Mimesis Law
12 November 2019

How Whiter Teeth Could Destroy Bar Associations

Mar. 3, 2015 (Mimesis Law) — Whiter teeth or work for lawyers?  That’s the question being asked following the Supreme Court opinion in North Carolina State Board of Dental Examiners v. FTC, which had nothing whatsoever to do with lawyers, and yet everything.  Shivers are running through the officers of those state bar associations charged with keeping the guild holy.

Lawprof Kate Levine offers the synopsis:

[T]he Supreme Court ruled that North Carolina’s dental board could not restrict non-licensed teeth-whiteners from beautifying North Carolinians’ smiles.  This case may have more impact on lawyers, and particularly bar associations, than you might think.  The Court relied heavily on an earlier ruling holding that bar associations, who used their UPL rules to prevent nonlawyers from providing “legal” services, came under the ambit of the Sherman Act.

Bar associations are certainly run by “market participants” in the practice of law, or what we prefer to call lawyers, generally with no “supervision” by the government.  We are, if nothing else, defining who gets to play in our little world. Whether we like to admit it or not, telling those wannabes who couldn’t be bothered to get their J.D.’s that they don’t get to do lawyerish stuff protects our special turf from the barbarians.

Of course, it also protects the public from shingle-hangers lacking our mad skillz, as proven by enduring three years of theory and a test that is learned in a few weeks after law school is over and we’ve duly forgotten everything we were taught.  Any lawyer worth his or her salt can muster a sufficient argument about why we, and not they, are entitled to the monopoly of being entrusted with other people’s lives and fortunes.

Is it true? Do we really deserve the adoration we so crave?  Well, that’s subject to debate.  As we may be inclined to admit after the third scotch, much of what we do doesn’t require too much law-talking stuff.  Indeed, at the low-end of the spectrum, much of it is filling in blanks, which is why we have our secretaries and paralegals do it now. Don’t worry, I won’t rat you out.

And yet, lets not be too hasty in whitening over the Unauthorized Practice of Law.  There is not only great virtue in having studied the law, and gained the experience of practicing it, but there there are huge pitfalls when it comes to comparing a tooth whitener to a lawyer.

The downside of a lousy tooth whitening job is, well, less than white teeth.  Unpleasant, perhaps, but hardly irreparable.  If, on the other hand, some goofball prepares a simple will as so many use as an example of things non-lawyers might do, will he be there when the mistake of including a now-divorced son-in-law as co-executor (“but he knows about the stock market”) comes to light?  The list of potential bad choices on so simple a document is obvious to lawyers, but it’s unreasonable to expect a non-lawyer to have a sufficient appreciation to know when to say no.

My speculation is that 80% of the time, basic drafting by a somewhat knowledgeable non-lawyer will produce no real harm, even if it fails to produce the good expected.  Then again, the notion that people will get inexpensive legal services out of the deal may cause a lot of people to take that risk.  But that leaves 20% of the public at risk. Sometimes, the risk will be disastrous, and no one will know until the time comes whether they fall into the 80 or 20 percent.  Is the risk of being a cheapskate still worth it?

Yet, the Supreme Court’s ruling may leave us with little choice.  Worse yet, law, unlike dentistry, lacks the clearly defined parameters that would enable us to easily pass off some of our duties to non-lawyers, while keeping the really cool and valuable ones for ourselves.  What of the pro se custody litigant who hires a consultant who appears to know all the legal words and most of the forms?  Better than pro se, but with the life of a child at stake, not really good enough. Now ask yourself how much of what you do could be done by your esteemed colleagues in the Big Four or that hot-shot Legal Tech startup.

This is dangerous territory, both for lawyers and for the public.  Good arguments can be made both ways, and danger abounds no matter what assurances are offered about hard work and zeal.  Lawyers aren’t always very good at it, and there is no reason to believe non-lawyers will be any better.  But hey, at least we can all afford to have whiter teeth while watching the heathens scarf up the bread and butter work.

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