John Kindley, a young lawyer with some very strong libertarian political beliefs, took to the soapbox to challenge my assertion that many of the problems we face in the legal profession are due to a surplus of lawyers. His solution was to eliminate the barriers to entry.
The solution, contra Greenfield, is not to raise the barriers to entry, but to lower them drastically, by eliminating the artificial costs of becoming a lawyer and the artificial attractiveness and expectations of the legal profession associated with those costs.
Why are so many attracted to the law, leading to our society’s production of so many (some would say too many) lawyers? A major reason is that the lawyer still has a privileged and vaunted status in society, akin to that of doctors, while the 3 year law degree is far more do-able for more people than the education required to become a doctor. What if that vaunted status conferred by merely becoming a lawyer was eliminated by eliminating the current barriers to entry?
I’m also of the mind that law should be the province of the people and not of the profession. It’s a real problem when somebody without a lot of money is, for example, going through a divorce and needs representation. He or she should be able to afford such representation, but in our current system such representation can be almost or actually out of financial reach. That would be less the case if the barriers to the profession were reduced or eliminated.
Amongst the assumptions that John indulges is, as “already established on [Simple Justice] that law school does almost nothing to prepare law students for the actual practice of law anyway.” This is correct as to the practice of law, but needs to be distinguished from the understanding of law and the ability to think like a lawyer. While law school fails miserably to teach a person how to practice, it does an adequate job of teaching students about the concepts of law. It may not be sufficient, but it’s nothing to be sneezed at.
Adding to the mix, Jeff Gamso adds in a comment :
Say you have a legal problem. You want to sue someone or you’ve been sued or you’ve been charged with a crime. You can represent yourself or you can hire a lawyer or maybe get a public defender or court appointed counsel. But what if you’re smart enough to know better than to represent yourself but don’t want to spend (or don’t have) the money to hire a lawyer and (if it’s criminal) don’t like/trust the lawyer provided for you at government expense? You have no alternative. Why should that be?
If you look around and find yourself in that position and find yourself concluding that the smartest guy you know is your Uncle Fred, and if he’s willing, why can’t he represent you? You can represent yourself for godssake. Why can’t you choose a non-lawyer proxy?
Why not Uncle Fred? The argument to eliminate the barriers to the practice of law thus comes from two separate directions, that it would put an end to the status of lawyers, thus ridding the profession of those who engage solely for the purpose of accumulating wealth and social prominence (as if). By weeding out those who have no business being lawyers in the first place as well as the costs that drive lawyers to do foolish things, the problems caused by the surplus of lawyers will go away.
From the other side, we empower people to avoid the high cost of legal services, and put the choice back into their hands by allowing them to be represented by Uncle Fred (or Aunt Matilda for those inclined to see sexism under every rock). It’s their life, so why not let them make their own choices about who will speak for them?
Worthy of consideration at this juncture are calls that laws should be comprehensible by regular people, such that neither lawyers, nor a legal education, should be necessary to have a full understanding of what laws mean. While this point is somewhat different, in that laws are intended to guide and control the conduct of people, and it seems rather pointless to enact laws which fail to serve their purpose directly, the flipside is that too often no writing will be understood the same way by different people, and no writing is so absolutely clear and comprehensive as to cover every situation that people can devise.
Some very interesting ideas for radical change to the legal profession. Certainly more rebellious than the dream of teaching SEO marketing to lawyers. And fundamentally flawed.
We are all in agreement about the problems facing the legal profession, running the gamut of greed and deception to incompetence. This is why we have this conversation. But one approach seeks to elevate the profession’s quality and integrity, while the other would reduce it to the lowest common denominator. The result of the latter would be disaster.
Kindley belief is that by removal of barriers to entry, only the best would survive and thrive. Those who are now entering the law for the wrong reasons, status and money, would either lose their incentive and be relieved of their disincentive to move to another job, since they wouldn’t be burdened with enormous law school debt. His points are well taken, but don’t prove the libertarian Utopian position that meritocracy would reign supreme.
We have every bit as much of an opportunity for the best lawyers to be the ones with all the clients, with those lawyers lacking in skills being forced out of the profession for lack of business. This, of course, isn’t the case because clients don’t select lawyers based on merit. They are rarely capable of distinguishing the good lawyer from the bad, or even the mediocre, since they can’t ascertain strong skills from weak. A nice smile, empathetic words and firm handshake can be offered by the worst lawyer as well as the best.
