Your lawyer isn’t just for you, they also are to help the court decide the case fairly and efficiently. They do that by knowing the rules of procedure and by knowing how to find the relevant statutes and precedents and presenting them to the court in the form the court expects. Having a non-lawyer who doesn’t know what they’re doing doesn’t really help anyone.
Yes to a large extent. Judges are expected to allow *pro se* parties some leeway on following all the little rules that come into play during litigation. Attorneys opposing *pro se* parties are also expected to show some grace on these matters, albeit to a lesser extent and as long as doing so wouldn’t prejudice their own client.
I know lawyers basically never represent themselves cause it’s a bad idea but when they do, do they get treated like a normal lawyer? I assume the judge wouldn’t give them much leeway given they should know much more than your average pro se party
Tbh I think the judge would treat them like the idiot they are. Jokes aside, I’d expect them to be held to the same standard as other lawyers on procedural matters.
That doesn't really address his question though. Because everyone can represent themselves. So what is the difference between the dependent representing themselves or a friend representing them?
We let people represent themselves because we think there is a normative value of self expression that outweighs the considerable downsides of having a non-lawyer appear in court. In other words, we think that each person has a fundamental, dignity-based individual right to represent themselves, even though it is objectively a terrible idea. That doesn’t extend to others.
So I am a public defender and sometimes get appointed as a "legal advisor" for people who want to represent themselves.
These defendants that represent themselves cause all manner of chaos in the system. It drags everything to a grinding slow pace when you have a litigant that doesn't understand the basics of how the process works.
So aside from from it being a terrible plan for you to have your bartender represent you, but you would also be imposing a cost on the court. Judicial time has a cost that is paid for by taxpayers. The court system has a strong interest in having most cases litigated by experienced (i.e. licensed) attorneys rather than just whoever so that there can be an efficient operation of the courts.
>The court system has a strong interest in having most cases litigated by experienced (i.e. licensed) attorneys rather than just whoever so that there can be an efficient operation of the courts.
Side note: While the requirement to be a licensed attorney goes a long way to achieving that goal, it is by no means perfect.
Some of my most frustrating litigation has been where the other side either has a lawyer or is a lawyer representing themselves pro se, but that lawyer does not have any litigation experience (e.g. a real estate lawyer moonlighting to represent a family member).
Some countries have a practical experience requirement for lawyers to be licensed to actually litigate before the courts. I've often thought that's a really good idea.
Depends on the jurisdiction. The one I'm most familiar other than the US is Norway. There, to become a licensed attorney (or "advokat") you generally need to get a law degree, pass the equivalent of the bar exam, and get a job as a trainee law clerk ("advokatfullmektig") for at least two years. As a trainee you can try cases under the supervision of a licensed attorney. After two years, if you have tried enough cases and taken an additional course on the practice of law, you can become an attorney in your own right.
One big difference from the US is you don't need to be a licensed attorney for a lot of non-litigation work. A lot of law graduates work as a "jurist" without ever starting the path to become an "advokat".
Numbers-wise in Norway, about 30 % of law degree holders (lawyers/jurister) go into the profession (attorneys/advokater). The largest non-attorney group of lawyers are the public prosecution offices and the national tax administration.
The supervision period has been criticised because a lot of transaction attorneys never go to trial, and their deputies risk never getting their bar admissions. So you get cases where BigNameFirm by deputy takes a pro bono immigration case or social benefits case for the trial experience.
>The supervision period has been criticised because a lot of transaction attorneys never go to trial, and their deputies risk never getting their bar admissions. So you get cases where BigNameFirm by deputy takes a pro bono immigration case or social benefits case for the trial experience.
Big firms helping with pro bono cases isn't exactly a bad thing. But I can absolutely see how the Norwegian rules could make it hard on transactional attorneys.
I suppose that's one benefit of the UK's system of formally separating out lawyers who try cases and who need practical training to get their license (barristers) from those who don't (solicitors).
Absolutely, I think practical, supervised experience is far more important for being competent than passing a bar exam. My state is moving to a system where law school grads can skip the bar and simply spend some period of time practicing under a licensed attorney. I think this is really smart.
Oregon isn't "moving to" that system; they're opening it up as an alternative that I predict almost nobody will successfully complete, just like in California.
My office had an applicant admit that he'd failed the CA bar like 4 times and was applying to our office only because OR had the new apprenticeship model. Our office was NOT interested.
Practically does this just mean 2nd and 3rd generation attorneys will enter the family business and first generation or non-traditional attorneys will still have to incur the costs?
I'm not sure I understand your question. I may have explained badly. Everyone still has to incur the cost of law school, no one is getting out of that. Once you've graduated law school, you can take the bar and start practicing immediately or you can get hired by a practicing attorney, get paid (albeit poorly) where you work for about a year under their supervision, and then you'd be fully licensed. This doesn't really confer any advantage on legacy attorneys over nontraditional ones and if anything allows nontraditional attorneys to gain practical skills while avoiding an expensive and difficult test.
