Lawyers May Benefit from Re-regulation

• Publication year: 2021
• Author: David Majchrzak

Lawyers May Benefit from Re-Regulation

David Majchrzak

David M. Majchrzak is a seasoned ethicist, civil litigator, and certified specialist by the State Bar of California in legal malpractice law, is rated AV®-PreeminentTM by Martindale-Hubbell, and has been recognized in Super Lawyers. He is a shareholder, who works primarily out of Klinedinst PC's San Diego office, serves as the firm's Deputy General Counsel, and chairs the firm's writing committee and attorney training college. Mr. Majchrzak represents clients in matters involving attorney and law firm risk management, discipline defense, and legal malpractice claims. And he has served as an expert on legal ethics issues.

At a time when the profession is looking at an increasing number of changes and experiments throughout the country, including an anticipated sandbox that will come to California, it may also be time to revisit some of the general notions that have been unchallenged for years. The raison d'etre for the State Bar Act and the Rules of Professional Conduct is to protect the public and the integrity of the justice system. But it is unclear whether the current regulations exclusively serve these goals, and whether some of them do so at all. On the heels of recent revisions, perhaps it makes sense to take yet another look.

In 2018, the current version of the California Rules of Professional Conduct (notwithstanding a few amendments since) became effective. That same year, California had been studying in earnest the impacts that lawyer regulation may have on the use of legal services. The ability to engage a trained and skilled professional has often been associated with the broader concept of access to justice, with the reasoning that the complexity of litigation procedures may preclude persons, absent assistance, from addressing issues regarding their rights and obligations. Notably, to date, the primary lens though which the problem has been addressed is by looking at how to provide services, rather than simplifying the procedures.

Several proposals have received fairly vocal responses in opposition by members of the lawyering community. For example, some people have opined that introducing paraprofessionals as standalone provider options in certain practice areas creates a chance that clients will receive incompetent services. Others have opined that providing the opportunity for nonlawyers to have an ownership interest in law firms could risk an assertion of improper influence on lawyers' independent judgment. There are responses to these, of course, including through the experiences of other jurisdictions who have implemented models addressing these concepts. But, again, the discussions have primarily focused on very discrete elements of legal services regulation that are perceived to impact the affordability of services.

Perhaps, however, there could be value in looking at how the profession is regulated in the...