Lawyers Trying to Strangle Alternative Legal Advice

In theory, the state requires licenses for those who engage in dozens of professions and occupations to protect the public.

After all, one doesn’t want just anyone performing surgery, designing office buildings or bridges or even teaching young children. Imposing training standards, followed by competency testing, ensures the public that those who provide services are at least minimally qualified to do so.

There is, however, a darker side to California’s licensing system. It gives licensees monopolies over specific services defined by the Legislature.

Therefore, who is legally authorized to provide what service is ultimately as much a political issue as one of professional competency. No session of the Legislature is complete without at least one “scope of practice” battle.

Most commonly, conflicts occur in the medical field. In the past, they have included podiatrists against orthopedic surgeons over the legal right to operate on the ankle; psychologists versus psychiatrists over the right to prescribe drugs; oral surgeons against plastic surgeons over facial surgery, and opticians versus optometrists over eye care.

Some scope of practice battles have been semi-comedic episodes as well, such as veterinarians battling dog groomers over who had the legal right to brush canine teeth and doctors against colonic clinics over who could inject cleansing liquids into the alimentary tract.

Scope of practice conflicts, however, are not confined to medical issues and a doozy, involving the practice of law, faces the Legislature in the final month of its 2022 session.

A few years ago, the Legislature issued a long-overdue redefinition of the State Bar, the agency that licenses lawyers. For decades, it acted not only as a regulatory body but, in essence, as a political lobby for the legal profession. The Legislature abolished the latter function and directed the State Bar to become more diligent about protecting the public’s interest in getting competent and affordable legal advice.

Accordingly, a more consumer-oriented State Bar has been exploring alternative, lower-cost ways of providing legal services. But that has disturbed legal licensees, particularly Consumer Attorneys of California, the lobby for lawyers who specialize in personal injury lawsuits.

It and other lawyer interests have persuaded Assemblyman Mark Stone, a Santa Cruz Democrat who chairs the Assembly Judiciary Committee, to insert some language into the annual bill reauthorizing State Bar dues that, in essence, forbids the State Bar from studying legal services that are not confined to licensed attorneys.

Stone and other advocates say they just want the State Bar to concentrate on cracking down on bad lawyers. However, opponents of the bill, now pending on the Senate floor, say that the current system often makes it impossible for ordinary citizens to get needed legal advice.

The opponents have state Supreme Court Chief Justice Tani Cantil-Sakauve on their side. During a presentation last month to the American Association of Law Libraries, the soon-to-retire chief justice faulted the Legislature for attempting to strangle alternative legal services.

Noting that the Supreme Court had authorized the State Bar’s studies and citing programs in other states, Cantil-Sakauve said, “But the legislature has just now, at least written in statute, the inability to proceed with that. And that bill was lobbied by the lawyer groups in California, who went to the legislature and want this to slow down because of their concern.”

The State Bar is merely studying potential alternatives. Any changes would have to be approved by the Legislature. So why should lawmakers shut down the studies now?

The obvious answer is that lawyers don’t want any competition, even though it’s also obvious that expanding access to routine legal services would fill a void.

About the Author

Dan Walters has been a journalist for nearly 60 years, spending all but a few of those years working for California newspapers. He began his professional career in 1960, at age 16, at the Humboldt Times. For more columns by Walters, go to calmatters.org/commentary.