Despite the fact that such a change might be ruinous for me
personally, since a large portion of ProEthics income comes from
providing bar association-mandated continuing legal education courses on
ethics, I have to endorse the arguments made by Brookings Fellow
Clifford Winston and George Mason Law Professor Illya Somin for
eliminating barriers to entry in the legal profession, such as mandatory
law school attendance, the bar exam, and bar membership Ethical Jobs .
Winston writes:
“For decades the legal industry has
operated as a monopoly, which has been made possible by its self-imposed
rules and state licensing restrictions — namely, the requirements that
lawyers must graduate from an American Bar Association-accredited law
school and pass a state bar examination. The industry claims these
requirements are essential quality-control measures because consumers do
not have
sufficient information to judge in advance whether a lawyer is
competent and honest. In reality, though, occupational licensure has
been costly and ineffective; it misleads consumers about the quality of
licensed lawyers and the potential for non-lawyers to provide able
assistance.
“Rather than improving quality, the barriers to entry exist
simply to protect lawyers from competition with non-lawyers and firms
that are not lawyer-owned — competition that could reduce legal costs
and give the public greater access to legal assistance.
In fact, the existing legal licensing system doesn’t even do a great
job at protecting clients from exploitation. In 2009, the state
disciplinary agencies that cover the roughly one million lawyers
practicing in the United States received more than 125,000 complaints Ethical Jobs ,
according to an A.B.A. survey. But only 800 of those complaints — a mere
0.6 percent — resulted in disbarment.
“What if the barriers to entry were simply done away with?
“Legal costs would be reduced because
non-lawyers, who have not had to make a costly investment in a
three-year legal education, would compete with lawyers, who in many
states are the only options for basic services like drafting wills.
Because they will have incurred much lower costs to enter the field —
like taking an online course or attending a vocational school — and can
operate as solo practitioners with minimal overhead, these non-lawyers
would force prices to fall. The poor would benefit from the lower prices
for non-criminal matters, and poor litigants, who might be
unrepresented in criminal matters like hearings because they could not
afford a lawyer and because of dwindling state legal aid, would be
better off.
“At the same time, if corporations —
and not just law firms, now structured as partnerships — could provide
legal representation, their technological sophistication and economies
of scale could offer much more affordable services than established law
firms do. These firms, in turn, would have to reduce prices to compete Ethical Jobs . “
I see no flaw with this reasoning, nor this,
from Professor Somin, on the benefits of making bar exams voluntary.
Over 30% of all law grads never pass the exam, which doesn’t measure
very much of what it takes to be a good lawyer, only facts, most of
which are readily available whether they have been effectively memorized
or not. Somin writes:
“The main fear that many have about
abolishing the bar exam is that consumers will have no way of assessing
lawyer quality without becoming legal experts themselves. Most clients
don’t know much about law, after all.
“However, markets have numerous tools
for dealing with this problem without resorting to government-mandated
licensing. The most obvious is reputation. Clients can’t directly assess
a lawyer’s competence. But they can learn about his reputation from
other lawyers, previous clients, and others. Law firm brand names are
also useful. If I hire Wachtel or Cravath, I may not know much about the
individual lawyers who will work on my case. But I do know that the
firm has a strong reputation overall, and that they have powerful
incentives to hire lawyers who will uphold it. Less sophisticated
clients can also piggyback on the knowledge of better-informed ones.
“
Voluntary certification is another
useful tool for consumers. If state-mandated bar exams were abolished,
both bar associations and other private groups would still be free to
certify lawyers using either tests or other standards they deem
appropriate. If lawyers certified by the bar association are generally
more competent than others, sophisticated clients will soon realize
that, and the knowledge will quickly trickle down to less sophisticated
ones. Over time, lawyers certified by the bar association will command
higher salaries and enjoy more prestige than those who are not.
“Superficially, voluntary
certification seems little different from the old bar exam system. After
all, lawyers would still have incentives to meet standards established
by some professional organization. However, there are three big
differences. First, abolishing state-mandated exams allows different
certification systems to compete against each other. This stimulates
improvement in standards over time and also increases consumer choice.
Second, since no certifying body will have a monopoly, these groups will
have strong incentives to improve the quality of their certification
systems. If the bar association’s certification system turn out to be
inferior to that of the Better Business Bureau, for example, fewer
consumers will pay attention to it, and fewer lawyers will pay to take
the bar association’s test. For this reason, a bar association that
didn’t have a legal monopoly on certification is likely to produce a
better test than one that does Ethical Jobs .”
Ethical Jobs ...
