The Day Lawyers Died

While lawyers were busy representing clients, fighting fights and cutting deals, making sense of the mess people make of things, taking relatively easy problems and turning them into monumental fiascos, a bunch of lawprofs held a virtual symposium directed toward one goal: the end of lawyers.

At Truth on the Market, a group of lawprofs (with a notable non-lawprof,  Walter Olson of Overlawyered) discussed  “Unlocking the Law: Deregulating the Legal Profession.”  The scope of discussion was broad, venturing from the elimination of law school entirely to the elimination of the monopoly entirely.  The scope was explained:



Welcome to “Unlocking the Law: Deregulating the Legal Profession.”


Licensing and regulation of lawyers, long questioned by scholars, is emerging as an important public issue.  Legal costs are rising for individuals and firms with increases in litigation and regulation.  These costs tax business growth and entrepreneurship and impede ordinary Americans’ access to the civil justice system.  Meanwhile, the development of new business structures and technologies and significant regulatory moves toward opening up competition for legal services in the UK and elsewhere are forcing policymakers to address lawyer licensing and regulation.   The U.S. is certainly not immune from the economic and other institutional forces nudging toward a reconsideration of existing licensing and regulation regimes.  It is an excellent time to reexamine the costs and benefits of existing and alternative regimes in light of these changes.

The Head Mortician was Larry Ribstein, who  opened and  closed the show.  His rhetoric of death aside, his approach was cautiously limited.


It’s unlikely that lawyer licensing will completely die.  It will be hard to reconcile complete deregulation of law practice with continued licensing of doctors, tour guides and horse dentists.   But there’s an important difference between lawyers and these other professions:  the prodigiously powerful lawyer interest group has managed to restrict access to the extremely broad field of human activity called the “practice of law.”  This regulatory monolith is bound to fracture.

Ribstein goes on to suggest that the barrister/solicitor distinction may prevail, or that lawyers be given “drivers licenses” that ends the jurisdictional distinctions.  Nothing earth shattering, and frankly rather modest proposals given the tendency to scream about falling sky.

Others, however, have grander schemes.   Brookings Senior Fellow Robert Crandall, for example, decried the lack of lawyers, proven to his conclusive satisfaction by the salaries earned. 


Were the practice of law deregulated, allowing anyone to offer a variety of legal services, the prices of the simplest services would surely decline. Equally important, the amount of legal training received would vary across the legal services field. At present, everyone sitting for a bar exam in most states must obtain the equivalent of three years of instruction at an ABA-accredited law school. Surely, three years of law school are not necessary for lawyers handling simple divorces, real estate transfers, or traffic violations.

Has Crandall ever handled a traffic violation?


Under current ABA-sponsored state rules, only lawyers can own law firms. Such a restriction obviously excludes entrepreneurs who might find innovative new ways to deliver legal services, perhaps as complements to other services, such as accounting or business consulting. There is no good reason why lawyers should only work for lawyers in delivering legal services to third parties. More diversity in legal services firms would likely promote innovation and provide consumers of legal services with more options and potentially lower prices.

There are some damn good reasons why only lawyers should own law firms, such as the competing profit motive versus ethical obligations dilemma, but Crandall merely waves his hand to make them disappear.
The obvious argument for occupational licensure in any profession is that it sorts out incompetent and unscrupulous practitioners.  In the practice of law, surely the road to competence is not only through three years of an ABA-accredited law school. At the very least, prospective lawyers could be freed to pursue their legal training wherever they choose and then to sit for a bar exam. And the bar exam could have several variants, depending on the sitter’s intended specialty. Why, for example, should those intending to handle domestic disputes be well versed in all of the technicalities involving complex financial transactions?

Everything old is new again, and don’t call me Shirley.  Back to the apprentice days, and a push for specialization at the earliest years, meaning the death of lawyer as generalist.  Or could Crandall be suggesting the down-sizing of lawyer to Legal Practitioner?

The voices of reason in this symposium turn out to be Walter Olson and  Gillian Hadfield, a lawprof who has long been a forceful advocate for affordable legal representation.


Although it has the zing of a slogan that I myself have often used, the call to ‘deregulate’ the legal profession is misleading.  Yes, most of us who argue that the legal profession is excessively closed to competition—in a way that hampers both access and innovation, as I have argued in recent papers—think that the entry barriers are too high.  But the legal profession is not only over-regulated, it is also under-regulated.  The regulatory regime lawyers and judges have put in place is overly protective of lawyers’ interests and insufficiently protective of the public’s interest in an accessible, innovative, and efficient legal system.  So the goal should not be ‘deregulation’ but ‘right-regulation.’

Hadfield’s challenge isn’t to dismantle legal education and regulation, but to take it out of the exclusive hands of lawyers and introduce others into the mix of crafting legal economic policy.  For this, Crandall immediately takes her to task:


Gillian Hadfield argues that “right-regulation,” not deregulation, is the right palliative for what ails the legal-services industry. But how are we to know what regulation is “right”? Nothing in her posting suggests that three years at an ABA-accredited law school is necessary for the execution of many of the tasks that we now confine to lawyers. Her plea for subjecting the legal services market to the general laws governing coinsumer protection, professional negligence, or antitrust does not translate into the necessity of retaining the current entry barriers for the practice of law. She also argues for transferring the regulation of the legal profession from lawyers and judges to other institutions without explaining why industry-specific regulation is necessary or could could possibly be welfare enhancing.

