abstract. In the early 1900s, the country’s 1,100 auto clubs did far more than provide the roadside assistance, maps, and towing services familiar to the American Automobile Association 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 harms. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed numerous lawsuits, 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.

Drawing on thousands of pages of archival material, this Feature recovers the lost history of America’s auto 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, rather than 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 helped consign 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 the American Bar Association’s Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs—not because they harmed members, but 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—is not a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.

authors. Nora Freeman Engstrom is the Ernest W. McFarland Professor of Law at Stanford Law School and Co-Director of the Deborah L. Rhode Center on the Legal Profession. James Stone is a law clerk in the United States Court of Appeals for the Eighth Circuit and a 2023 graduate of Stanford Law School; the views expressed in this piece are his own and do not reflect the views of his employer. We are indebted to Kenneth S. Abraham, Graham Ambrose, David Freeman Engstrom, Lawrence M. Friedman, Robert W. Gordon, Bruce Green, C. Scott Hemphill, Amalia D. Kessler, Bernadette Meyler, Robert L. Rabin, Lucy Ricca, Laurel A. Rigertas, David Alan Sklansky, Todd Venook, Garrett Wen, John Fabian Witt, and Adam Zimmerman for their helpful comments on previous drafts—and to the Rhode Center Fellows, the students at the Stanford Legal Studies Workshop, and those at the Yale Law School Faculty Workshop, the Stanford Law School Faculty Workshop, and the NYU Law School Faculty Workshop for their helpful comments on previous drafts. We are also grateful to the many archives and archivists who assisted us with this project. These include Matt Hocker and Amoi Goldman of the Antique Automobile Club of America Library and Research Center, Morgan Yates of the Automobile Club of Southern California, and Eric Johnson-DeBaufre of Trinity College, as well as the staff at the Henry Ford Museum, the Stanford Law School Library, and Yale University’s Beinecke Rare Book & Manuscript Library. Finally, we are grateful to the countless court staff who helped surface vital cases’ dusty files, including James Barrett Smith in North Carolina, Andrew Smith in Rhode Island, Matt Rousey and others at the Illinois Supreme Court, and Stephanie Smith at the National Archives at Kansas City.

Introduction

On January 7, 1930, a surprisingly balmy New York day just three months into the Great Depression, the American Automobile Association (AAA) convened a board meeting at the Hotel Pennsylvania to discuss a curious development.1 A handful of the AAA’s local affiliates had suddenly started getting complaints about some of the services they offered their members. The complaints, though, were coming from a surprising place: those protesting were not disgruntled members, but rather, disgruntled lawyers.

On what had these local lawyers soured? Surely not the touring advice the auto clubs doled out to members, nor their roadside assistance, published maps, or towing services. Instead, lawyers and local bar associations had suddenly taken issue with auto clubs’ legal departments.

It may come as a surprise that AAA affiliates even had legal departments. Today, after all, such departments are long forgotten. But at the time, legal work comprised a sizeable chunk of auto clubs’ member services. Teams of (usually salaried) lawyers occupied entire floors of auto-club headquarters, running what amounted to bustling law firms for all things auto. Ticketed for speeding and unsure whether to contest the fine? Just call your auto-club lawyer for free advice. In a car accident and interested in suing the other driver for negligence? Club lawyers could settle the case or even represent you in court. Arrested for reckless driving? Club lawyers would defend you—and might even file and argue a habeas petition on your behalf. Charged after killing someone in a collision? Some clubs would even represent you for auto-related felonies, up to and including manslaughter. And eager to land a drunk driver, abusive cop, or car thief in prison? Some clubs would provide you with a lawyer for your own private prosecution.2 All of this was covered by clubs’ annual membership dues. And all of it was sparking sudden, if not yet thunderous, protest from the bar.

