KNOW OUR HOUSE IS ON FIRE?
THE ABA BAR LEADERS’ CONFERENCE IN HOUSTON
AND FROM SALISBURY STREET
BY MARK FINKELSTEIN,
PRESIDENT, TENTH JUDICIAL DISTRICT BAR
LAWYERS ARE so focused on clients
and family that we may not see huge changes afoot. If we do not work in Association
with each other to manage the ever increasing speed of change in our profession,
the change will come in a form contrary to the public interest and the
interests of our clients.
In 2007 our British colleagues lost the privilege of
self-regulation. Barristers and solicitors are now regulated by the Legal
Services Board which is appointed by the Minister of Justice, dominated by
non-lawyers and chaired by an engineer.
This utter loss of bar control occurred because the British bar
was as out of touch and inactive as we are in North Carolina today. Strangely
enough, I did not learn of this turn of events in the UK until February 2015
when I attended ABA meetings in Houston as your president.
Non-lawyers have long been able to own law firms in Europe.
Accountants and lawyers are often practicing under the same business roof
there. Washington, D.C. now has similar rules allowing non-lawyers to own
interests in law firms located in Washington. What are these evolving rules
likely to look like in North Carolina?
The Supreme Court of Washington State has issued rules creating
the Limited License Legal Technician. Domestic law Limited License Legal
Technicians will be permitted to file approved form divorce complaints on
behalf of their customers without the supervision of any lawyer. Did you know
that a huge percentage of Wake County residents seeking a divorce cannot afford
a lawyer, and many others rely on the Internet for ‘‘advice’’ to ‘‘save money’’?
Are we reacting wisely to this crisis in the connection between lawyers and
those who need our help?
Please consider these two ‘‘reactions’’ to the increase in pro se
litigation and the perceived separation between the interests of lawyers and
those of the people we are to serve. First, the North Carolina Dispute
Resolution Commission has declared it unethical for a mediator to draft a mediated
settlement agreement if the parties reaching the mediated settlement are pro se
--- as they more often are today than ever before. Second, even though an
increasing number of North Carolina residents cannot afford legal advice, some
legislators are proposing to raise the cost of legal representation by
requiring lawyers to collect sales taxes from their clients.
I doubt many of us have fully considered the implications of sales
tax on the affordability of legal services for our clients. Have we considered
the implications of sales tax collection on our staff, our practice, and our
confidentiality obligations as lawyers? Let me guess; your legislators don’t
even know whether you care about these issues, do they?
Capital Associated Industries, Inc. has caused a lawsuit to be
filed in the Middle District of North Carolina and has caused legislation to be
introduced in the North Carolina legislature allowing trade associations to
practice law representing individual members in legal proceedings. Many trade association
members are competitors in the same industry. Have we told our legislators
about the potential conflict of interest, ethical, antitrust and consumer
protection issues that could arise if trade associations were permitted to
practice law in this way?
Not long ago, the Wake County Superior Court Clerk’s Office had to
ask the Wake County Bar Association to provide basic office supplies such as
paper and pens because the courthouse had depleted its supply of these
necessary items. Did you know that Wake County civil court sessions are sometimes
canceled because there are insufficient funds to pay for court reporters?
Inflation-adjusted wages for court personnel has declined 7% in recent years.
It is more difficult to retain well trained employees when wages are low. As a
result, the attrition rate in Superior Court Clerk’s offices has increased by 65%
over the past 5 years. This turnover results in a less efficient court system
and lower quality justice.
While North Carolina is the ninth most populous state, we are now
the third lowest in spending on the judicial system. Good government
organizations suggest that states should spend approximately 5% of their
budgets on the Judicial Branch of government. North Carolina’s spending on the
Judicial Branch has slipped from 3% of our budget to about 2% at a time when
overall budget growth has been relatively slow. Adequate funding for our courts
is both a constitutional imperative and a practical necessity.
If we do not inform our citizen legislators about these challenges
to our profession, they will not have the information they need to legislate
wisely. Then we, like our British brethren, will have no one to blame but
We must embrace change, not ignore it and thereby get steamrolled
by it. Your Bar Associations are key resources for embracing changes that
improve efficient representation of clients while preventing changes that
damage the public and the rule of law. Email your legislators today. Thank them
for their service and let them know your thoughts on these important issues.
Register to help with the Bar Association’s Legislative Action Center here: http://cqrcengage.com/ncbar/home
Start here if you need help finding your legislators’ email
Despite the challenges, I would not bet against us given lawyers’
character for resilience and an
Environment of technological improvement. WBF