Anything short of rape and pillage, apparently, is cause for a fight among academics.  Always a bright spot when reading their posts. 

Olson’s vision is far more pragmatic than the academics. The  only thing worse than the regulation of litigators would be the deregulation of litigators.


As a libertarian, I mostly concur in the critique of occupational licensure made famous by (among others) Milton Friedman. For the most part, licensure is a consumer-unfriendly affair that protects incumbent practitioners from competition, locks out promising new methods of service provision, and interferes with voluntary dealings between professional and client. It is dubious enough as applied to occupational groups such as doctors and plumbers, and downright ridiculous (as the Institute for Justice keeps reminding us) as applied to groups like cosmetologists, florists and interior designers.

But lawyers are different. No, seriously — they are.

Bet you didn’t see that coming.


I am not convinced that deregulating the power to commence this sort of civil process and demand money from an opponent for calling it off — in effect, to widen the existing pro se exemption so as to allow anyone to proceed pro se on behalf of anyone else they can get to sign up — would reduce the amount of unjustified legal aggression in a system that already has plenty of it and to spare.

Wally throws the cold water of reality on the theoretical happy faces, that while deregulation offers the promise of a lawyer for everyone (if not everyone being a lawyer), it comes with a side of insanity and incompetence that can’t be ignored.  Not surprisingly, the scholars paid no heed.

In the wrap-up, Tom Crandall takes note of  what shockingly happens when you put a bunch of like-minded people in the same virtual room.


As we approach the end of this Symposium, I am struck by how much consensus exists on this subject. Of course, we are not conducting this exercise under the auspices of the ABA. Nevertheless, there is sufficient intellectual backing for a major push to begin the deregulation of legal services.

It’s always heartwarming to know that scholars think sufficiently highly of their views of things other people do to demand change.  While this recap, obviously and necessarily, scratches the surface of this symposium, and is open to every person involves parsing my omissions at painful length and in excruciating detail (because their words and ideas demand a full airing to appreciate their brilliance), it struck me as worthwhile to point out to lawyers that this was happening off in some ivy covered tower where lawyers never tread.

The discussions were largely superficial, with old arguments rehashed without much scrutiny or recognition of the flaws.  Still, most of the revolutionary changes were neither, but rather the same modest proposals that lawyers have been pushing for a while now, and lawprofs have been resisting tooth and nail because, well, law school is absolutely perfect.

But the rhetoric of a failed profession is something to fear, as it gives rise to such irrational and disjointed pronouncements as the death of law schools, which will be seized upon by the shallow and ignorant as a justification for ignoring the ethical and professional obligations as commerce is elevated to the only thing that matters.

I wonder if that’s what the scholars had in mind?




 

8 thoughts on “The Day Lawyers Died

  1. Catherine Mulcahey

    Recent law school graduates are saying that law schools turn out people who can’t get jobs at law firms. People who run law firms are saying that law schools turn out graduates who don’t know how to practice law. And now law professors are saying that people don’t need 3 years of law school to practice law.

    Obviously, one thing we don’t need is more law schools.
    Suppose we divide the law schools we already have into 2 categories.

    Most law schools could be taught by people who have actually practiced law. They could teach people how to be lawyers and legal practitioners, and perhaps even paralegals.

    The other group would train legal academicians who would become law school professors who could train other legal academicians. Those are the folks who seem to think the cost of legal services is related to the cost of lawyer regulation.

    Where did they come up with that? My annual license and continuing legal eduction costs come to about two percent of a year’s tuition at most law schools. They’re the smallest items in the overhead, and don’t even get considered when I’m setting fees.

    Okay, so we probably could get rid of some of those law school. And some of those professors.

  2. SHG

    Oddly, I bet most academics would love that, law schools whose purpose is only to train academics to teach law schools to train academics.  Ah, the theories they could endlessly discuss…

    There has to be an isolated island where we could build such a school.

  3. Thomas Stephenson

    Wow.

    I don’t think “lack of lawyers” is a problem, what with all the unemployed lawyers out there. I’ve seen some lawyers who, by the mere fact that they are in possession of a law license, suggest that we need MORE regulation, not less.

    The problems with delivery of legal services to the working poor are not easily solved, but one obvious conclusion is that deregulation of the legal profession is not the way to go. In the criminal defense field, you already see the low-bid lawyers giving terrible legal services to the working poor. And these people think the answer is to let any schmoe call himself a lawyer? The effect would be that the wealthy would still have access to top-shelf services, while the poor would get even worse services than they do now.

  4. Erika

    Virginia actually does have an apprenticeship program where one can work under a licensed attorney and “read” for the law and then sit for the bar exam. Very few people currently go through the program because my understanding is that you have to work for a long time and that going to one of the 8[!] ABA accredited law schools in Virginia is much easier.