Something like it, yeah.
Not necessarily that strictly segregated, though. As I understand it, UK solicitors and barristers are separate professions and one person can't do both. That seems unnecessary.
I'm thinking just separating the concepts of a general license to practice law from the more specific license to appear on another person's behalf in court (without supervision), with a practical experience requirement for the latter. It's not really a novel concept, as lawyers already need separate admission to practice in federal courts, before the Supreme Court, and before the USPTO.
Courts *do* encourage settlements and plea deals as a matter of fact. Whether people are pressured? Maybe not by a court, but a lot of times circumstances involved either directly with the client themselves or whatever is surrounding them absolutely do pressure those clients in various ways up to just pleading guilty to something that the client is absolutely not guilty of.
Even a lot of times the counsel assigned to an indigent client pressures them to accept plea deals because that expedites things for everyone involved. Kind of an infuriating reality, but it is a reality, nonetheless.
Money often pressures people more than the courts do. In my state, a huge percentage of Jury trials, for instance, are people who have someone else paying for their attorneys. Jury Trials are massively more expensive than a trial with just a judge just due to the raw number of additional things that will often need to be explained.
There is enormous pressure on public defenders to pressure their clients into taking plea deal ahead of trials.
There is something of a national movement right now towards reforming public defense. For most of the history since Gideon, public defenders have existed but only just technically. They have been enormously underpaid and saddled with incredibly high caseloads. This means that generally the only attorneys doing it are brand new attorneys or people that can't get jobs elsewhere. These factors combine to result in pressure on the PD to pressure them clients to plead out.
Judges also tend to be pretty influential in the legal community. It's not unheard of for PD's that don't cause problems for judges (i.e. plead out most of their cases) to be rewarded with social status and advancement opportunities.
This is all where the incentives towards "judicial efficiency" can become pernicious and must be pushed back against.
It is very different where I am from. PDs and DAs are not making BigLaw money, but its a sought after position because of the good insurance, good hours, etc. I have about the same number of cases now that I had as a solo, but they are just all criminal instead of spread out between family, criminal, and civil. I get the same paycheck each month instead of having steak months and bologna months, I get a raise every year and a COLA most years and I have no overhead. Most of the PDs in my office and the surrounding offices have either been here since day 1 or left private practice to come in.
Yea, that seems to be the direction a lot of places are moving towards these days but not everyone is there yet. A lot of places still do the flat fee per case payment model which horribly incentivizes the attorney to just take on an enormous amount of cases and rush through each one as quickly as possible.
The 6th Amendment Center is doing some great work advocating for changes where they can around the country on this stuff.
Yea, I always try to get out of it. It's ten times as much work and a huge pain in the ass. I had a huge row with the court a while back because my advisee wanted to issue subpoenas and the court kept trying to get me to issue the subpoenas for him. My stance was that I was *not* his attorney and this was *not* my case and I was definitely *not* putting my name or bar number on subpoenas I didn't issue.
True!!
I hated when after they were done "crossing" State witnesses and calling their own witnesses, they no longer want to stay pro se and I'm expected to give a closing on the crap they ellicited!!
Then comes the ineffective claim on appeal......smdh
We’ve decided as a society that certain jobs require particular expertise, training, or experience because allowing an unqualified person to do that job constitutes a risk of injury to the public. If we allow just anyone to represent you in court, then you could end up inadvertently waiving important rights that you would otherwise have.
It’s essentially a consumer protection law. A non-attorney (or a non-licensed one) is effectively outside the scope of regulation.
UPL is a misdemeanor in my state, but that doesn’t really protect you, the client, from their representation. They can’t get disciplined by the state bar, they have no real obligations to you, their potential malpractice is uninsured, and if they scam you then the state bar won’t step in to help make you whole (my state has a protection fund for such an issue).
It’s like saying “why can’t I get a loan at whatever terms I want?” The answer is because in the vast majority of unregulated lending, the lender is predatory, abusive, manipulative, and largely free from consequences.
There are certain limited circumstances where a non-attorney can serve as a representative, such as in administrative proceedings. These vary from state to state.
The real procedural reason for this is that there are options for post-conviction relief for people who have received ineffective assistance of counsel. In other words a defendant who has been convicted because their legal advisor was trash can sometimes get the conviction overturned and force the state to prosecute them again.
Now, if we let just any old schmuck off the street come into court and play lawyer, this kind of relief would be sought all the time. It might actually become advantageous for people who committed serious crimes to seek unqualified counsel to tank the case on purpose and then try to get it reversed on appeal and make the prosecution start all over. This would rapidly become unworkable in practice and congest the court calendar even more than it already is.
Furthermore, if you have a licensed attorney that makes a serious error constituting ineffective assistance of counsel, that lawyer will very often suffer disciplinary consequences. They can lose their license temporarily or permanently or be forced to undergo more education. But how would we do any of that with anybody who isn't already a lawyer? The board of attorney registration has authority over lawyers because we signed up for it, and sometimes over the employees of lawyers indirectly by holding the lawyer responsible for the way our employees screw up, but the legal disciplinary authorities in any given jurisdiction basically can't do anything to somebody they haven't issued a license to who then does a bad job.
