The Common Scold

The Common Scold is named after a cause of action that originated in Pilgrim days, when meddlesome, argumentative, opinionated women who displeased the Puritan elders were punished by a brisk dunk in the local pond. Believe it or not, the tort lasted until 1972, when State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 (N.J.Super.L., Jul 13, 1972) pretty much put it to rest. But the thought of those feisty women, not afraid of a little cold water, has always cheered me up and inspired me. I first used the moniker as the name of my humor column at the University of San Francisco School of Law many moons ago, and revive it now for this blawg!



Paralegal Amen! To Carolyn Elefant's very thoughtful and pragmatic rant on My Shingle, chastizing the Illinois bar for attacking We the People, a legal document preparation service.

I have always been outraged about the California bar's often-over zealous paranoia about "UPL" (unauthorized practice of law) -- and attacking efforts by paralegals and others to help out the underserved. (Nolo has long been a strong advocate for these types of services). Or the Texas bar establishment's attempts to run the Quicken folks outta Dodge.

Of course, always under the self-righteous flag of "consumer protection."  Ohhh please. Get real. Lawyers can't AFFORD to service most of these folks. Routine uncontested divorces and minor bankruptcies don't justify an hourly rate that will generate a profit. That's the real irony. Attorneys can't charge enough to make it worth their while.

You wouldn't believe how many hours I spent in the '80s and '90s sitting through endless angst-ridden committee meetings of San Francisco Bay Area bar groups, and/or various Cal bar entities wrestling with this issue.

Instead of wasting all that time and energy worrying about UPL, why not help the paralegals? Instead of fretting that somebody might miss a critical detail, how about setting up guidelines, and/or donate pro bono hours to be "on call" to answer questions from (or mentor) these folks. Or, as Carolyn suggests, create some MP3 files that clients could download. Work with them, not against them.

No matter how you cut it, trying to attack paralegals and document services just comes across as monopolistic. And as Elefant suggests, if you help folks with the easy stuff, they will come back with the cases and matters that count (and pay).

2/25/05 Update: f/k/a's David Giacalone offers some more examples here.

February 23, 2005 | Permalink


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Tracked on Feb 24, 2005 12:41:25 PM

» carolyn and monica join the ULP posse from f/k/a
After almost two years with no one to cover my weblogging backside on the issue of UPL, it is thrilling to see [Read More]

Tracked on Feb 24, 2005 9:00:49 PM


Great comments Monica. I agree wholeheartedly.


Posted by: Al Nye | Feb 24, 2005 3:32:31 PM

In October I wrote a piece about how the UPL abuses and guild protections actually make the BPP's a safer alternative for consumers:

But that's because the attorneys here in New York are extremely jealous of ever tiny little thing. I've heard landlord lawyers in Housing Court accuse activists of practicing law because they told a pro se tenant to get a second opinion from a tenant lawyer before signing a one-sided stip.

It is a real pleasure to see that somewhere out there are a few attorneys like you guys who think the monopoly is harmful.

Posted by: Ronin Amano | Mar 7, 2005 7:40:26 PM

The Texas Bar's beef with Nolo, et al. was over the disclaimers of liability. Bottom line was either be responsible for the advice you are giving or don't give it.

You should note, in all fairness, that almost every county law library in Texas has a copy of the Nolo do-it-yourself divorce kit for the librarians to point pro se's to when they come in looking for free legal advice.

Posted by: None | Mar 16, 2005 3:01:32 PM

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