    I really do not understand the claim that there are too many barriers to the entry of the legal profession. Yes, law school is incredibly expensive – a current student at my public law school is paying $42,000 a year in state and $52,000 a year out of state – and if they went to the same school for undergraduate, the in state student would have already spent about $100,000 to graduate from college and the out of state student almost $200,000 – but aside from cost there is really no real barrier to becoming an attorney. At least I didn’t think so – by the time the bar exam rolled around, I was so bored I was almost completely unable to study and I still passed the first time.

    I like the suggestion to have two classes of law schools – one for future academics and one for practicing lawyers. My belief is that the separation should take place at the end of the first year of law school. Anyone who actually enjoys going to law school will be sent to the academic track since they obviously enjoy legal theory and therefore have no future as a practicing attorney. Everyone else will go to the practice track. That will free future practicing attorneys from having to compete with high achievers who are actually interested in legal theory. It will also help new attorneys find jobs thanks to being freed from competition from the future law professors who are freed from having to actually having to pretend to giving practicing law a try first when they already know they will hate it. Finally, the future practicing attorneys will be freed from an extensive focus on legal theory which is only marginally related to real practice. As for the future academics, it frees them to forget about any sort of tedium like taking useful courses that they will never use – who needs to take Evidence or Criminal Procedure when you know that you are never ever going to actually represent a real client? Instead, the future academics can take whatever theory courses with no applicability to real life that they find most interesting. My perspective is of someone who would have if there was a divide at the end of the first year taken the academic track – I loved law school and absolutely hate being a lawyer. I knew by the time I graduated from law school that I did not want to engage in any sort of traditional legal practice – I gave it a try because the non-traditional jobs mostly required legal experience, but there was no reason to make someone like me even pretend to try to practice law. It would also benefit the public, I believe. It could be similar to the split between science and engineering

  5. Jordan

    The problem is we regulate stupidly. Academics have no idea how it works in practice, and they benefit from preparing kids to take the bar exam without teaching them actual lawyer skills.

    Scenario A: Tom has been practicing law for over 20 years. He has developed a niche practice in an area of law that is mostly federal. He’s never had an ethical complaint filed against him. If Tom moves from state A to state B, he can’t practice law because he hasn’t taken the bar exam. Mind you, he has to take an expensive bar exam that has nothing to do with the practice of law he’s gotten good at over 20 years.

    Scenario B: Joe graduates law school. Has no idea what he’s doing. He takes BarBri, passes the bar exam, and pays his dues. Mind you, the bar exam tested such important stuff like “liability of wild animals”, “bill of attainder”, and the “rule against perpetuities” in a hypothetical jurisdiction. But Thanks to Joe’s knowledge of legal trivia, he can represent anyone he wants to in any matter now in state B. First year of practice and you want to defend a murder? Go for it, Joe. Take on some medmal? That’s fine too! It doesn’t matter that Joe has probably never read his state’s rules of civil procedure, rules of evidence, or rules of professional conduct. Joe can represent anyone he wants in the state.

    The problem is we let people who take a bar exam represent just about anyone in any matter, while making the barriers on out of state practitioners difficult. Even if the out of state practitioners have developed an expertise in a certain area of law.

    My suggestion would be this:

    – Easy to waive in state to state you have over 5 years of practice and no discipline

    – Tiered law licenses. As in, you can’t take on a homicide without X felony jury trials, you can’t take on medical malpractice without X amount of jury trials, etc. First year associates have to be supervised by an attorney with over 10 years experience.

    – Get rid of that ridiculous multi-state bar exam. State bar exams should be based on state law, state procedure, etc. Not bubbling crap in a hypothetical jurisdiction.

    – Mandatory preceptorship for lawyers with under 5 years of experience.

    Put briefly — we should be regulating law in such a way that clients can easily access competent counsel of their choice. Right now, it’s easy for incompetent practitioners to practice, but difficult for competent practitioners to service their clients in a society where technology continues to remove geological barriers.

  6. Erika

    No, but I think I remember learning about them in high school and college.

    So by the standards of those law professors I am therefore competent to become an editor at a major publishing house. And if I am unable to find a job because the existing publishing houses have outdated notions of what a competent editor does, I can start my own publishing house and compete with them and offer a lower cost product. Yes, the books I publish may have errors in formatting, spelling, basic grammar, sentence structure, numerous typos, contain plagerized passages, and may even be outright theft of entire works, but it is up to the market to decide whether to save money and buy my books or pay more for competency. It simply infringes on my marketing plan to make as much money as possible with the minimum amount of effort to insist that I have to follow the rules of competent and ethical publishing. By lowering the bar of competency and ethics the public benefits by getting more books for cheaper. And if the public gets hurt by my blatent incompetency and lack of ethics its their own fault for trusting me.

    I’m thinking of calling my new publishing venture Caveat Emptor Press and specializing in publishing books written by law professors who oppose government regulation of the economy.

    But seriously, I actually know I am not a very good writer so thanks for the tip.

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