribe to this idea, but I do believe that there is a gigantic lawyer surplus which has kept fees low.

The law of supply and demand is alive and well in law practice, as every lawyer who has hung out a shingle can attest.  Yes, there are still people giving up because they think they cannot afford a lawyer.  However, I have some good news for them.  There are lawyers around, good experienced ones, who will charge a reasonable flat fee and even let you pay in installments, perhaps with a credit card. I cannot imagine that encouraging persons of little training and professional qualifications to step in is going to improve the lot of the underrepresented.  On the contrary, it will surely bring them more problems.

I wouldn’t expect a Harvard Law prof. to know any of this.  She doesn’t hang out with too many Main Street lawyers, just Wall Street types and their social peers. Her theories can probably be applied very well to that crowd. But, then again, she probably doesn’t shop at Walmart too often either.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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