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Sole Practitioners and Serving the Middle Class

This is part three of a two-part series. The previous two columns discussed the lack of affordable legal services for the middle class. One possible way to ameliorate this problem is to license non-lawyer legal practitioners to provide some of these services. (This solution is under consideration in a number of venues creating the predictable furor.) Another is for the surplus lawyers currently graduating from law schools to provide these services either as lower paid employees of firms or as sole practitioners. It is the latter alternative that prompted this column.

The April 26, 2015 edition of the Chicago Daily Law Bulletin ran an article by John Flynn Rooney reporting that sole practitioners had more disciplinary matters before the Illinois ARDC than did attorneys working within firms. Some of the reasons given were the increasing complexity of running a law office and the lack of back-up in a solo practice. The statistic also reminded me of statements made by George Overton, who wrote this column for the CBA Record for many years. He said that a sole practitioner who tried to take on every case ran a high risk of malpractice. The law had become so complex and specialized that there was no way to do it all.

For example, imagine someone walking into an office with a question about his or her pension benefits. There is no practical way a lawyer could effectively answer the question unless that lawyer were an expert or had the time to do the necessary research (and a client willing to pay for it). The law is simply too complex. Recent changes in Illinois regarding handling of retainers and client funds, while not complex, add a level of administration which impacts the sole practitioner more than the firm lawyer. To make matters even harder, Rule of Professional Conduct 1.1 (competence) has been interpreted to include technological competence and the understanding and use of social media. These topics require special training and evolve almost daily.

Some of these problems are the unintended consequences of actions of the legal profession. As a society we try and correct problems and perceived injustice through laws and regulations. As lawyers, we are only too willing to help. However, as a consequence, minor personal matters affecting ordinary middle class people become enmeshed in seemingly Byzantine regulations that should only realistically apply to complex institutions. And lawyers have to master these regulations to properly advise their clients.

So what are possible remedies? The simplest is to change the law to make it more workable when applied to ordinary middle class people – but this is hopelessly aspirational. For lawyers, the best advice is to work within your competency or areas in which you can quickly learn the law. Otherwise, pass the matter on to the experts. For the middle class client, there is no easy answer. There will simply be questions that can only be handled by high-priced firm attorneys – and these questions will likely go unanswered.