Why can&#39;t lawyers lower their fees to match unmet demand, rather than leaving legal practice? Benjamin Barton JD magna magna cum laude, 1996, University of Michigan. Glass Half Full: The Decline and Rebirth of the Legal Profession (2015). p. 49 Middle. Please see the last two sentences pinpointed by the red arrow. Why can't fees be lowered "enough on individualized, bespoke services to meet the unmet need at an aﬀordable price"? Why would lawyers "leave the practice altogether", "[b]efore these lawyers lower their prices further they will"?
I'll answer out of order for a more logical presentation. Why would lawyers "leave the practice altogether", "[b]efore these lawyers lower their prices further they will"? Only about 30% of people earn a four year college degree. A lawyer is a college graduate who had to be in roughly the top 50% of his or her undergraduate class to be admitted to law school, so that puts him or her in the top 15% of academic ability. To actually finish law school and pass the bar exam, a lawyer has to be in roughly the top 12% of academic ability compared to the general public. Lawyers have strong reading and writing skills, reasonable communication skills, understand complex business and family matters, and are reasonably well organized compared to members of the general population. They also come with background checks completed in advance to weed out risks of criminal or otherwise dishonest or high risk employees. These are highly transferrable skill sets and a J.D. is a good substitute for an M.B.A. in many positions. Newly minted lawyers who choose to work in business management or a kindred field can typically secure middle management jobs in business and finance without much difficulty assuming that they weren't disbarred or had their licenses suspended for dishonorable reasons, or in a field related to their undergraduate major in college. So, if a lawyer can't earn a minimum compensation as a lawyer that rivals what the lawyer could earn in middle management, the lawyer will leave law and work in a non-legal post. Many lawyers do just that. And, indeed, since grant based financial aid is very rare for law school, most newly minted lawyers who aren't independently wealthy have huge student loan debts ($200,000 at the completion of an undergraduate degree and law school wouldn't be unusual), so if they want to avoid a default or an extremely long repayment period for a debt that can't be discharged in bankruptcy, they aren't free to accept a very low income even if they are willing to live modestly. The floor of what a lawyer can make in terms of compensation before having to seek better paying non-legal work is on the order of $40,000 to $60,000 of net compensation before taxes per year depending upon the local cost of living. In the long run, average legal incomes need to be even higher, because if too many people end up earning only marginal compensation, more potential lawyers will choose other career paths (e.g. as loan officers at banks, in insurance sales, in real estate brokerage work, as small business owners, as middle managers in big businesses, as H.R. officers, as financial analysts, as management consultants, etc.) which provide greater or similar returns with less student loan debt, fewer years of education, and less risk. Why can't fees be lowered "enough on individualized, bespoke services to meet the unmet need at an aﬀordable price"? Lawyers have bills to pay - a fully furnished and equipped office, at least a part-time per lawyer staff person, suits and dry cleaning, bar dues, and compensation for themselves (the floor on which was discussed above). But, providing "individualized, bespoke services", rather than mass producing services with a paralegal heavy practice (the way most debtor oriented consumer bankruptcy shops run, and the way prosecutor's offices and public defender's offices run), then it takes a lot of hours to provide those services. (The average prosecutors office has expenses of about $50 per felony case or less, not including law enforcement efforts to gather evidence and put the facts together coherently, and public defenders have even lower expenses per average felony case, perhaps $35 or less.) Even the most basic legal services (e.g. writing a simple will, defending a simple residential eviction or collection case or a DUI) takes 4-8 hours of lawyer time to accomplish, and you can't spend 100% of your time providing legal services either, as you have to devote some time to marketing, evaluating potential clients, supervising bookkeeping and administrative tasks, continuing education, etc. So, at most, a lawyer can handle at most about 200 very simple cases a year, or fewer cases that have any sophistication, and sometimes people don't pay their bills or don't pay on time. A 10%-25% bad debt rate would be pretty typical in small firm