Nonlawyers Influencing Lawyers: Too Many Cooks in the Kitchen or Stone Soup?

Abstract

In NonLawyer Influencing Lawyers: Too Many Cooks in the Kitchen or Stone Soup?, __ Fordham L. Rev. __ (2012), I argue that the current U.S. rules and regulations governing nonlawyer investment in claims epitomize the U.S. legal profession’s closed stance on nonlawyers influencing lawyers’ work and on collaboration between and alliances among lawyers and nonlawyers. The article starts with the premise that although law is not only a business (in that lawyers are fiduciaries to their clients), the law market cannot be insulated from capital markets. Because this is true, and because what happens in other parts of the world invariably affects what happens in the United States and the ability of U.S. lawyers to continue to profit, there will be strong pressure for the U.S. to allow investment in claims in all 50 states and to a larger degree than allowed now. Although the Bar may be able to resist for some unpredictable but possibly significant time period, I contend it should not – that lawyers as well as clients would benefit by allowing alternative litigation funding in the commercial context and managing the transition in order to maximize benefits and minimize potential risks. Utilizing outside investment in claims as an example, I also seek to demonstrate a larger point than simply the “train has left the station” in other parts of the world (or the importance of “being at the table”) with respect to alternative litigation funding, and that is that more influence by nonlawyers in general could result in a positive good. It could lead to much needed innovation in how legal services are provided and managed and it could enhance problem solving and efficiency. Therefore, instead of equating to "too many cooks in the kitchen," a certain (regulated) level of influence or sway by nonlawyers may help create the richest stone soup possible.