Cal. Litig. 2020, Volume 33, Number 1

The Future Holds Many Possibilities

Ideally, reregulation would come with some big bold moves from the current structure that would allow more flexibility both for current licensees and for new legal service providers. Indeed, limiting restrictions helps clients by making it easier for lawyers to serve them.

One need look no further than some of the outdated concepts in Rule of Professional Conduct 5.4. No justifiable reason exists to preclude a lawyer from providing services in a state they are licensed in to a client in that licensing state simply because the lawyer is physically located in another state. It essentially prohibits lawyers from telecommuting if they live across a state border at a time when case law has fairly universally concluded that where a lawyer is located does not necessarily determine where the lawyer is practicing law.

Similarly, the same rule precludes fee sharing with non-lawyers or permitting a non-lawyer to act as an officer or director. The only reason for such a rule is to avoid the potential interference by non-lawyers with the professional judgment of lawyers when providing legal services. But the concept could be simplified to just that — lawyers shall not allow non-lawyers with whom they share a professional or financial relationship to interfere with the lawyer’s professional judgment in providing legal services.

To the extent that the lawyers elect to partner with non-lawyers or employ non-lawyers in leadership positions to obtain greater financial efficiencies, clients would potentially benefit. For example, a non-lawyer may bring special business acumen or technology to a law firm that allows operations to run with lower total costs. That means that the legal services could be provided at lower costs. The reality is that lawyers get paid from profits. And the legal services industry, just like in any other, is impacted both by income and costs. If an individual can move the bottom line, whether because of increasing revenue (such as a rainmaking lawyer might) or lowering costs (such as an experienced chief operations officer might), she adds real value.

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