When the New York Times editorial decried the “justice gap,” my reaction was that they seemed all too happy to experiment at risk to the poor:
Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.
Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.
Is the difficulty for ordinary people to obtain access to a lawyer a serious problem? You bet it is. It’s also a problem for ordinary people to obtain access to high quality diamonds or exotic automobiles, but access to legal help is a necessity for the normal functioning of an ordinary person in society. Wills, divorces, house closings and basic civil litigation are part of the basic functioning of society. We’ve made society legal-dependent, and so legal counsel and representation has become a need rather than a luxury.
But why the Menckian solution?
It’s not just the Times. It’s the Wall Street Journal. And if that’s not enough to fill the bed, even Tim Lynch at Cato has jumped under the covers.
From a Cato paper : “Every state . . . prohibits the unauthorized practice of law (UPL); a person must possess an attorney’s license to hold himself out as a lawyer. UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.”
It’s unanimous. Get going state lawmakers—deregulate the legal profession.
Without getting too hung up on Tim’s calling a profession “a legitimate occupation,” that costly barrier to entry is an education. Granted, it may not be quite the education that lawyers think it should be, but consider the alternative.
Would we want anyone but a qualified electrician to juice up our homes? We want our brain surgeon to know the frontal lobe from the medulla oblongata. There are some things that require a bit of knowledge to do. Law is one of those things.
Neither the Times, the WSJ, Brookings or Cato buy it. One view is that what lawyers do just isn’t that hard, and therefore anybody can do it. Granted, some of the functions are pretty routine, though it’s not necessarily routine to know whether the routine is appropriate or sufficient to meet a person’s needs. Even then, however, it’s remarkably easy to screw up even the simplest of legal documents.
The simple will, for example, which, assuming it satisfies the needs and desires of the testator, can be prepared from a fill-in-the-blanks form. Whether it’s the correct vehicle for a fellow requires a judgment call, of course, but once past that decision, the blanks themselves are fairly self-explanatory. But does the guy who bought the $19.95 will know that he can’t cross out his brother’s name when he has a falling out and fill in his sister’s? Does he realize that his executor may have to locate the witnesses some day to prove the will, when he pulled a couple folks off the street to complete the execution? Of when he rips the will in half to show his kids what could happen if they continue to piss him off, does he realize that he can’t tape it back together?
Why not let anybody who wants to open a storefront, Wills-R-Us, do so? Because the nice people who walk in the door will have no assurance that the people at the desk have a clue what they’re doing.
Which leads us to the subtext in this debate. The forces for deregulation don’t think lawyers know what they’re doing either. Sure, we go to law school for three years, but nobody (with any credibility) contends that law school produces client-safe lawyers. And every person who has ever had the misfortune of having to find a lawyer has a story about the blithering idiots they came across in the process.
Here’s a bit of harsh truth: There are far too many people with licenses to practice law who are kinda dumb. We used to be a learned profession. Now, we’re a guild with some better, some worse. Too many worse, unfortunately.
Earlier this morning, I was having an email discussion with Eric the Turk and Brian the Tan about a National Law Journal article that was just awful; superficial and worthless. When the boys bemoaned the poverty of thought of the article, I bemoaned that any lawyer would read it. If no one read it, the NLJ wouldn’t publish it. Similarly, the Lawyerist and the “small law” columns at Above the Law are so bad that they shouldn’t possibly exist or survive, yet they do. In fact, they’re pretty darned popular.
It would seem impossible that any reasonably intelligent lawyer would read such fluff. And it is, and that’s the problem.
The deregulation of law isn’t the answer; the competent practice of law requires specialized knowledge that can’t be obtained or assured just by opening a storefront and taking money from unsuspecting people. That we need to find a way to provide legal services to those who can’t afford it is beyond question, but that doesn’t mean the overly-simplistic solution is viable.
On the other hand, if the people licensed to practice law are as dumb as would appear, maybe lawyers aren’t any more competent to practice law and hold people’s lives in their hands either. Maybe we’ve sufficiently dumbed-down the profession to the point where we aren’t doing any better than the guy who was assistant manager at Dairy Queen last week and has opened up his own law office this week.
Maybe the reason the New York Times, Wall Street Journal, Brookings and Cato think we don’t deserve the exclusive right to practice law is that we have forsaken our intellectual and educational authority to help others. But the solution isn’t to place law in the hands of everyman, but to elevate the profession to those worthy to practice it.
As for the cost, I have an answer, but that will be another post.