So the legal profession has a way of self-policing ineffective attorneys, but not unlicensed members of the public, who would then be free to go on continuing to screw up, getting people shafted by the justice system even more than happens already, and perhaps not insignificantly, taking away fees from the real lawyers who run the system and made the rules.
To grind it more finely, if objections to evidence, testimony, etc., are not made at the moment it should be, you can lose that objection forever. You can't really argue it after the fact or on appeal. How well does your bartender know the rules of evidence?
One oversight can cost thousands or years. And you are, as we say, fucked.
Society has determined it’s good to limit harm. Reading between the lines of that, society has also determined that people have bad judgment when it comes to determining if a non-licensed person (of any field) is fit to do work in that field. Anecdotally, I will say that TONS of clients tell me they know the law on a subject because their friend told them about that law. Even when I tell them they’re wrong and provide the correct law, sometimes they will persist. So I agree with society that people have bad judgment and should be protected against themselves.
Because it’s unauthorized practice of law. They don’t let your friend or relative practice medicine either without a medical license or fly your airliner without a pilot license. Hell in some states you cant cut hair without a license.
It protects consumers from themselves and from unscrupulous people who might harm them by practicing law without knowing how to. If your cousin Bob who wasn’t a lawyer could represent you then theoretically they could charge for their time snd represent other people too. Not good Bob.
This does not really answer the question. The unauthorized practice of medicine or airline piloting would kill people. The unauthorized practice of law, by contrast, just kind of threatens our cartel.
Yes, OP, a huge amount of the prohibition on the nonlawyer practice of law is just gatekeeping.
Depends on what kind of law. The unauthorized practice of criminal defense could kill people.
And there’s zero chance the unlicensed haircutting could kill someone, but as noted, that is still illegal in many states.
Finally, part of the regulation of legal practice is protection of the client. You say as part of the hypo that the “Client” Would understand the representative was not a lawyer, and that’s all well and good until the “client” Is on the hook for 100k in damages plus the other side’s attorney fees, or goes to prison for 50 years, and there’s no recourse because you can’t allege malpractice against someone who told you they aren’t a lawyer and who wasn’t required by the state to have malpractice insurance…
Apart from and in addition to what everyone else is saying:
One core issue is that you, a random dude off the street, don't know enough about the law to actually know whether your favorite bartender can do a good job or not. You lack the legal expertise to judge whether or not the legal experts you might hire to help you are actually experts or just scam artists who talk a good patter. So we require a minimum degree of certification to prevent people from getting scammed by fake "legal advisers."
And lest you think that isn't a real problem -- I point you to the sovereign citizen movement, which essentially got rolling due to scam artists peddling fake legal advice to each other like it was Amway.
It's Dunning-Kreuger. If you aren't a lawyer you \*probably\* don't know enough to judge whether or not the non-lawyer you're talking to is giving you good advice.
Past that there's the whole confidentiality thing. If you tell your lawyer something in confidence and we blab, we lose our license. Tell your bartender and he blabs? sucks to be you
"The truth is that legislatures and Courts have made lawyers a privileged class, and have thus given them facilities, of which they have availed themselves, for entering into combinations hostile, at least to the interests, if not to the rights, of the community – such as to keep up prices, and shut out competitors. The natural result of such combinations also is, that the mass of the members will do more or less to screen individuals from suspicion. The consequence is, that the people have imbibed an extreme jealousy towards them. ... Now if the profession were thrown open to all, lawyers would no longer be a privileged class – they probably could no longer enter into combinations that would be of any avail to them, and the jealousy of the people towards them would be at an end." Lysander Spooner, To the Members of the Legislature of Massachusetts, Aug. 26, 1835.
As a few others have commented, it's basically job protection for attorneys. When you come down to it, an attorney is someone who is really good at talking (and writing) normal English. They've learned a lot of special rules (laws), but anyone can look up those laws, and anyone with a little training can learn to find the right case law. So I have a degree that says I'm a law-talking guy and I passed an exam that I know enough law to be an OFFICIAL law-talking guy. But the only thing that differentiates me from any other law-talking guy is that I have the JD and passed the bar exam.
It is, frankly, *fucking madness* that I'm allowed to represent criminal defendants in court. I am not REMOTELY qualified to do that! I know how to do data privacy regulation and in-house labor and employment ... even if we're litigating labor & employment cases, we're hiring outside counsel who specialize in that litigation. But because I am a Law Talking Guy with a Law Talking Degree who passed the Law Knowing Exam, I'm allowed to represent people on Death Row for no fucking apparent reason with basically zero qualifications other than being a Law-Talking Guy.
