Imagine a world in which you call AAA for roadside assistance after a fender bender and you can ask to be transferred to a lawyer to help you with your insurance claim. In their article, Auto Clubs and the Lost Origins of the Access to Justice Crisis, Nora Freeman Engstrom and James Stone bring back a past when this was reality and offer a vision for a future in which not only drivers but also others in need of legal services can find a fast, effective, and inexpensive solution to their problems.
Engstrom and Stone trace the origin of the contemporary unauthorized practice of law rules to disputes about auto clubs, staffed with lawyers, who helped members with an array of legal problems related to cars and roads. They draw on archival material to bring the reader back to a very different legal landscape. It is not always easy to use history in legal scholarship. If you aren’t engaged in an originalist interpretation of the Constitution or a statute, it is often not entirely clear how history can be relevant to a contemporary legal problem. The story that Engstrom and Stone tell, however, is so clearly useful. It helps expose the strict unauthorized practice of law rules as a contingent product of a self-interested bar interfering with the market, not a benevolent effort to protect the public from inept lawyering. By unearthing this dispute, Engstrom and Stone not only expose the selfish motivations behind the rules but also help us imagine a different future. By painting such a vivid portrait of a lost era of law practice, the authors make our contemporary approach seem less natural and inevitable, freeing the reader to follow a more creative path to the future of the profession.
The automobile, invented in the late 1800s, transformed the social, cultural, and natural landscape of the country. As the authors explain, cars were part of a general transformation from the rugged individualism of an agrarian past to a more interrelated world in which individuals were forced to rely on one another. Auto clubs emerged in the late nineteenth century amidst this shift both to lobby for better highways and road regulations and to protect the legal rights of drivers. In addition to roadside assistance, free maps, and travel advice, members’ dues entitled drivers to legal advice. Some clubs operated like law firms with salaried lawyers on staff. Others contracted with outside lawyers who would help members when they encountered legal problems. The clubs provided an array of legal advice about regulations and liability. Some defended members when they were accused of auto-related crimes.
The auto club lawyers protected the rights of their members and the public safety of the roads more generally. As an early example of impact litigation, auto club lawyers even used individual cases to help secure the rights of motorists. Engstrom and Stone unearth an example in which the auto clubs helped individuals fight tickets from speed traps, exposing a corrupt alliance between magistrates, local police, and politicians. Auto club lawyers also did investigatory work for prosecutors and even engaged in public prosecution of wrongdoers. Their approach to civil claims resolution was complex and often involved informal negotiation, and arbitration. The legal work spanned personal injury cases, complaints against mechanics, and low-dollar property damages.
Bar associations soon took notice and began to mobilize to protect lawyers from competition. Unauthorized practice of law rules had been around for decades, but they were largely unused until the mid-1920s when lawyers reinvented them to protect their turf. While the definition of the “practice of law” was contested, these rules had never been used to go after duly licensed lawyers for practicing law. Yet, Engstrom and Stone explain how the bar refashioned the rules to prohibit lawyers who worked for an organization that provided non-law-related services from practicing law, what we would now call multidisciplinary practice or nonlawyer ownership of law firms. This effort on the part of the bar was a direct response to the growing popularity of auto-clubs and other similar arrangements, like bank lawyers writing wills for customers. The concern was not nonlawyers practicing law but rather innovative working relationships, which we would now call multi-disciplinary practice.
In the late 1920s and early 30s, bar associations invented the idea that the obligation of lawyers to their clients should be direct, that the involvement of or even their proximity to the delivery of legal services could corrupt the sanctity of the bond and undermine the lawyer’s . In 1930, the American Bar Association introduced a canon stating that lawyers’ work should never be controlled by a lay agency or organization. Shortly after this, it constituted the “Committee on the Unauthorized Practice of Law,” whose mission was, in part, to shut down auto clubs and similar organizations that provided legal services to the public. State bars soon followed suit. The auto clubs won the battles in some lower courts because the bars did not introduce any evidence that consumers were harmed, a fact that was reiterated later as these cases made their way to the Supreme Court.
While the Supreme Court cases are better known and occupy pages in professional responsibility casebooks, they take on a new light after reading the history of the battles. While the Court in the 1930s drew on the First Amendment to protect the ability of some of these organizations to provide legal services to their members, bar associations did not back down. They continued to push the limits of these rulings. And as the authors point out, the auto clubs were already lost in the dustbin of history – a potentially efficient way to provide legal services now a casualty of the bar’s self-interested campaign. Under the pressure of state court injunctions, corporations and organizations largely gave up on providing legal services to their members. By 1938, just a decade after the bar had launched its campaign against the auto clubs, the authors explain that it was largely accepted that corporations cannot practice law.
Engstrom and Stone chronicle how the bar waged this war in state after state, how the successful crusade against auto clubs was used as a roadmap to pursue banks, realty owners’ associations, title companies and other organizations. The litigation not only crippled this efficient approach to the delivery of legal services, it resulted in the birth of the inherent powers doctrine and solidified the control of courts over lawyer regulation. This side-effect of the bar’s efforts gives a glimpse of how a more publicly accountable form of lawyer regulation could have emerged. The possibility inspires the reader to imagine a more accessible and affordable profession and a starkly different market for legal services. By demonstrating how the turn to courts as primary or even sole regulator of the profession was a chance result of the bar’s self-interested effort to dismantle competition rather than an inevitable part of the American legal system, Engstrom and Stone masterfully open up the possibility of more creative approaches in the future.
The authors end on a familiar note – the expected last section of a law review article with lessons learned and a path forward. But what makes this article so exceptional is that the history has truly changed the readers mindset by the time they reach this final part. States are currently experimenting with new ways to provide legal services, throwing away restrictive rules and reinventing the meaning of the unauthorized practice of law. By providing the history of the auto clubs in such detail, Engstrom and Stone have made these efforts seem not only possible but also necessary. The access-to-justice crisis is not a natural consequence of American capitalism, it is, in fact, the opposite – a result of a desperate and selfish bar’s effort to interfere in the market with no proof that doing so serves any real public good. Given this understanding, state bars have the obligation to address this problem and seek to unravel the web of restrictions that have given rise to it