practice. Realistically, each lawyer needs about $90,000+ of gross collected revenues to cover expenses and make a floor compensation amount. So, a lawyer has to collect at least $500 to make a very modest living and just barely get by on a typical very small case provided at an extreme discount. A lawyer needs more like double that amount of gross revenues per very small case to make a decent living, and that all assumes that marketing efforts can reach enough people to keep the lawyer busy. If a lawyer's marketing or AR collection rates fall, fee collections per case have to rise. The trouble is that lots of people can't afford to pay a lawyer $500 to $1,000. This isn't affordable to them. Keep in mind that 40% of Americans don't have the ability to pay an unexpected $400 expense, and that the percentage is much higher in a place like Alabama or West Virginia. A $500-$1000 legal fee expense for even a very simple matter is something that most people with "unmet legal needs" simply cannot afford to pay no matter how badly they need those services. These are the people with "unmet legal needs", and the cases they face are often cases like defenses of criminal charges likely to result in some sort of conviction, or no asset bankruptcies, or defenses of foreclosure or eviction or collection cases, non-employment related immigration cases, or child custody cases, or defense child support collection actions, in which case there is no significant pot of money from which fees can be paid, even if a lawyer's client wins. (In cases where there is a significant potential "pot of money" like money owed for work done or a personal injury case, legal needs usually are met.) Also, while lots of Americans can't afford even a $400 legal bill, there is a pretty significant group of businesses and upper middle class and wealthy individuals who can afford to pay tens of thousands or hundreds of thousands of dollars per legal matter, and for whom a lawyer can provide value added to the client even at that price. For example, businesses and landlords that need commercial leases to be negotiated, documentation of and negotiation of multi-million dollar business financing deals, tax planning for a complex conglomerate, personal injury litigation in cases with clear liability and serious injuries, business disputes, representation of clients in connection with the bankruptcies of medium and large businesses, employment litigation, white collar crime defense, etc. This kind of work requires a lawyer's marketing effort to be much more modest and dramatically reduces the time spent evaluating new cases. A lawyer may need only five or ten cases like that per year instead of 200 small potatoes cases, while earning much better compensation. So, the legal needs of those who can afford to pay are met, and the legal needs of people who can't afford to pay lawyers at any fee that a lawyer can break even at (realistically closer to $125-$175 per billable hour after bad debt and time generating work and idle time until new clients are secured is considered), and who don't have economic circumstances from which legal fees can be extracted in their cases, go unmet. Until such time as legal work can be provided with fewer attorney hours, or by someone who has less well paying alternatives to practicing law, and with less expensive educations, it will remain this way indefinitely without some sort of subsidy or insurance coverage. Also, keep in mind that practicing law provides an irregular income in small firm practice due to irregular payment timing and ebbs and flows of new clients, so to keep to any reasonable set of fixed living and overhead costs paid, a lawyer must have months that generate much more than the lawyer's "monthly nut" in order to generate savings for lean months. Finally, a lot of the very low paid lawyers are retirees, part-time employees who are also homemakers, are people moonlighting as lawyers in addition to another job, or are charitably inclined independently wealthy people. So, they have additional sources of income and aren't supporting themselves from full time work as lawyers. These are the only people who can afford to work as lawyers for lower amounts of income per year. But, even then, independently wealthy people normally have the best access through social and family networks to people who have an ability to pay them to work on high dollar matters, so they normally end up in high paying jobs where their "rain making" capacity is part of why they are paid so well, rather than giving their services away on a charitable basis. Observation An important corollary of this analysis is that the problem of unmet legal need cannot be solved simply by producing more lawyers, because if you produce more lawyers and all legal need capable of paying for the work is met, the new lawyers will simply pursue non-legal careers.