At that January 1930 meeting, the AAA appointed a “special committee,” composed of the heads of some of its clubs’ biggest legal departments, to investigate.3 The committee of ten went to work and put the finishing touches on their comprehensive report a year later, in March 1931. At that time, complaints remained a quiet murmur: of the eighty-four clubs that the committee had surveyed, only four had fielded complaints from their local bar association, and only twelve had reported that “individual lawyers had registered a complaint.”4 Moreover, of the few objections, “[n]one . . . seem to have been pressed after the club service was explained.”5 After all, who could argue that the clubs’ legal services, once clarified, were not of value, not only to members but to the entire motoring public? Still, the fuss left the committee frustrated:

[T]he unfavorable attitude of the bar serves to cast serious aspersion upon the ethics and legitimacy of the practices of the automobile clubs and the character and standing of the lawyers who serve them. It is intolerable that these associations, including in their membership as they do citizens of unimpeachable character and reputation, should permit their practices to be impeached as shady, or below the standards of the legal profession, without demanding that such aspersions be brought out into the open, thoroughly aired and debated in the light of day, and determined upon their merits.6

They would come to regret this invitation. Within a decade of the report’s publication, local bar associations had sued auto clubs’ legal departments into submission. After this onslaught, America’s auto clubs could no longer represent or advise their members on legal issues in almost any capacity. Indeed, as the Chicago Motor Club put it, “The sole result of the [bar]’s efforts . . . [was] to destroy.”7 Auto clubs’ legal departments, for all intents and purposes, were dead.

The bar’s triumphant campaign against the clubs’ legal services—driven mainly, we argue, by a spirit of protectionism induced by the Great Depression—would reverberate far beyond the auto clubs themselves. It would obliterate then-burgeoning group-legal-service providers of every stripe, stamping out a unique and socially valuable mechanism to deliver affordable legal services at scale. It would fundamentally alter the balance of power held by legislatures and courts when it came to defining and policing law practice. And it would plant other doctrinal seeds that eventually sprouted and grew into the country’s current, profound access-to-justice crisis. Recovering this fateful collision, this Feature unearths a history that shaped—and continues to shape—the legal profession and law itself.

This Feature unfolds in four Parts. Part I tells the untold story of America’s auto clubs. Drawing on voluminous archival material, we detail the rough, unregulated, and often calamitous landscape early motorists faced; sketch the many nonlegal services that auto clubs supplied; and catalog the wide array of legal services early auto clubs offered, which were hailed even by bar officials—the clubs’ eventual foes—as “of great convenience and value to many thousands of” motorists.8 Just as importantly, we show that the clubs supplied serious legal services. Not confined to speeding tickets or fender benders, auto-club lawyers handled complex civil and criminal cases from trial through appeal, up to and including habeas petitions and litigation in state supreme courts. And clubs did all this on a massive scale. Auto clubs brought and defended tens of thousands of car-wreck claims, represented thousands of motorists charged with felonies, and spearheaded prosecutions cutting to the heart of the corruption and graft that infected the early auto landscape. Stunningly, then, at a time when car ownership was skyrocketing, auto clubs furnished a form of affordable and wide-ranging legal insurance to hundreds of thousands of American families.

Part II traces the clubs’ fateful Depression-era collision with the bar. This Part shows that the organized bar’s relationship with auto clubs cooled just as the economy tanked. And it explains how the bar crushed clubs’ provision of legal services by plugging a newly minted (and counterintuitive) position that unauthorized practice of law (UPL) restrictions not only prohibited nonlawyers from practicing law, but they also prohibited fully licensed lawyers from furnishing legal services if those lawyers happened to work in “corporate” enterprises.

Then, Part III abstracts out to nest the bar’s crusade against auto clubs inside the bar’s simultaneous, larger (and ultimately successful) campaign to restrict many organizations from furnishing legal assistance to their members and customers. We show that, in the early years of the last century, auto clubs were not alone in their provision of legal services. Numerous for-profit and nonprofit organizations similarly delivered a wide array of legal services to ordinary Americans: banks drafted wills, unions helped injured members prosecute tort or workers’ compensation claims, and homeowners even created groups to fend off efforts at home foreclosure.9 The bar’s 1930s-era campaign targeted all of these arrangements and brought nearly all of them to a halt, fatefully consigning generations of Americans to seek legal services alone and on a one-off basis—or not at all.