Rather, we see that getting business has less to do with competence than with marketing, availability and price, the very things that detract from the quality and integrity of the profession. Eliminate the barriers and we will end up being an occupation of glad-handers, long on warm and fuzzy and short on substance. No one will be the wiser.
From the more practical perspective, imagine trials conducted by Uncle Fred. Now Nephew Billy thinks very highly of Uncle Fred and finds him to be the smartest guy he knows. The significance of this assessment can only be determined based on who Billy knows. If Billy hangs out with the wrong crowd, then Uncle Fred’s intelligence might be over-rated.
Let’s assume, for the sake of argument, that Billy is an innocent man arrested for a heinous crime. Uncle Fred defends. Fred has no idea about rules, or evidence, or voir dire, or cross-examination. He does his best, but falls short. Billy gets convicted and sentenced to death. Is society okay with putting Billy to death because Uncle Fred wasn’t up to the task? After all, Billy picked him to be his defender, and we respect Billy’s choice.
In a more mundane example, what about Uncle Fred preparing Billy’s Will. Uncle Fred’s ability to write with clarity is far better than Billy’s, but not quite up to the level of Legal Rebel, Ken Adams. Billy dies and no one is quite sure what the heck he wants done with the doublewide. What then? Perhaps Uncle Fred decided to make himself the primary beneficiary, not to mention executor, of Billy’s estate to the detriment of his 17 kids. That’s not good. Maybe Uncle Fred was never very good with commas, leaving the Will simply indecipherable. Do we rely on Uncle Fred’s post hoc explanation for what Billy intended? Uncle Fred, by the way, is a heroin addict.
While these examples are somewhat silly, they reflect some of the many problems that dumbing down the law would present. The problems would be vast, and as we realize that the law, based on its own application of entropy, would invariably become increasingly complex and convoluted, the absence of a group of people who are both educated in the law and qualified to engage in its practice would produce either anarchy or the demand for the recreation of the law as a profession. We’re back where we started.
The challenge here isn’t to adhere to any dogmatic philosophy. That John Kindley is a bit dogmatic is ably demonstrated by his aside that he is also in favor of tearing down barriers to entry to the medical profession. To make my point on why this may not be the best idea, I hereby offer to perform a colonoscopy on John for a very reasonable price.
Rather, the challenge is to reverse our course, off the path of law being more business than profession, and instilling in its practitioners the desire to excel and conduct themselves with the utmost integrity. To accomplish this, we need to address the surplus of lawyers competing with each other, sliding down the slippery slope of incompetence and disrepute with each new TV commercial, website, SEO marketing campaign and lie to potential clients about what they can guarantee, followed up by a warm smile and firm handshake.
We are not good enough. The solution is to be better. Much better.
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I don’t know about Uncle Fed but something equivalent to a Walmart associate would be more likely.
We should add that into the mix: Uncle Fred is a greeter at Walmart.
Wasn’t there a time, in our not too distant past, when law school was not a requirement to practice law. It seems to me that the legal system functioned then about as well as it does now.
Kinda sorta. There was a time when law school was not a requirement for taking the bar exam, and a would-be lawyer could instead clerk his way into the profession rather than study. But over time, particularly since WWII, I believe, It was felt that the law required more than mere clerkship in order to protect the public from incompetents, and law school became the rule and then the requirement in most states. So, law school was seen as the solution to the problem, but that was when there weren’t as many law schools churning out too many lawyers. And it was when lawprofs were teachers rather than scholars.
What is Billie’s priority? He’s price-shopping. Freddie won’t charge a nickel. Isn’t it what Billie wants?
Is it? Or does Billy want to pay for a Yugo and get a Cadillac. like so many other Walmart shoppers.
You mean Billie has to pay more for a Cadillac?!! How fair is that??
How did Billy become Billie? Are you trying to girlify him? And no Billy wants the Cadillac, and doesn’t even want to pay for a Yugo. This is America, dammit, and Billy is entitled to whatever he wants!
Consciously or not I imagined Billie as a trifling little person as a matter of character. A little Caesar. Full of his entitlements. I did not know there was such a word. Girlify.
Woo hoo! I made up another word! Am I on a roll, or what?
Let’s assume, for the sake of argument, that Billy is an innocent man arrested for a heinous crime. Uncle Fred defends. Fred has no idea about rules, or evidence, or voir dire, or cross-examination. He does his best, but falls short. Billy gets convicted and sentenced to death. Is society okay with putting Billy to death because Uncle Fred wasn’t up to the task? After all, Billy picked him to be his defender, and we respect Billy’s choice.
