Nora Freeman Engstrom Stanford Law School, and James Stone, at 2023 graduate of Stanford Law, have posted Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, which is forthcoming in the Yale Law Journal:
In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput.--Dan Ernst
Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all.
Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.