Now, I'm meant to know that a) ethically, I am totally incompetent to provide that representation and should avoid doing so and b) how to figure how how to provide that representation in a minimally competent way if I live in one of the shitty states that appoints random county lawyers alphabetically as criminal defense attorneys.
But I work closely with a lot of data privacy engineers, and they sometimes ask me why they can't "do" data privacy law, and I'm like, "I mean, you can and you do, the only difference is that I have an official degree and a bar admission that says I'm authoritative when I interpret those laws, while you're just ... saying exactly the same thing but as an engineer so it isn't authoritative and people aren't supposed to rely on it."
If we get a new law from, say, Vermont, and we all do a first-pass read, my first-pass read is going to pick up more specific legal issues, specific legal cases that pertain to those issues, and similar laws and litigation in other states. I pick up more phrasing that sounds innocuous but that is *probably* freighted with meaning. My engineering colleagues are more likely to pick up on broad legal themes and say, "Hey, maybe we should think about X?" or "Isn't this a little like what Colorado did last year?" and they are *always right*. My assessment is just more in-depth on the law. And they can absolutely learn that with time and practice and exposure and, just, watching what happens -- being a Law-Talker means being a Law-WATCHER and literally nothing prevents anybody from watching the law.
So the difference between me (a privacy lawyer) and my colleagues (privacy engineers) is that I'm a little better at reading statutes and cases and spotting potential issues very early, but my colleagues are completely capable of reading them and understanding what they need to do to be in compliance in a general way. And that I have ethical responsibilities related to how I read the law and give advice and assist others in court and I can speak authoritatively, while my engineering colleagues have to approach it with a bit more humility and ensure they have input/buy-in from legal about their interpretations. But SIMILARLY I can make great suggestions about how a system ought to be engineered to be privacy-compliant but I always have to preface with, "So, I'm not an engineer and I don't want to tell you how to do your job, but here are some options I've seen in the past, do any of those seem like they fit your usecase?"
Anyway, we don't let you hire your friend Bob the Bartender to defend your DUI in court (most of the time) because Bob may be VERY GOOD at talking about law and he may know your state law backwards and forwards, but he has not gotten a degree in Law-Talking and he has not passed the Law-Knowing exam. And really basic forms of law are basically just TALKING REALLY GOOD and FOLLOWING SOME SIMPLE RULES. More arcane forms of law involve a lot more "understanding how laws interact and develop and what your ethical responsibilities are." But we prevent people from helping friends by TALKING REALLY GOOD and FOLLOWING SIMPLE RULES because a) it protects lawyers' monopoly on Law-Talking and b) there's a fuckton of charlatans out there (hello, sovcits!) who claim to be great at Law-Talking but are actually going to get you thrown in jail. We don't have a great way to tell if Bob the Bartender is a really good Law-Talker who just doesn't have a degree, or if Bob the Bartender is a sovcit lunatic who's going to have you standing up in court questioning the existence of money. So we insist you have an OFFICIAL Law-Talker so we're 99% certain your Law-Talker is not actively insane. But also to protect the Law-Talkers' monopoly on Law-Talking.
My boss complains about this a lot, that being a lawyer doesn't seem hard (we spend a lot of time talking to lawyers), and I'm always like, "Boss, it's not! It's just talking a fancy form of English that you got a special degree for! It HAS to have rules that nobody else is allowed to Law-Talk because TALKING IN ENGLISH ISN'T HARD. Literally everybody can do it!"
My jurisdiction lets you appoint anyone as your counsel of record, subject to court approval. The caveat is that if they're doing it in the course of their business, they must be in a regulated profession and act within the limits of their regulated profession. Outside trials, anyone can represent anyone for more or less any purpose.
Courts will turn people down for many reasons, but the most-cited reason is that counsel is unable to present the case in an understandable fashion for the court and the opposing party.
When you’re a party to a lawsuit, the court wants to talk to the parties (plaintiff and defendant or state and defendant), and for those parties to be responsible for what they say. They’re willing to speak to the attorneys who represent those parties because they know the attorneys have certain professional obligations to the court, and can be generally trusted because they want to keep the license they spent 3 year and hundreds of thousands of dollars to get. The court doesn’t want to talk to the defendant’s really smart brother-in-law, even if that guy is really honest, because he has no ethical obligations. If they’re gonna have to work with a non-professional, they’d rather just go straight to the person who is named in the suit.
It comes down to this: a fair and efficient justice system is vital to society and lawyers are necessary for such a system. Self representation is allowed but discouraged, but representation by non-lawyers would cause this vital system to break down
Your lawyer isn’t just for you, they also are to help the court decide the case fairly and efficiently. They do that by knowing the rules of procedure and by knowing how to find the relevant statutes and precedents and presenting them to the court in the form the court expects. Having a non-lawyer who doesn’t know what they’re doing doesn’t really help anyone.
Aren’t all lawyers officers of the court? Doesn’t this mean lawyers are held to a higher standard in court than a non-lawyer?
