Death and Ethics: Suffocating or Saving Nonlawyer Practitioners with Lawyer Ethics

Abstract

Lawyers are no longer the only legal practitioners. In several states and trending toward more, lawyers now share their so-called monopoly over the practice of law with nonlawyer practitioners (NPs). These NPs may practice law without the supervision of lawyers and, like nurse practitioners who provide greater access to medicine, this newborn class of legal professionals was created to provide the public with greater access to justice. But the creators of NPs have saddled them with restrictive ethical codes that limit their ability to reach and serve new clients. While generally laudable, certain ethical restrictions lead to fewer NPs and reduce access to legal services for low-income clients. This Essay spotlights this ethical chokepoint and articulates for courts and policymakers the delicate balance in imposing and adapting ethical rules to this new class of legal professionals. Although important access-to-justice and client-protection policy choices are made with the imposition of each ethical rule, these decisions have largely flown under the radar, thereby risking the continued existence of NPs.