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Wait, so the key to gaining clients is not demonstrating that you provide high quality, timely, informed, and valuable products and services? Instead, the trick is to hang out at bars? I’ve been led astray!
As a recent law grad, I agree that law school did not adequately prepare me for the practice of law. I benefited much, much more from clerking for a firm all through school. It gave me a much better idea of how a certain type of firm functions.
As you, and many others have stated, obtaining a law degree does not automatically make you qualified to handle any legal matter. While many of the people I graduated with have hung their own shingles because they have no other option, my experience as an associate at a firm has led me to believe that some sort of apprenticeship/residency should be required for law school (I think you made a post about this recently?). There is so much to be learned with the practice of law that only comes with experience.
A new lawyer can either earn that experience on their own – perhaps at cost to their clients – or they can join a firm/find a mentor and benefit from the experience of others.
The answer to the cost problem – like the answer to most problems involving costs that you probably won’t incur but could be catastrophic if you do – is insurance. Most people couldn’t afford medical care without it either.
Interesting that we don’t see too many calls for deregulating the medical profession, despite a similar “cost problem.” I suspect the reason people call to deregulate the legal profession isn’t so much the cost of legal services as a perception that they aren’t worth the cost – that law is “just talk” and that anyone who reads a few books can do it.
I keep hearing from young lawyers that they are all very smart. My experience is that some are. Others think they need only hang out in bars. What does that tell you?
Medical insurance is outrageously expensive. I would dread the notion of adding legal insurance on top of that. And from a more selfish perspective, I would dread the idea that my fees would be dictated by a legal insurance company. I see (from Dr. SJ) how health care providers are paid. It sucks.
I completely agree. People still elevate the work of doctors to a high level — and that might have something to do with the many years of actual, practical training and apprenticeship they receive prior to entering the practice — so there’s little pressure to deregulate the profession in order to cut costs.
I believe that we are only seeing the beginning of a tidal wave of pressure to deregulate the law practice, and it will be compelling to lawmakers because it’s such a simple solution. The “Menckian solution” reference is very appropriate, because it is the simplicity of their proposed solution (you can describe it in one word, “deregulate”, a word everyone loves!) that makes it so enticing.
This is obviously a hare-brained solution. Why the NYT and WSJ did not realize this is bad sign.
Would you drive across a bridge designed by an english major?
Does it have a toll?
I believe the following George Carlin quote is applicable in this situation:
“Just think of how stupid the average person is, and then realize half of them are even stupider!”
There are bad lawyers, average lawyers, and good lawyers. It’s a stretch to say that fresh law grads are immediately going to fall into the good lawyer category.
Forgive me for being unclear. I’m distinguishing new lawyers with the potential to be good lawyers from new lawyers without the potential. And for clarity, this isn’t to say that older lawyers are/were all wonderful, competent and brilliant, but that we’re now facing a broadbased call to end the existence of the legal profession, which is why this issue comes to a head.
Cato has been consistent in its call to reduce or eliminate state licensing requirements in many areas including medicine. In “Medical Licensing: An Obstacle to Affordable, Quality Care” Shirley Svorney of Cato wrote “licensure not
only fails to protect consumers from incompetent physicians, but, by raising barriers to entry,
makes health care more expensive and less accessible.”
I agree with Cato about a lot of things. Not this. If they think incompetent medical care is a problem now, try Joe’s Surgery and Pizzaria.
I wonder if we might kill two birds with one stone by adopting a residency style requirement like our fellow learned professionals in medicine have? Make young attorneys do approx. 3 years as low-salary public defenders or at legal aid, heavily supervised by people who know what they’re doing.
I’d like this approach better than simply making law school or the Bar harder. I know many skilled attorneys who sucked at law school and strugled with the Bar, and more than a handful of law review editors who check their flies durning opening statements.
Doesn’t this statement fall under yesterday’s “I Agree*” meme (though in reverse)?
Sorry, couldn’t help myself.
Legal insurance (which exists, BTW) wouldn’t be nearly as expensive as medical, because most people need legal services much less than they need health care. You don’t get a legal checkup once a year, and your legal problems (usually) don’t increase as you get older.
There’s some merit to the idea, but who pays for it? And who pays whom? What about the new lawyer no one wants, or who turns out not to have the chops to be a lawyer? There are a ton of logistical issues in this change over.
Yes it does. Thanks for noticing.
Prepaid legal services never gained any real traction. Short of the individual mandate (how’s that working at the moment?) forcing everyone to have legal insurance, my guess is we would be right where we are now.
