David Segal continues picking and sniffing in his latest feature in the New York Times, laying out his case against the ABA for its guild-like control over entry to the profession, and its related imposition of requirements for accreditation that foreclose efforts to provide low cost legal education.  Since everybody hates the ABA, this is something that everybody can get behind.

Except, once again, Segal has taken some decent, if tired, points and squandered them.  The article is less a honed argument than a collection of anecdotes and quote, signifying nothing. 

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low– and middle-income communities….

Paradox?  Hardly.  There are two tacit assumptions underlying the article which need to be noted and debunked.  First, lawyers are licensed as generalists.  I’m every bit as much a lawyer if I were to take on a corporate merger as a murder.  Thus, I have to be trained and tested to do both, as the shingle says only “lawyer.”  Change this detail and the entire legal world shifts on its axis.

Whether it’s the solicitor/barrister distinction, or as I proposed, the creation of the Legal Practitioner, or any one of a thousand variations in between, we can eliminate this structural failing within the profession.  If we didn’t need to be trained as generalists, a legal education could be accomplished at a fraction of the cost. 

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

So why must every lawyer be taught as if he’s doing a real estate closing today and trying a multi-million dollar class action tomorrow?  Beats me. Sure, there will need to be strict controls to make sure that lawyers, paras, legal practitioners, solicitors, barristers, whatever you want to call them, stay within the scope of their competencies.  That will be hard work.  So what? 

The second assumption deals with the reality that there are too many lawyers who want to earn the big bucks and not enough to fill the unmet needs of normal folks.  Segal explains that it’s all because of the crushing debt load of going to law school. 

One recent Nashville graduate is Tad Wintermeyer, who was a 26-year-old pilot and airplane mechanic when he enrolled in 2005. His monthly cost for tuition “was like an expensive utility bill,” he says. In 2009, he left with a J.D. and no debt. He took judicial appointments as a public defender, which paid about $25,000 his first year of practice.

“Almost all of my clients were indigent, or low income, or on some kind of government assistance,” he says. “It was incredibly rewarding work.”

What Mr. Wintermeyer has given up in prestige, interstate mobility and income, he says, he has gained in peace of mind, not to mention the freedom to donate his time. There are, of course, thousands of graduates of A.B.A.-accredited schools who are every bit as satisfied with their degrees.

Damn, that’s heartwarming. It’s also nonsense. Sure, there are some truly dedicated, truly interested people who enter the law as means of helping others. They are prepared to forego wealth and prestige in order to use their education and skills for the betterment of humanity.  And that means all lawyers (or lawyer wannabes) are great humanitarians who would willingly give of their time for others if only they didn’t have massive debt to pay off?  On what planet?

Despite the few, the proud, the poor, who do the good work, the vast majority want their Mercedes Benz station wagon in the driveway.  There is a reason why AUSAs fly out the door when their commitment is up to grab their piece of the biglaw pie.  There is a reason why biglaw partners don’t apply for line prosecutor jobs.  Having lost three years of their life, a bunch of money and coming home to hungry mouths and iPods that need cell service, they want to enjoy a comfortable life, if not a fabulously wealthy one.  Defending indigents isn’t the reward they had in mind.

Ken at  Popehat wrote about his pro bono representation of a science blogger in a SLAPP suit, where he and Marc Randazza stood up for the First Amendment because it was the right thing to do. No doubt he’ll regret announcing his victory when the next thousand demands come in for his freebie services, and the angry and outraged reactions smack him in the face because he can’t take them all.  No good deed goes unpunished, even when you are, as Ken and Marc are, humanitarians.

Even if we assume that 20% of all lawyers would desire to use their education for humanitarian purposes, the need for affordable legal services calls for the 80% who won’t.  The same structural deficit continues unabated.  The argument, to the extent it can be called that, in Segal’s article is deeply flawed. 

On the bright side, he includes the voice of Gillian Hadfield, who has been the foremost proponent of fundamental, and rational, change to the profession.

Her vision isn’t a free-for-all, where anyone can hang a shingle; it is a range of options that would entail an array of educational degrees and a broad spectrum of prices and formats for legal services.

This is clearly a fundamental shift from the lawyer generalist approach, the notion that no legal function can be broken down into more limited, discrete tasks that can be accomplished without knowing how to try a case or spending $150,000 on law school. 

If it turns out that we can serve the needs of those for whom legal services are unaffordable, but we are still top heavy on full-blown lawyers who want to make the big bucks but find themselves sitting on the couch in mommy’s basement, so what?  Eventually, people will figure out that law school isn’t going to pay off and find something to do with their lives that makes sense.  The far more important need, to serve an underserved population, will be met, and the far less important need, to provide jobs for lawyers whose only concern is personal wealth and prestige, will collapse under its own weight.

But at least we all agree that the ABA’s control of legal education has been a massive failure on all ends.