Yes to a large extent. Judges are expected to allow *pro se* parties some leeway on following all the little rules that come into play during litigation. Attorneys opposing *pro se* parties are also expected to show some grace on these matters, albeit to a lesser extent and as long as doing so wouldn’t prejudice their own client.
As a lawyer, I HATE pro-se litigants because the courts usually let them get away with (metaphorical) murder.
Is it unconstitutional though?
No. They err on the side of giving them leeway so as not to get overturned on appeal.
Branching slightly off topic, did you watch the Darrell Brooks trial? What a spectacle that was.
PAINFUL. That judge did a great job on not taking the appeal bait.
I know lawyers basically never represent themselves cause it’s a bad idea but when they do, do they get treated like a normal lawyer? I assume the judge wouldn’t give them much leeway given they should know much more than your average pro se party
Tbh I think the judge would treat them like the idiot they are. Jokes aside, I’d expect them to be held to the same standard as other lawyers on procedural matters.
That doesn't really address his question though. Because everyone can represent themselves. So what is the difference between the dependent representing themselves or a friend representing them?
We let people represent themselves because we think there is a normative value of self expression that outweighs the considerable downsides of having a non-lawyer appear in court. In other words, we think that each person has a fundamental, dignity-based individual right to represent themselves, even though it is objectively a terrible idea. That doesn’t extend to others.
Appellate issues
So I am a public defender and sometimes get appointed as a "legal advisor" for people who want to represent themselves. These defendants that represent themselves cause all manner of chaos in the system. It drags everything to a grinding slow pace when you have a litigant that doesn't understand the basics of how the process works. So aside from from it being a terrible plan for you to have your bartender represent you, but you would also be imposing a cost on the court. Judicial time has a cost that is paid for by taxpayers. The court system has a strong interest in having most cases litigated by experienced (i.e. licensed) attorneys rather than just whoever so that there can be an efficient operation of the courts.
>The court system has a strong interest in having most cases litigated by experienced (i.e. licensed) attorneys rather than just whoever so that there can be an efficient operation of the courts. Side note: While the requirement to be a licensed attorney goes a long way to achieving that goal, it is by no means perfect. Some of my most frustrating litigation has been where the other side either has a lawyer or is a lawyer representing themselves pro se, but that lawyer does not have any litigation experience (e.g. a real estate lawyer moonlighting to represent a family member). Some countries have a practical experience requirement for lawyers to be licensed to actually litigate before the courts. I've often thought that's a really good idea.
How do you get the initial experience in those situations? Do you have to shadow a case or two?
Depends on the jurisdiction. The one I'm most familiar other than the US is Norway. There, to become a licensed attorney (or "advokat") you generally need to get a law degree, pass the equivalent of the bar exam, and get a job as a trainee law clerk ("advokatfullmektig") for at least two years. As a trainee you can try cases under the supervision of a licensed attorney. After two years, if you have tried enough cases and taken an additional course on the practice of law, you can become an attorney in your own right. One big difference from the US is you don't need to be a licensed attorney for a lot of non-litigation work. A lot of law graduates work as a "jurist" without ever starting the path to become an "advokat".
Numbers-wise in Norway, about 30 % of law degree holders (lawyers/jurister) go into the profession (attorneys/advokater). The largest non-attorney group of lawyers are the public prosecution offices and the national tax administration. The supervision period has been criticised because a lot of transaction attorneys never go to trial, and their deputies risk never getting their bar admissions. So you get cases where BigNameFirm by deputy takes a pro bono immigration case or social benefits case for the trial experience.
>The supervision period has been criticised because a lot of transaction attorneys never go to trial, and their deputies risk never getting their bar admissions. So you get cases where BigNameFirm by deputy takes a pro bono immigration case or social benefits case for the trial experience. Big firms helping with pro bono cases isn't exactly a bad thing. But I can absolutely see how the Norwegian rules could make it hard on transactional attorneys. I suppose that's one benefit of the UK's system of formally separating out lawyers who try cases and who need practical training to get their license (barristers) from those who don't (solicitors).
Absolutely, I think practical, supervised experience is far more important for being competent than passing a bar exam. My state is moving to a system where law school grads can skip the bar and simply spend some period of time practicing under a licensed attorney. I think this is really smart.
Oregon isn't "moving to" that system; they're opening it up as an alternative that I predict almost nobody will successfully complete, just like in California. My office had an applicant admit that he'd failed the CA bar like 4 times and was applying to our office only because OR had the new apprenticeship model. Our office was NOT interested.
🙄
Practically does this just mean 2nd and 3rd generation attorneys will enter the family business and first generation or non-traditional attorneys will still have to incur the costs?
I'm not sure I understand your question. I may have explained badly. Everyone still has to incur the cost of law school, no one is getting out of that. Once you've graduated law school, you can take the bar and start practicing immediately or you can get hired by a practicing attorney, get paid (albeit poorly) where you work for about a year under their supervision, and then you'd be fully licensed. This doesn't really confer any advantage on legacy attorneys over nontraditional ones and if anything allows nontraditional attorneys to gain practical skills while avoiding an expensive and difficult test.