And let’s assume, in the alternative, that Billy gets assigned J. Carleton Bigglesworth IV, the fourth in a generation of Harvard-trained lawyers, who does a little IndigCrimDef as a sideline from the main focus of his practice, which is providing incomprehensible advice to C-level executives as to how to come right up to the profitable edge of violating securities laws and regulations without getting cut.
During the trial, while Fred would have been in there pitching and objecting and trying his amateur hand at lawyer stuff, JCB^4 mostly sits there, looking attentive with a skill that has been finely honed during endless hours of executive meetings, and simply seems to be there. His mind is really spinning about, seeing if he can remember if it’s his weekend with the kids, or if he’s supposed to take his mistress or alternate mistress out on the yacht . . .
. . .and, yeah, Billy gets convicted, too, and equally dead. He’s better off, well, how?
Let me give you another hypothetical: instead of choosing either of the two straw men we’ve put up, Billy finds some high school geek kid who says he wants to someday be a lawyer, and picks him. The kid can’t get through law school in the six months he’s got to prep for trial, but he can hit the books, and he does — he reads up on everything he can on legal procedure, on cross examinations, examinations in chief, on voir dire (hell, he even takes a turn trying his hand at improv comedy, down in his native Houston, and gets some coaching from a well-respected CDL who practices there), and all that, and talks some ancient CDL (the guy’s 32; from the geek kid’s POV, that’s three breaths or so from being clearly senile) to sit second seat, informally, and pass him notes.
Come the day of voir dire, the geek kid gets up on his feet, adjusts the pens in his pocket protector, and turns to the panel. “I’m not a lawyer,” he says, “but I’m just the kid who Billy asked to represent him in his trial. How do you folks feel about that . . . ?”
Is Billy really so much worse off than he is in either your hypothetical, or mine? Enough so that we’re not, as a society, comfortable with letting him make the call? If he makes it wrong, it’s not society that gets locked up until the execution.
Seriously, for a sec: I don’t really accept the barrier to entry argument, either.
So your example shows the problem with lawyers, but the question isn’t whether there’s a problem but how to solve it. Isn’t the better answer to improve the attorneys rather than dump them altogether? Your geek hypo is a little too far-fetched to put into the mix, since there’s no reason why a near-senile Houston attorney would second seat a non-attorney geek.
So relative to the point, if we have too many incompetent and unethical lawyers, do we get rid of lawyers altogether or get rid of incompetent and unethical ones? Or leave it to geeks who hang with near-senile Houston CDLs?
I’m certainly in favor of improving attorneys, and the ones I meta-hang out with — present company included — are so obviously concerned with doing things better that I don’t think they often state that specifically, for about the same reason that fish don’t talk about water.
(If I were writing it as a novel, btw, I’m not sure how I could set it up, credibly. Maybe the Houston attorney isn’t near-senile, or has been disbarred, but still has his skills, even if his ethics have been shown to be inadequate.)
But, looping back, it seems to me that as a matter of principle, Billy should get to choose, even if he won’t necessarily choose wisely, he’s the one who has the greatest stake in the consequences of his choice, after all.
Personally, I’d like to see the apprenticeship route for admission to the bar to be restored. In some small number of instances, I think some folks who can’t manage taking years out for law school could learn by understudying as part of their job, and do very well for their eventual clients.
That said, I don’t see it — or many other apprenticeships — as becoming a big part of the picture. For good or ill (answer: both) we’ve moved away from an apprenticeship system for people who don’t yet have the relevant merit badges and to one where people who do still need to apprentice to become good at the thing that they’re licensed to do. And sometimes actually do that.
In re loop, while Billy is the most concerned party, we are all concerned that the system afford fairness. Billy’s poor choices lead to a wealth of issues after the fact, since we don’t want to put innocent people in prison for making a bad choice of counsel. If that happens today (theoretically), we have IAC claims. But there could be no IAC claim against Uncle Fred, as he’s not a lawyer. And if we changed the claim so that Billy could make it, then we would never be able to convict guilty Billy because he could always demand his right to be represented by Uncle Fred, or any number of other non-lawyer relatives. Ultimately, trials would be farces and we would never have confidence in any result.
We can’t have it both ways, full freedom of choice or competent. Pick ’em, but be prepared, if the former choice is made, for a system where there is no redress of grievances and people suffer the consequences of bad decisions, if not criminal conduct.