Part III further shows how these same battles also cemented courts as the ultimate arbiters of legal-practice regulation. In state after state, it was in this context that a clear articulation of what we now call the “inherent-powers doctrine” was first articulated, as courts declared that they (not legislatures) had the final say over the definition and regulation of law practice. By wresting control away from more democratically accountable branches of government, the courts “staked a claim to self-regulation radically unlike that of any other profession” and created a conception of attorney regulation nearly entirely insulated from public accountability.10 This means, concretely, that would-be innovators wishing to push the envelope in the delivery of legal services cannot just lobby the legislature or appeal to the public; they must petition (lawyer-dominated) courts.11 It also means that, even as other professions have come to accept more affordable means of service delivery (e.g., nurse practitioners in the medical context), law—with its singular insulation from legislative action—has stubbornly resisted these reforms.12

Finally, Part IV steps back, finding in the auto clubs’ story larger lessons that deepen—and, in key ways, complicate—our understanding of the country’s increasingly controversial structure of legal-service regulation. In the grips of a profound access-to-justice crisis that sees roughly three-quarters of civil cases pursued or defended without the assistance of counsel and tens of millions of Americans locked out of the legal system entirely, many have come to conclude that the civil-justice system has “reached the breaking point.”13 In the course of this reckoning, many have also concluded that a thicket of laws that limit the provision of legal assistance contributes to the crisis and must yield.14 And that, in turn, has set off the most “dramatic reexamination” of the market for legal services “in decades.”15

In the course of this reexamination, numerous states are either experimenting with or weighing whether to experiment with a flurry of possible reforms. Indeed, activity within the past five years has been dizzying.16 Some states, including Alaska, Delaware, and New Hampshire, have relaxed UPL restrictions to permit nonlawyers to help individuals pursue certain kinds of claims.17Others, including Arizona and Utah, have relaxed Model Rule 5.4 to permit some nonlawyer ownership.18 And still others, including Colorado, Minnesota, and Oregon, have created special certification programs to permit some licensed nonlawyers to supply help.19 Additional states, including Michigan, Texas, and North Carolina, are actively considering whether to follow suit.20 And, in recent years, prominent nonprofits, including the National Association for the Advancement of Colored People (NAACP), have challenged UPL laws on First Amendment grounds, contending essentially that these laws impermissibly stunt their members’ constitutional rights.21

Yet, in the face of those efforts, the American Bar Association (ABA) has been steadfast in its resistance to change. In 2022, the ABA House of Delegates overwhelmingly passed a resolution doubling down on the current (restrictive) system of lawyer regulation.22 And, over the past two years, under extraordinary pressure from organized attorney coalitions, regulatory-reform initiatives in Florida and California fizzled.23 In opposing these initiatives, the bar, of course, insists that its motivations are pure—and that its opposition lies in the protection of the public.24

The auto-club story, we argue, directly and powerfully informs this ongoing battle for the future of legal-service delivery. It does so in three ways. First, we show that, by shuttering a once-thriving system that was providing affordable legal services to hundreds of thousands of ordinary Americans and, in the process, constructing the tangled regulatory architecture that continues to stunt meaningful efforts to address unmet legal need, the bar bears direct responsibility for the current access-to-justice crisis. Remarkably, a half-century ago, in a brief filed in the U.S. Supreme Court, the NAACP made a similar point. “Were it not for the early cases declaring group services unlawful,” the NAACP reasoned, “the most prevalent form of group [legal] services today might be those organized by special interest groups whose members have a peculiar need for legal assistance; e.g., automobile clubs.”25 Second, we assemble compelling evidence that restrictions on corporate law practice are not necessary to ensure adequate performance or to protect clients. This evidence directly undercuts the bar’s contrary claims. Third, and perhaps most startlingly, we show that the bar’s ban on UPL, which continues to block the effective delivery of affordable legal services, was not fashioned out of a desire to protect the public but, rather, grew out of the bar’s self-interest. In other words, the ban on nonlawyer assistance fueling our current and calamitous access-to-justice crisis has thoroughly rotten roots.