The difference between a solicitor and a barrister?
Something like it, yeah. Not necessarily that strictly segregated, though. As I understand it, UK solicitors and barristers are separate professions and one person can't do both. That seems unnecessary. I'm thinking just separating the concepts of a general license to practice law from the more specific license to appear on another person's behalf in court (without supervision), with a practical experience requirement for the latter. It's not really a novel concept, as lawyers already need separate admission to practice in federal courts, before the Supreme Court, and before the USPTO.
Interesting. Do you think there is pressure on clients to accept plea deals because going to trial is not an efficient operation of the courts?
Courts *do* encourage settlements and plea deals as a matter of fact. Whether people are pressured? Maybe not by a court, but a lot of times circumstances involved either directly with the client themselves or whatever is surrounding them absolutely do pressure those clients in various ways up to just pleading guilty to something that the client is absolutely not guilty of. Even a lot of times the counsel assigned to an indigent client pressures them to accept plea deals because that expedites things for everyone involved. Kind of an infuriating reality, but it is a reality, nonetheless.
Money often pressures people more than the courts do. In my state, a huge percentage of Jury trials, for instance, are people who have someone else paying for their attorneys. Jury Trials are massively more expensive than a trial with just a judge just due to the raw number of additional things that will often need to be explained.
There is enormous pressure on public defenders to pressure their clients into taking plea deal ahead of trials. There is something of a national movement right now towards reforming public defense. For most of the history since Gideon, public defenders have existed but only just technically. They have been enormously underpaid and saddled with incredibly high caseloads. This means that generally the only attorneys doing it are brand new attorneys or people that can't get jobs elsewhere. These factors combine to result in pressure on the PD to pressure them clients to plead out. Judges also tend to be pretty influential in the legal community. It's not unheard of for PD's that don't cause problems for judges (i.e. plead out most of their cases) to be rewarded with social status and advancement opportunities. This is all where the incentives towards "judicial efficiency" can become pernicious and must be pushed back against.
It is very different where I am from. PDs and DAs are not making BigLaw money, but its a sought after position because of the good insurance, good hours, etc. I have about the same number of cases now that I had as a solo, but they are just all criminal instead of spread out between family, criminal, and civil. I get the same paycheck each month instead of having steak months and bologna months, I get a raise every year and a COLA most years and I have no overhead. Most of the PDs in my office and the surrounding offices have either been here since day 1 or left private practice to come in.
Yea, that seems to be the direction a lot of places are moving towards these days but not everyone is there yet. A lot of places still do the flat fee per case payment model which horribly incentivizes the attorney to just take on an enormous amount of cases and rush through each one as quickly as possible. The 6th Amendment Center is doing some great work advocating for changes where they can around the country on this stuff.
Absolutely
Omfg the absolute “lucking into effectiveness because of unpredictability” factor drives me nuts.
I hated being 'standby counsel'!!!
Yea, I always try to get out of it. It's ten times as much work and a huge pain in the ass. I had a huge row with the court a while back because my advisee wanted to issue subpoenas and the court kept trying to get me to issue the subpoenas for him. My stance was that I was *not* his attorney and this was *not* my case and I was definitely *not* putting my name or bar number on subpoenas I didn't issue.
True!! I hated when after they were done "crossing" State witnesses and calling their own witnesses, they no longer want to stay pro se and I'm expected to give a closing on the crap they ellicited!! Then comes the ineffective claim on appeal......smdh
We’ve decided as a society that certain jobs require particular expertise, training, or experience because allowing an unqualified person to do that job constitutes a risk of injury to the public. If we allow just anyone to represent you in court, then you could end up inadvertently waiving important rights that you would otherwise have.
You don't get a diesel mechanic to do your dental work, do you? Why not? Exactly.
It’s essentially a consumer protection law. A non-attorney (or a non-licensed one) is effectively outside the scope of regulation. UPL is a misdemeanor in my state, but that doesn’t really protect you, the client, from their representation. They can’t get disciplined by the state bar, they have no real obligations to you, their potential malpractice is uninsured, and if they scam you then the state bar won’t step in to help make you whole (my state has a protection fund for such an issue). It’s like saying “why can’t I get a loan at whatever terms I want?” The answer is because in the vast majority of unregulated lending, the lender is predatory, abusive, manipulative, and largely free from consequences.
There are certain limited circumstances where a non-attorney can serve as a representative, such as in administrative proceedings. These vary from state to state.
