First off, my appologies for missing the month of October. Two weeks of calling alumni took up a big chunk of my time. And I am now on Trial Team, which should be exciting.
Every industry has regulations, whether they are simple Federal workplace safety rules or a more specific set of rules. The legal profession is no different in that regard; what sets us apart is that our rules are completely self policed.
The Bar of each state administers the Bar exam, oversees continuing education requirements, and ultimately disciplines members who step out of line. They exist within statutory frameworks in many instances, but ultimately we are given a great amount of leeway to deal with our own troublemakers. And more importantly the community of lawyers decides what the entrance requirements are to join that community.
Which brings us to this fine and elegantly crafted link (Are Law Schools and Bar Exams Necessary, NY Times 10/24/2011). In the article the author of a new book (First Thing We Do, Let's Deregulate All The Lawyers) makes a short summation of his whole thesis: That law schools and bar exams are not, in fact, necessary and exist only to keep all us fancy lawyer types in thousand dollar suits on the face of the proleteriat. As you can tell, I'm not going to be spending this note heaping lavish praise on this idea.
Don't get me wrong...there is quite a racket to law schools. I believe, in the way you can believe something you have been told once and thought was funny, that 48 states require you to have graduated from an ABA approved Law School to sit for the Bar Exam. The two states cited as allowing others are California (who hosts the only, as far as I know, online law schools and makes up for their openness with the hardest Bar exam in the country) and Illinois (frequently said to be more open to non law school lawyers because of one A. Lincoln you may or may not have heard of). In order to go to an ABA approved Law School you must almost universally have taken the Law School Admissions Test (LSAT) which means forking over money to the LSAC (Lawyers Say Acronyms Cool, or more accurately the Law School Admissions Council) to take it. In addition most Law Schools require you to use the LSAC's credentialing service, which is where they take all of the letters of recommendation and your scores and charge you 150 dollars to put them in envelopes.
And after that you pay for your Law School tuition, and then several hundred dollars for the Bar exam. As a scheme, it could give Al Capone some tips for its efficiency. But the other side strikes me a smuch more horrifying than that article would like to suggest.
Not even getting in to any arguments of the general merits of regulation versus deregulation, the first thing to remember is that the law is incredibly complex. There have been numerous articles written about how many laws we all violate every day without even knowing we're doing so, and for the most part no one cares or prosecutes; but the fact that we can do so many things that are illegal in some section of the law every day illustrates what a quagmire it is. And on top of this because of our system of precedence (the common law system), it is not out of question that a case from the 1800s might still have weight today.
Allow anyone who wants to call themselves a lawyer to practice law, and you are going to have a serious glut of underequipped lawyers coming in to the field. And since we have done away with the Bar as an overseeing entity, there is little that can be done to reprimand truly awful attorneys. Sure if they break the law we could arrest them, but even with the Bar watching you can be a poor attorney and be fine so long as you are meeting your ethical obligations; remove that oversight and just say that anyone who doesn't break the law as an attorney is fine, and you get a lot of screwed clients.
And more than that, as a rebuttal article located here points out, that won't stop the $1000/hour attorneys from charing that. Corporations, politicians, and movie stars will all still be able to afford the big name attorneys with their big name prices; everyone else will have to muddle through even more mud just to find a good one.
My personal view is that anyone who can pass the bar is probably qualified to be a lawyer, but that we do need the bar exam to determine basic competency and the Bar as an entity to oversee ethical obligations. I do agree that there is some room for expansion of non-Lawyer entities in the legal profession, and that allowing non-Lawyers to own law firms could be beneficial if tightly regulated.
I personally think we should model ourselves more after the English system, where they have Solicitors (who deal with clients and transactional law) and Barristers (who represent people in court). Being a litigator represents a different set of specific skills than being a transactional lawyer (the ones who do wills, trusts, contracts, etc), and most people end up doing one or the other. Seperating them out would allow the educational requirements and testing requirements to be tailored to that type of law, and would allow the truly ambitious to pass both sets and be recognized as Barrister and Solicitor. Maybe it wouldn't take less education to be a Solicitor, as I may have suggested to the annoyance of transactional attorneys, but different to make sure their skills were being served. And I do believe it would be easier to be a DET (decedents, estates, and trusts) guy then a criminal defense attorney, and should be; in almost every other aspect of the law we recognize that losing money is not as terrible a thing as losing freedom.
Everyone complains about lawyers, no one more so than other lawyers. I understand, living with them now, I do. But I think it's importantt to remember that most lawyers don't charge $1000 an hour, or try to gouge you on billing; like any profession most lawyers charge a reasonable amount, and do a good job of trying to make sure your needs are met the best they can. As a friend said the two people you don't ever want to worry about not having enough money are the doctor who is treating you and the lawyer who is representing you, because their distraction costs you a lot more than the barista's.
There are definite steps we could take to improve, and how crazy law school is I'll save for a whole different rant. But we've got our safeguards for a reason. So tell you what, Brookings Institute guy, let's not have the first thing we do be deregulate all the lawyers; lay off us, and we promise not to tell all of our really scathing economist jokes.1
1 Quick, someone write some really scathing jokes about economists.