Your lawyer must act in your best interests; not follow your directions Lawyers are professionals and they are supposed to use professional judgement in how they run a case. While a client can suggest a course of action, the lawyer is not only not obliged to follow it, they would be committing malpractice if they unquestioningly did so. Just like a doctor would be if they unthinkingly implemented a patient suggested treatment plan. A panel of lawyers I was watching commentate on the hearing said it was a critical error and may have blown the case. So, a group of Monday-morning quarterbacks who weren’t chosen and don’t know all the facts would have done it differently? Perhaps it was a mistake. Or, perhaps the lawyer judged that there was nothing he could say that would help and considered that sounding desperate about the video would elevate its import in the minds of the jury.
There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later.
Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality.
The purpose is to avoid the possibility that the solicitor will inadvertently end up providing advice to more than one side of the same dispute or transaction, putting the solicitor in a conflict of interest situation. In the simplest case, the solicitor might already represent the landlord that the tenant is seeking to discuss legal rights vis-a-vis. Even if the advice is merely hypothetical, this is not O.K. A solicitor has a very high duty of loyalty to the solicitor's clients. Providing aid of any kind to someone adverse to the solicitor's clients that benefits that person, even if another solicitor would probably say the same thing, is a serious breach of that duty and is forbidden and sanctionable. It could get the solicitor kicked out of the profession in a worst case scenario. The duty of loyalty includes a duty to take reasonable care not to inadvertently or negligently act disloyally. There is also a risk of a more subtle sort of conflict that has to be evaluated since many disputes and transactions are not just two sided. For example, perhaps a solicitor a big commercial tenant client on the brink of a settlement with a particular landlord after lengthy and extensive negotiations (perhaps in a business lease renewal deal), and another prospective tenant client might, for example, have an interest in leasing the same property as your existing client at a higher rate. Representing both tenants/prospective tenants could creating a conflict between your two tenant clients. Screening clients based upon their landlord relationships helps solicitors to identify these conflicts and to prevent them from arising. More generally, the best practice is for a solicitor to make sufficient inquiry prior to providing any legal advice to a prospective new client, to avoid having clients that have a conflict of interest with each other. This regulation (to the extent that it is really as specific as suggested) is simply a codification of this general rule in a specific, commonly recurring situation. In large law firms, every single legal professional in the firm typically spends the first half hour or so of every day reviewing lists of new prospective clients and parties related to them in order to screen for potential conflicts of interest. (I used to have to do that when I worked in a large, international law firm for a while.) There would typically be one or more paralegals or administrators in the firm who do nothing but manage that conflicts of interest screening process. Obviously, however, this requirement is a lot less burdensome if you are solo practicing solicitor who almost entirely represents individual human being and family tenants with isolated residential leases, and works in a large city where few clients have any connections to each other.
It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial.
Passing the bar exam allows one to get a license to practice law. It is to some extent like a certification exam. It is in all US states a crime to practice law without a license. Exactly how &quot;practice law&quot; is defined varies a bit, but holding yourself out as a lawyer, opening a law office, or taking money for representing people in court is petty much always included. Other related things are often included also. Even if one has passed law school and thus earned a law degree, it is a crime to practice law without a license, and one cannot obtain a license without passing the bar exam. In some states it is possible, but hard, to pass the bar without a law degree, in some a degree is required. so the main thing a law student cannot (legally) do that one who has passed the bar exam can is practice law. Legal Sources I found this definition of the practice of law on an official Maryland web page: The “practice of law” is defined in the Maryland Code as follows: (1) “Practice law” means to engage in any of the following activities: (1) (i) giving legal advice; (1) (ii) representing another person before a unit of the state &gt; (1) &gt; &gt; &gt; (1) (iii) performing any other service that the Court of Appeals defines as practicing law. (2) “Practice law” includes: (2) (i) advising in the administration of probate of estates of decedents in an orphans court of the state; (2) (ii) preparing an instrument that affects title to real estate; (2) (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (2) (iv) giving advice about a case that is or may be filed in a court Md. Code Ann. Bus. Occ. &amp; Prof. § 10-101(h). The Court of Appeals has interpreted the practice of law to include “utilizing legal education, training, and experience [to apply] the special analysis of the profession to a client’s problem.” Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646, 662 (1989). In addition, meeting with potential clients may constitute the practice of law. Id. at 666. The practice of law is “ ‘a term of art connoting much more than merely working with legally related matters.’” Attorney Grievance Commission v. Shaw, 354 Md. 636, 649 (1999) (citations omitted). “ ‘Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.” Id. Therefore, the Court of Appeals ruled that a bar applicant who had served as a hearing examiner for the Maryland Department of Employment &amp; Training was not engaged in the practice of law, and therefore not eligible to take the attorney’s examination. In re Application of Mark W., 303 Md. 1, 4-6 (1985). “The hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client’s legal affairs.” In re Application of R.G.S., 312 Md. 626, 632 (1988). Also relevant is RULE 19-305.5. UNAUTHORIZED PRACTICE OF LAW; Law Students Under Supervision Some comment mentioned assistance in pro bono work by law students. I found Maryland Rule of Professional Conduct 19-220 - Legal Assistance by Law Students which provides in pertinant part, omitting the definitions of terms: (b) Eligibility. A law student enrolled in a clinical program or externship is eligible to engage in the practice of law as provided in this Rule if the student: (b) (1) is enrolled in a law school; (b) (2) has read and is familiar with the Maryland Attorneys' Rules of Professional Conduct and the relevant Maryland Rules of Procedure; and (b) (3) has been certified in accordance with section (c) of this Rule. (c) ... The certification shall state that the student is in good academic standing and has successfully completed legal studies in the law school amounting to the equivalent of at least one-third of the total credit hours required to complete the law school program. ... (d) Practice. In connection with a clinical program or externship, a law student for whom a certification is in effect may appear in any trial court or the Court of Special Appeals, or before any administrative agency, and may otherwise engage in the practice of law in Maryland, provided that the supervising attorney (1) is satisfied that the student is competent to perform the duties assigned, (2) assumes responsibility for the quality of the student's work, (3) directs and assists the student to the extent necessary, in the supervising attorney's professional judgment, to ensure that the student's participation is effective on behalf of the client the student represents, and (4) accompanies the student when the student appears in court or before an administrative agency. The law student shall neither ask for nor receive personal compensation of any kind for service rendered under this Rule, but may receive academic credit pursuant to the clinical program or externship. This page about the Univeristy of Maryland School of Law's public Servie program describes the program as: &quot;one of the region’s largest public interest law firms&quot; and states: Working alongside faculty, students provide 75,000 hours of free legal service annually to Maryland citizens in need[.] This is obviously a widely recognized and approved activity.
A Lawyer may hire paralegals, clerks, secretaries, and other assistants. The lawyer may hire as many as s/he pleases, and assign them whatever tasks s/he chooses. However, some kinds of documents may need to be signed by the lawyer (which ones will depend on the jurisdiction, in the US on the state). During the so-called &quot;robo-signing scandal&quot; it was held that, in some US states at least, a lawyer who signs certain kinds of documents without reviewing them has failed to perform the duties imposed on the lawyer by the law, and the documents may be invalid. Large numbers of mortgage foreclosure cases were dismissed when it became known that the lawyer signing relevant documents had not in fact reviewed them (or in some cases had not even signed them, but had permitted a non-lawyer to sign the lawyer's name). In addition, some functions in some jurisdictions must be performed by an actual lawyer. For example, paralegals and other non-lawyers cannot validly give legal advice. Only a lawyer can represent a client in court. And so on. I question whether one lawyer could in most kinds of practice keep up with the work of &quot;hundreds&quot; of non-lawyers, but that would depend on the kind of work done by the firm. In the US, some law firms are essentially collection agencies. There a single lawyer with many many assistants suffices, I understand, and that structure is not uncommon in the US.