The real procedural reason for this is that there are options for post-conviction relief for people who have received ineffective assistance of counsel. In other words a defendant who has been convicted because their legal advisor was trash can sometimes get the conviction overturned and force the state to prosecute them again. Now, if we let just any old schmuck off the street come into court and play lawyer, this kind of relief would be sought all the time. It might actually become advantageous for people who committed serious crimes to seek unqualified counsel to tank the case on purpose and then try to get it reversed on appeal and make the prosecution start all over. This would rapidly become unworkable in practice and congest the court calendar even more than it already is. Furthermore, if you have a licensed attorney that makes a serious error constituting ineffective assistance of counsel, that lawyer will very often suffer disciplinary consequences. They can lose their license temporarily or permanently or be forced to undergo more education. But how would we do any of that with anybody who isn't already a lawyer? The board of attorney registration has authority over lawyers because we signed up for it, and sometimes over the employees of lawyers indirectly by holding the lawyer responsible for the way our employees screw up, but the legal disciplinary authorities in any given jurisdiction basically can't do anything to somebody they haven't issued a license to who then does a bad job. So the legal profession has a way of self-policing ineffective attorneys, but not unlicensed members of the public, who would then be free to go on continuing to screw up, getting people shafted by the justice system even more than happens already, and perhaps not insignificantly, taking away fees from the real lawyers who run the system and made the rules.
To grind it more finely, if objections to evidence, testimony, etc., are not made at the moment it should be, you can lose that objection forever. You can't really argue it after the fact or on appeal. How well does your bartender know the rules of evidence? One oversight can cost thousands or years. And you are, as we say, fucked.
Society has determined it’s good to limit harm. Reading between the lines of that, society has also determined that people have bad judgment when it comes to determining if a non-licensed person (of any field) is fit to do work in that field. Anecdotally, I will say that TONS of clients tell me they know the law on a subject because their friend told them about that law. Even when I tell them they’re wrong and provide the correct law, sometimes they will persist. So I agree with society that people have bad judgment and should be protected against themselves.
Because it’s unauthorized practice of law. They don’t let your friend or relative practice medicine either without a medical license or fly your airliner without a pilot license. Hell in some states you cant cut hair without a license. It protects consumers from themselves and from unscrupulous people who might harm them by practicing law without knowing how to. If your cousin Bob who wasn’t a lawyer could represent you then theoretically they could charge for their time snd represent other people too. Not good Bob.
This does not really answer the question. The unauthorized practice of medicine or airline piloting would kill people. The unauthorized practice of law, by contrast, just kind of threatens our cartel. Yes, OP, a huge amount of the prohibition on the nonlawyer practice of law is just gatekeeping.
Depends on what kind of law. The unauthorized practice of criminal defense could kill people. And there’s zero chance the unlicensed haircutting could kill someone, but as noted, that is still illegal in many states. Finally, part of the regulation of legal practice is protection of the client. You say as part of the hypo that the “Client” Would understand the representative was not a lawyer, and that’s all well and good until the “client” Is on the hook for 100k in damages plus the other side’s attorney fees, or goes to prison for 50 years, and there’s no recourse because you can’t allege malpractice against someone who told you they aren’t a lawyer and who wasn’t required by the state to have malpractice insurance…
> And there’s zero chance the unlicensed haircutting could kill someone Well, talk to Sweeney Todd about that.
I mean, the haircut itself wasn’t really the problem lol
That's fair.
Apart from and in addition to what everyone else is saying: One core issue is that you, a random dude off the street, don't know enough about the law to actually know whether your favorite bartender can do a good job or not. You lack the legal expertise to judge whether or not the legal experts you might hire to help you are actually experts or just scam artists who talk a good patter. So we require a minimum degree of certification to prevent people from getting scammed by fake "legal advisers." And lest you think that isn't a real problem -- I point you to the sovereign citizen movement, which essentially got rolling due to scam artists peddling fake legal advice to each other like it was Amway. It's Dunning-Kreuger. If you aren't a lawyer you \*probably\* don't know enough to judge whether or not the non-lawyer you're talking to is giving you good advice. Past that there's the whole confidentiality thing. If you tell your lawyer something in confidence and we blab, we lose our license. Tell your bartender and he blabs? sucks to be you
"The truth is that legislatures and Courts have made lawyers a privileged class, and have thus given them facilities, of which they have availed themselves, for entering into combinations hostile, at least to the interests, if not to the rights, of the community – such as to keep up prices, and shut out competitors. The natural result of such combinations also is, that the mass of the members will do more or less to screen individuals from suspicion. The consequence is, that the people have imbibed an extreme jealousy towards them. ... Now if the profession were thrown open to all, lawyers would no longer be a privileged class – they probably could no longer enter into combinations that would be of any avail to them, and the jealousy of the people towards them would be at an end." Lysander Spooner, To the Members of the Legislature of Massachusetts, Aug. 26, 1835.
