CBA Record July-August 2022

could be changed into a commodity. The first sentence of Comment 1 to the Rule states: “The practice of law is a profession, not merely a busi ness.” Nevertheless, the transforma tion of the of the bar from a learned profession to a business was a major development during this period. Also reflecting this evolution was legislation allowing nonlaw yers to invest in law practices. Although forbidden in most states, it is permitted in a few jurisdictions, and private capital has already invested in some practices. In 1968, you either were a lawyer and could practice law or you weren’t. There was no in between. While in some prac tices legal secretaries were trained to perform ministerial legal functions, the position was not formalized. Over time, two developments have changed this. First was the creation of the position of para legal or legal assistant – a trained para professional often specially licensed by the state and generally working under the supervision of a lawyer. The ethical stan dards of this position are often formal ized under state statute and under Rule 5.3 – Responsibilities Regarding Nonlawyer Assistance. The second was the creation of the position of nonlawyer paraprofes sional who is authorized by statute to prac tice law in certain limited areas – generally those in which the poorly represented population is involved (e.g., landlord tenant, consumer debt). A few states have experimented with this position. One major rationale for creating the nonlawyer paraprofessional is to provide advice and representation to the under

today’s graduates. Law firms were relatively small, and practices were local. A high-tech office had an electric typewriter. Communica tion was slow. Unless you worked for a very large firm, legal research entailed travelling to a major library. And, most importantly, you were a member of a profession and were expected to act as such. As a young member of the CBA Professional Responsibility Committee, I recall the committee analyzing the peti tioner’s questions against the appli cable code of conduct, but also asking – does the proposed conduct “bring the legal profession into disrepute.” What might “bring the legal profes sion into disrepute” included many of the activities referred to above. As previously stated, practices such as advertising, sale of a law practice, aggressively searching for business and the current system of con necting with clients over the internet would not have even made it onto the agenda of acceptable topics for consideration. What has changed for lawyers is what has changed for the rest of society – the gatekeepers are disappearing. Given the open nature of the internet and the acces sibility of social media, almost anyone can say almost anything without editorial con trol. The control of the agenda by an elite group of lawyers is gone. Ideas generated by the bulk of the bar can at least make it up for discussion – and may even become part of the rules the regulate theprofession. The most interesting conclusion to draw from this review is that the legal pro fession – as an institution - has recognized how practical realities of the legal system and the demands placed upon lawyers have evolved over the past 50-plus years. The rules of conduct have been adapted to reflect these changes and have opened the practice of law to business models required for survival in the 21st century.

represented population at an affordable price. A sizeable percentage of the public have legal problems but cannot afford to retain counsel at current costs. They are forced to go without representation or qualified advice. A lower cost provider of limited legal services would ameliorate this problem. Serving the underserved population is also one of the rationales to allow nonlawyer investment in law prac tices that encourages capital investment for this purpose. Providing legal service to the underrepresented community is a growing concern among bar regulators. As you can see, the rules regulating the bar – which to a large extent are formu lated by the organized bar – evolved over the decades to reflect what was actually happening in the practice of law. But at the same time, the nature of the organized bar was changing. Since 1908, when the ABA first promulgated the Canons of Ethics, the gatekeepers of the bar – those lawyers who determined what was and was not acceptable behavior for lawyers – were the self-identified “elite” lawyers. In some communities they may have been from old, established families; in others,

partners of major law firms. Through their influence they were able to control the agenda of dis cussions on items related to regula tion of the bar. If you gradu ated law school in 1968, your con cept of a law prac tice would have been very differ ent from that of

John Levin is a retired Assistant General Counsel of GATX Corporation and a member of the CBA Record Editorial Board.

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