Maybe we’re both a little right. I don’t take issue with the idea that as a profession we should do more to instill among ourselves and those who would like to join us the desire to excel and conduct ourselves with the utmost integrity. But then let’s make the barriers to the profession more rationally related to that purpose and less artificial, less apparently designed to simply limit competition in furtherance of our own self-interests. I think I had a pretty good conceptual understanding of law and of how to “think like a lawyer” after the first semester of law school. Why an aspiring lawyer should first have to get an undergraduate degree in some random subject isn’t clear. Bar exams are a bad and expensive joke. The long-lost apprenticeship model really has a lot to recommend it, if what we’re really after is ensuring competence in the practice of law. I also think the distinction you identify between appearing in court on behalf of another and giving legal advice outside of court is important. Frankly, I doubt that a truly principled line can be drawn between providing legal information (which non-lawyers are apparently allowed to do) and giving legal advice (which non-lawyers aren’t supposed to do). On the other hand, courts do have a legitimate interest in ensuring that the “attorneys” who actually appear before them are competent, for the reasons you identify.
Crappy lawyer advertising is a huge part of the problem. If only there were more we could do about it consistent with the First Amendment.
All of the issue you raise here, from law school, clerking, advertising, are all part of the problem. I believe that the advertising problem, one of the worst facing the law, is a direct result of supply and demand. Unfortunately, I’m not sure we can ever put the genie fully back into the bottle, though I suspect that if peer pressure within the profession was strongly against the deception and lies, it could be significantly cut back. First amendment might allow it, but professional judgment doesn’t require it.
We can be better, but we’re already far down a bad path and the voices are loud encouraging young attorneys to follow them. We need to break this pattern and reinstill the virtues that made this a profession, quality and integrity.
Honestly, although I haven’t thought it through to see whether it contradicts everything I’ve already said, I’m not sure I’d have a problem with courts requiring a TEN-year apprenticeship (not necessarily with the same “master”) before an attorney is allowed to appear in court on his own and not under the direction of a “master.” Then again, I think such a “master” should be free to let anyone he wants to (apprentice or paralegal or otherwise) appear for him in court, no matter how green or uneducated. After all, the master would be responsible for whatever his apprentice or employee does in court. If the public understood that only “masters” are lawyers in the fullest sense and can appear in court independently, and only they could “advertise” themselves as such, they presumably would have a well-deserved edge in the market, an edge that serves the public. Maybe that would necessarily clean up a lot of the crappy advertising. (It’d be preferable, though, if becoming a master was dependent not solely on time put in but on more merit-based factors.)
Sorry, but I have to immediately qualify my previous comment. It would probably only be sensible to tie the length of the apprenticeship required to appear independently in court for a particular kind of case to the seriousness of the kind of case. That is, maybe a one-year apprenticeship would be required to appear independently for misdemeanors, four years for felonies, ten years for class A felonies and capital cases. Otherwise, featherbedding would be the result. The point is, the barriers would be rationally related to ensuring competence.
Fair enough. As I suggested, I’m not particularly sold on the notion of too few lawyers — at all.
As it is, though, there are problems both with choice and competence. And in the general public, who often don’t know what to look for, or the questions to ask, on a good day — and the time that they realized they need a CDL is rarely a good day.
That’s why I focus on quality and integrity. Then, no matter how bad a day it is, they can’t go too wrong.
See how the simple plans become more complicated?
My dad’s answer to the “there are too many lawyers” notion is to reply that “there are never too many GOOD lawyers” – the implication being that if you go and become a good lawyer, then you will not be crowded out of the profession.
My dad used to say that too. Of course, he turned out to be wrong about other stuff as well. He didn’t know women nearly as well as he thought.
Why would you say that is wrong? In my brief legal career thus far, I’ve come across more crappy attorneys than good ones. Presumably if the market supports a need for X lawyers, unless the number of good lawyers >= X, there are not too many of them. I think the main problem, though, is that there is no easy way for the noninitiated to discern if the lawyer they are about to hire is really a good one or not, so bad lawyers get plenty of business. (And get even more when you consider the clients who want to do things that a good lawyer would refuse to do – my friend’s exwife is nuts and she went through many attorneys til she found one who was willing to do all of the unethical things her earlier attorneys presumably refused to do).
I love it when people answer their own questions. Your dad’s (and mine) point about good lawyers is fine, as far as it goes. But given the way lawyers are marketed today, you’re less likely to find the good ones than the bad ones. Ironic, isn’t it?
Ironic, isn’t it?
No, it isn’t. It’s unfortunate, just like rain on your wedding day, a black fly in your Chardonnay, and all that other stuff in the Morrisette song.
Morrisette song? Was she with Jefferson Airplane? Oh no, that was Grace Slick.
I think we gotta get you some new 8-tracks for that player mounted on your walker.