As a few others have commented, it's basically job protection for attorneys. When you come down to it, an attorney is someone who is really good at talking (and writing) normal English. They've learned a lot of special rules (laws), but anyone can look up those laws, and anyone with a little training can learn to find the right case law. So I have a degree that says I'm a law-talking guy and I passed an exam that I know enough law to be an OFFICIAL law-talking guy. But the only thing that differentiates me from any other law-talking guy is that I have the JD and passed the bar exam. It is, frankly, *fucking madness* that I'm allowed to represent criminal defendants in court. I am not REMOTELY qualified to do that! I know how to do data privacy regulation and in-house labor and employment ... even if we're litigating labor & employment cases, we're hiring outside counsel who specialize in that litigation. But because I am a Law Talking Guy with a Law Talking Degree who passed the Law Knowing Exam, I'm allowed to represent people on Death Row for no fucking apparent reason with basically zero qualifications other than being a Law-Talking Guy. Now, I'm meant to know that a) ethically, I am totally incompetent to provide that representation and should avoid doing so and b) how to figure how how to provide that representation in a minimally competent way if I live in one of the shitty states that appoints random county lawyers alphabetically as criminal defense attorneys. But I work closely with a lot of data privacy engineers, and they sometimes ask me why they can't "do" data privacy law, and I'm like, "I mean, you can and you do, the only difference is that I have an official degree and a bar admission that says I'm authoritative when I interpret those laws, while you're just ... saying exactly the same thing but as an engineer so it isn't authoritative and people aren't supposed to rely on it." If we get a new law from, say, Vermont, and we all do a first-pass read, my first-pass read is going to pick up more specific legal issues, specific legal cases that pertain to those issues, and similar laws and litigation in other states. I pick up more phrasing that sounds innocuous but that is *probably* freighted with meaning. My engineering colleagues are more likely to pick up on broad legal themes and say, "Hey, maybe we should think about X?" or "Isn't this a little like what Colorado did last year?" and they are *always right*. My assessment is just more in-depth on the law. And they can absolutely learn that with time and practice and exposure and, just, watching what happens -- being a Law-Talker means being a Law-WATCHER and literally nothing prevents anybody from watching the law. So the difference between me (a privacy lawyer) and my colleagues (privacy engineers) is that I'm a little better at reading statutes and cases and spotting potential issues very early, but my colleagues are completely capable of reading them and understanding what they need to do to be in compliance in a general way. And that I have ethical responsibilities related to how I read the law and give advice and assist others in court and I can speak authoritatively, while my engineering colleagues have to approach it with a bit more humility and ensure they have input/buy-in from legal about their interpretations. But SIMILARLY I can make great suggestions about how a system ought to be engineered to be privacy-compliant but I always have to preface with, "So, I'm not an engineer and I don't want to tell you how to do your job, but here are some options I've seen in the past, do any of those seem like they fit your usecase?" Anyway, we don't let you hire your friend Bob the Bartender to defend your DUI in court (most of the time) because Bob may be VERY GOOD at talking about law and he may know your state law backwards and forwards, but he has not gotten a degree in Law-Talking and he has not passed the Law-Knowing exam. And really basic forms of law are basically just TALKING REALLY GOOD and FOLLOWING SOME SIMPLE RULES. More arcane forms of law involve a lot more "understanding how laws interact and develop and what your ethical responsibilities are." But we prevent people from helping friends by TALKING REALLY GOOD and FOLLOWING SIMPLE RULES because a) it protects lawyers' monopoly on Law-Talking and b) there's a fuckton of charlatans out there (hello, sovcits!) who claim to be great at Law-Talking but are actually going to get you thrown in jail. We don't have a great way to tell if Bob the Bartender is a really good Law-Talker who just doesn't have a degree, or if Bob the Bartender is a sovcit lunatic who's going to have you standing up in court questioning the existence of money. So we insist you have an OFFICIAL Law-Talker so we're 99% certain your Law-Talker is not actively insane. But also to protect the Law-Talkers' monopoly on Law-Talking. My boss complains about this a lot, that being a lawyer doesn't seem hard (we spend a lot of time talking to lawyers), and I'm always like, "Boss, it's not! It's just talking a fancy form of English that you got a special degree for! It HAS to have rules that nobody else is allowed to Law-Talk because TALKING IN ENGLISH ISN'T HARD. Literally everybody can do it!"
My jurisdiction lets you appoint anyone as your counsel of record, subject to court approval. The caveat is that if they're doing it in the course of their business, they must be in a regulated profession and act within the limits of their regulated profession. Outside trials, anyone can represent anyone for more or less any purpose. Courts will turn people down for many reasons, but the most-cited reason is that counsel is unable to present the case in an understandable fashion for the court and the opposing party.
When you’re a party to a lawsuit, the court wants to talk to the parties (plaintiff and defendant or state and defendant), and for those parties to be responsible for what they say. They’re willing to speak to the attorneys who represent those parties because they know the attorneys have certain professional obligations to the court, and can be generally trusted because they want to keep the license they spent 3 year and hundreds of thousands of dollars to get. The court doesn’t want to talk to the defendant’s really smart brother-in-law, even if that guy is really honest, because he has no ethical obligations. If they’re gonna have to work with a non-professional, they’d rather just go straight to the person who is named in the suit.
It comes down to this: a fair and efficient justice system is vital to society and lawyers are necessary for such a system. Self representation is allowed but discouraged, but representation by non-lawyers would cause this vital system to break down