No trouble at all! Just another service provided by a non-lawyer from your faithful peanut gallery.
Certainly problimatic on the money end. Must be possible, though. I’d have to look up how the doctors do it.
Docs do their residency at hospitals, where they are paid a meager wage. Lawyers really don’t have an equivalent.
Create incentives for firms to take on fresh law grads. Tax breaks, etc. I have no clue as to how it would work but I think a residency-style program would really help the “new lawyer” problem.
Well, tax breaks for lawyers would certainly be publicly palatable because of how well regarded we are.
On the other hand, then you would become indentured servants of Big law (and they could finally get back that doc review biz outsourced to Bangalore), because solos and small firms don’t have the time it takes to teach apprentices how to be lawyers.
For another view that supports the position taken in this post, see: [Ed. Note: link deleted per rules]. It is not “deregulation” that we need, but “right”regulation, meaning that in theory paralegals could be licensed to serve the public directly in practice areas where they are competent as evidenced by training and certification procedures. The idea of having any one provide legal services to any one, is plainly absurd, and not supported by any facts.
Pretty much.
It seems that anybody, in attempting to make the case for less regulation of the legal profession, winds up making the case for more regulation. To sum up their argument: “too many lawyers are idiots, so let’s relax the rules so that even more of them are idiots!”
And yet that seems to make sense to some otherwise insightful folks. Go figure.
It’s a decent idea.
Here’s the problem, though. If you’re arguing that the legal profession is not well-regulated enough, that means you believe this has been a problem for some time, and more than a few attorneys have been allowed to slip through the cracks. Would you want young lawyers learning from a guy who’s just barely competent enough to get and maintain a law license? Or, perhaps worse, a lawyer who cuts corners to make a quick buck?
I don’t see how a state licensing agency can say to a lawyer that he’s qualified to practice law, yet unqualified to have a young attorney learn about practicing law from him. How do you get around this problem?
Nobody buys prepaid because most people don’t think they’ll ever need a lawyer until they actually need one. I mean, what kind of person sits around thinking “I might get arrested some day, so I need legal insurance!” Not quite the same as buying medical insurance — most people do foresee the possibility of needing a doctor. Businesses that have a consistent need for legal services just have a law firm on retainer instead.
Sir, I don’t agree. Deregulation – we don’t need no stinking deregulation.
The industry simply needs to grow a pair and implement mandatory Qualification and Certification.
Ex: Those seeking to represent humans in a Criminal matter (Misd. & Felony) should be; tested and certified to ‘assist’ a Real CDL for no less than one year, in no less than five cases taken to verdict prior to being allowed to stand before the court alone.
This will free up Divorce & Will specialist to represent those that they cater to. Plea bargain abuse will drop and it just might prevent a few false arrests from becoming wrongful convictions. Thanks.
I think that the best lawyers will rise to the top and be wealthy irrespective of competition.
If you have a realistic chance to win, or lose, $10 million in litigation, you will not balk at paying $1 million for a top tier lawyer to represent you. If you are at risk of spending years in prison, you won’t balk at paying 20% of your net worth to try to prevent that (which unfortunately isn’t that much for most criminals, LOL).
The fact that anyone can become a “financier” without any education by, for example, originating home mortgages or pitching stocks, does not really concern the managing directors of Goldman Sachs, Kleiner Perkins or KKR.
Of course the hacks who do real estate closings and basic wills would lose, as would the very bad litigators.
It take hard work to be very good, but is well worth it.
Did you really waste a minute of your life writing that drivel?
Why is this question always framed as qualified lawyers vs. unqualified storefront. To continue your medical analogy, I too want a brain surgeon if I need someone to open my skull. On the other hand, I don’t go to an ophthalmologist for routine eye screening or contact lens fitting. A lesser trained optometrist is better and less costly in this area. As for your electrician analogy, I agree, wiring a new house needs an electrician but you can have a qualified person attach an electric range or ceiling fan to you house without undue danger.
The medical field has a range of service providers, Doctors, nurses, Practical nurses, physician assistants who provide a range of different services and qualifications. Phlebotomists for example work in a very narrow space but can still provide a safe and high quality service.
The legal profession has very limited diversification of qualified service providers. Many wills can be done by someone that has much less and more specific training than a licensed lawyer.
The problem is that the infrastructure does not exist for this to happen; but it could be created.
You raise a very valid point, but to answer your question, it’s framed this way because the spectrum consists of lawyers and everybody else. You go to an optician for a routine eye exam, but he’s an optician, not the guy who was assistant manager at Dairy Queen last week.
