George Leef is director of research for the John William Pope Center for Higher Education Policy and wrote this piece for Forbes. He holds a bachelor of arts degree from Carroll College (Waukesha, WI) and a juris doctor from Duke University School of Law.
One of the Bard’s often-quoted lines is Dick the Butcher’s admonition in Henry VI, Part 2, “The first thing we do, let’s kill all the lawyers.”
That idea, argues lawyer David Epstein, is mistakenly thought to mean that Shakespeare was antagonistic toward the legal profession. Instead, as we read in this Wall Street Journal piece, Shakespeare actually meant “to portray lawyers as the guardians of the rule of law who stand in the way of a fanatical mob.”
Whether you agree with Epstein’s interpretation or not, more than four centuries after Shakespeare’s time, we should do something about lawyers, something that entails no violence.
That something is to deregulate the legal profession.
To repeat a point I have made here before, most companies and professions like regulation. They seek it, happily trading off some freedom for security from the blustery winds of wide-open competition. One of the organized interest groups that has been very successful in getting government to stifle competition so it can act like a cartel is the legal profession.
It used to be egregiously cartel-like, requiring that members adhere to fee schedules, thus shutting down price competition, and forbidding lawyers from advertising. Both of those strictures, embodied in the Canons of Legal Ethics, have been wiped away, though. The Supreme Court ruled that mandatory fee schedules violated the Sherman Act in Goldfarb v. Virginia State Bar in 1975 and the prohibition against advertising was similarly struck down by the Court in Bates v. State Bar of Arizona in 1977.
Those decisions whittled away the profession’s internal rules against competition, allowing lawyers to compete with each other. Still standing, however, is the bar’s defense against external competition: the prohibition against “unauthorized practice of law.” Only individuals who hold a license to practice law in a state may do so and anyone who does not hold a license is guilty of “unauthorized practice” should he or she venture to do anything that might be considered “practice of law.”
It doesn’t matter in the least how competent the individual may be to do the task, how expertly it was done, or how satisfied the other person was with the work. Unauthorized practice is strictly forbidden. And because exactly what constitutes the “practice of law” is not precisely defined, the effect (and the purpose) is to scare those who are not members of the bar from coming anywhere near “lawyers’ turf.”
With the high licensure barrier to entry into the market for legal services (in most states, only people who have graduated from an American Bar Association accredited law school are eligible to take the bar exam), lawyers can charge more. Owing to the great cost of getting into the guild, few lawyers can even think about taking cases from poor people who can’t afford to pay substantial fees.
Among the many who have noticed that problem are Brookings Institution scholars Robert Crandall and Clifford Winston, whose 2011 book First Thing We Do, Let’s Deregulate All the Lawyers makes a strong case in favor of a laissez-faire approach to the legal profession.
They write, “The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association did not artificially restrict the number of lawyers…Occupational licensing limits competition and raises the cost of legal services.”
The profession’s licensure system is enforced through unauthorized practice of law (UPL) prohibitions. If it weren’t for them, people could enter the market without having first spent three largely useless but extremely expensive years in law school.
It is because of those prohibitions that many Americans can’t afford an attorney. As law professor Laurel Rigertas writes in her recent Fordham Law Review article The Legal Profession’s Monopoly: Failing to Protect Consumers, “Much of the public is left wandering around the self-help section of bookstores and self-help kiosks in courthouses trying to figure out how to handle matters on their own.”
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