Lawyer as preventive legal health care provider
By Thomas D. Barton
Lawyers typically regard themselves, rightly, as problem
solvers and facilitators of transactions. Clients come to them either when some
dispute or legal difficulty has arisen or when the client has decided to pursue
a goal that requires legal analysis. In playing those two roles lawyers are
immensely valuable socially, both for the justice they secure and the commerce
they enable. American lawyers have built and operate every day a Rule of Law
system that is envied throughout much of the world for its integrity and
sophistication.
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Barton |
Lawyers potentially have more to offer, however, beyond
solving problems and facilitating transactions. Lawyers are well-positioned to
strengthen their preventive and proactive counseling role in ways that could
greatly benefit clients, society and the lawyers themselves. Currently, lawyers
are underused in this preventive/proactive role: People tend not to seek
counsel unless an immediate legal need is perceived, and even after a need clearly
arises, people sometimes wait so long before consulting a lawyer that
traditional legal methods become prohibitively expensive.
Both of these shortcomings could be addressed by lawyers sitting
down more often with clients for general counseling. By speaking regularly with
their lawyers even where no legal need is easily visible, clients could avert some
legal problems altogether. Other problems festering just below the surface could
be addressed successfully without resorting to costly procedures. Valuable
opportunities could be conceived and implemented, and the personal
relationships between lawyers and clients would deepen.
Finally, emphasizing preventive and proactive counseling
would help to redress a phenomenon that may be on the rise: Millions of
middle-class people suffer inadequate access to legal services even though many
attorneys have spare capacity to provide services — capacity that goes unused. That
sad trend, however, may reveal clearly that “Preventive Law” is an idea whose
time has come. Historically, clients and to some extent even lawyers have
resisted the preventive/proactive role. That is odd because when we think about
our physical health, we take for granted the need for periodic checkups.
Doctors routinely advise preventively about keeping up our
vaccinations, having proper nutrition and exercise and maintaining sanitary
environments. We also intuit easily that any disease or pathology left too long
will require far more intrusive treatment—treatment that, even if successful, may
leave us weakened physically and financially. Yet those same common-sense attitudes
do not prevail regarding our legal well-being even while lawyers, owing
to their training and experience, can foresee risks far in advance of the
client and can imagine valuable prospects for the client that otherwise would
never surface.
These ideas are neither new nor original to me. Louis M.
Brown, a gifted California lawyer and educator, developed the concept of
Preventive Law more than 50 years ago. He even analogized Preventive Law to
preventive medicine. He inspired other leading legal thinkers like Edward A.
Dauer and Forrest (Woody) Mosten to develop related concepts and practices about
legal services and methods, some of which have become standards within the
profession. Lou Brown’s kernel idea of improving the well-being of individuals and
society through regular, frequent and far-reaching conversations between lawyers
and clients still has untapped potential. Perhaps Preventive Law battles a
self-reliant streak in our culture that insists, “If it ain’t broke, don’t fix
it.” By developing stronger preventive/proactive skills and attitudes, however,
attorneys can help clients better understand that they do not always realize
when things are about to break, nor how even good things can be improved. The
resulting conversations can make the Rule of Law stronger and more affordable,
to the benefit of everyone.
Thomas D. Barton is a professor at California Western
School of Law in San Diego. Barton has published numerous articles and essays
dealing with legal and political philosophy, legal sociology, and problem
solving.