Every business person I’ve ever met fancies he knows some law. Every business person I’ve ever represented knew just enough to get himself into trouble. Having your pal install your ceiling fan is fine, but when it catches on fire, what do you plan to do about it? It doesn’t happen often, but it does happen.
As others have hinted around about, I think ‘differently-regulated’ is a better answer than ‘deregulated’.
Medicine has been going though this for some years now, ad several have noted above. You don’t need the brain surgeon to give you a vaccination. The person who gives you the vaccination, though, is not someone whose last job was at DQ; she’s been trained to do a very limited number of procedures, but trained to a level that ensures an at least minimal degree of professionalism.
I don’t see why a one-year, intensive course on Wills could not develop a new profession. The same could be said for Real Estate, Bail, or other narrow and specific areas of law.
This would not endanger the economic security of those who are doing CD or major torts, nor of their clients. Laws schools and their traditional JDs continue–though probably at a lower volume throughput.
Dammit, you’ve stumbled onto my secret magic solution.
Sir, Mr. Granat (above) offered up “Right-Regulation” & the ‘P’-Word as a possible solution but lost me on the last sentence.
Mr. Burgess offers up “Differently Regulated” & no ‘P’-Word.
The Paralegal / Legal Assistant (ten feet away) offers up – yelled out – “We go through a rigorous two year ABA approved legal studies program, which includes Wills & Estates. Not to mention the following years/decades of work in the legal field. I look forward to the day that our profession receives the legitimization it deserves. Any magic solutions will require Paralegals being licensed by the state.”
The “right regulation/differently regulated” means nothing. It’s just semantics.
While there are paras who are exceptionally smart and capable, some more so than lawyers I know, the program is not geared for this function, and many paras are not, and never will, be any more capable than glorified secretaries. The sad part for those paras who are capable of doing much more is that they are in an occupation that was intended to serve a limited function from the outset.
Consider in medicine, there are LPNs, RNs, Physicians Assistants and physicians. Let’s say paras are the legal equivalent of an LPN, while lawyers are the equivalent of a physician. See where this is going?
Sir, I appreciate that.
While agreeing that all are not created equal, would you be willing to consider seeing Paralegals as more equivalent to Nurse Practitioners vs LPN/LVN? Thanks a million.
That’s where I’m heading, the creation of the legal equivalent of the nurse practitioner. I think many current paras are fully capable of fulfilling that role, but I’m not prepared to say that paras, per se, are the equivalent, as not all paras can, their education doesn’t serve to prepare them to do so, and that some are more than capable is a testament to the individual and their skills rather than the occupation.
Sir, got it.
Thanks for taking time to explain. Since Irene at your door I’ll let you go. Please be careful. Thanks again.
This problem is solved by Germans. They have a two-level certification system for almost any profession and vocation. After the apprenctice phase (in academic fields, the 1st Staatsexamen), you get the license to work in your field. After the Meisterprüfung, you get the right to take apprentices to your firm. (In academic fields, that the 2nd Staatsexamen is a close equivalent.)
But just think how useful for the general public having an army of new Biglaw trained attorneys will be.
Many attorneys representing the general public just do not know all of the key legal talents which Biglaw can teach new attorneys – from basic skills like billing your client for reading the newspaper or getting the client to pay for dinner and your ride home – to more advanced skills like turning the copy and fax machines into major profit centers or getting your clients to pay for you to operate the HVAC system – to superadvanced skills like getting your client to pay for one or more partners and various associates/administrative assistants/paralegals/mailroom clerks/cute barrista from the Starbucks in The Firm’s building/personal trainers/the newstand guy/the hotdog vendor/caddies/limo drivers/random people/etc., and a couple of “contract attorneys” to do any actual legal work/etc. to fly first class (actually they made the hotdog vendor fly coach) to Bermuda and staying at a 5 star resort for a week for the purpose of “case research” or getting the firm to include as creditable hours time playing golf or tennis or whatever and pay for your club membership as “client development,” Biglaw will teach these eager new young attorneys everything they need to know about the practice of law.
Heh. And some call me cynical.
I do think that about fifty percent of law schools should be shut down. Many of these new law schools are just taking money and turning out graduates who have no realistic job prospects. Many lawyers should consider a career switch, but if you dare suggest this to them, they may accuse you of being “just jealous” so you have to be careful in your approach. But the fact is, being a lawyer does not make you important, it makes you as common as mud.