Removing all licensing requirements to practice law has long been a libertarian wet dream. The dream has received new attention with the publication of First Thing We Do, Let’s Deregulate All the Lawyers, a book by Clifford Winston, Robert Crandall and Vikram Maheshri. I confess that I have not read the books but I have read Winston’s op-ed piece in the New York Times and Jordan Weissman’s less than flattering take on it from The Atlantic (“a lot of it is…completely bunk.”)
One of the peculiar pieces of evidence cited by Winston in support of his argument that we need no standards for practicing law is the “fact” that:
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, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment…
There are lies, damned lies and then there are statistics. Of all the complaints received in 2009, a significant percentage are probably still waiting final action, so I wonder where this statistic one comes from. But let’s assume its true. How does it lead to the conclusion that the current legal licensing system doesn’t do an adequate job of protecting clients? It ignores the fact (the real fact) that far more lawyers are disciplined than are disbarred. The underlying assumption is that there are lots more lawyers that should be disbarred but are not. This is an article of faith among the anti-lawyer crowd, a group that these economists are clearly sympatico with, but what is the evidence for it? Maybe I will have to read the book to find out but my guess is that I will find nothing there beyond the authors’ prejudices. Nobody knows how good a job the discipline system does because there is no way to measure events that would certainly have happened but for the discipline’s systems intervention. Logic tells us that removing one who has behaved badly in the past will prevent that person from behaving badly in the future but unless econometrics has moved beyond mathematics into mysticism, there is no way to quantify that. The small number of lawyers who are disbarred is more likely to mean that the current licensing system does a very good job because the only a very small percentage of lawyers who meet its standards commit serious misconduct.
But let’s assume that this proposition is true: the current discipline system does an inadequate job of weeding out bad actors. How can you possibly leap from this to a conclusion that no system would be better? Winston argues, like all good libertarians, that the magic of marketplace would take care of the substandard lawyers because “ Third-party providers of legal services information could do a service similar to that provided by Consumer Reports and Zagat Survey and effectively regulate the legal profession by monitoring the law firms’ performance and effectiveness.” What planet are these guys living on?
Weissman does a good job of pointing out the absurdity of all this but then stumbles on an issue that is not just a libertarian fantasy but a real live possibility that is already happening in some parts of the world: allowing public investment in law firms. Weissman lauds this as the one area where the authors have a “point”. As Winston puts it
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.
Affordable legal services, coming to a computer screen near you, provided by large corporations, maybe some of the same large corporations that have done such a great job providing financial and banking services in the last decades. This may sound appealing, if you think of human beings as mere consumers of legal services, define them simply as actors in a macroeconomic matrix, homo economicus. This is the modern way of thought, after all. Maybe we just can’t afford to have ideals anymore, including the ideal of an independent legal profession.
Winston cites Abraham Lincoln as an example of a lawyer who could not admitted to practice today. True but the the institution of legal ethics codes, education and admissions requirements and professional discipline was the reaction against the poor state of the legal profession during the time that Lincoln practiced.
As their title, the authors play on one of Shakespeare’s famous quotes, one beloved by those who do not love lawyers. I would bet that the authors either don’t know or don’t care about the actually context of the quote. It comes from Henry Sixth, Part 2 and uttered by Dick the Butcher, who is seeking approval from Jack Cade, who intends to seize power and install himself as an autocrat. Killing all the lawyers, eliminating any independent opposition, is the first step toward Cade;’s communist autocracy. But there is more to Cade than a lust for power; there is a contempt for learning and the law itself:
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny: the three-hooped pot; shall have ten hoops and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king, as king I will be,–
God save your majesty!
I thank you, good people: there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers and worship me their lord.
The first thing we do, let’s kill all the lawyers.
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man? Some say the bee stings: but I say, ’tis the bee’s wax; for I did but seal once to a thing, and I was never mine own man since. How now! who’s there?
Enter some, bringing forward the Clerk of Chatham
The clerk of Chatham: he can write and read and cast accompt.
We took him setting of boys’ copies.
Here’s a villain!
Has a book in his pocket with red letters in’t.
Nay, then, he is a conjurer.
Nay, he can make obligations, and write court-hand.
I am sorry for’t: the man is a proper man, of mine honour; unless I find him guilty, he shall not die. Come hither, sirrah, I must examine thee: what is thy name?
They use to write it on the top of letters: ’twill go hard with you.
Let me alone. Dost thou use to write thy name? or hast thou a mark to thyself, like an honest plain-dealing man?
Sir, I thank God, I have been so well brought up that I can write my name.
He hath confessed: away with him! he’s a villain and a traitor.
Away with him, I say! hang him with his pen and ink-horn about his neck.
Perhaps homo economus has no need for literature, learning or the law. Or any understanding that the independent bar is a bulwark against a society dominated by economic despots. Allowing anyone to practice law is a loony idea that hopefully won’t go anywhere anytime soon. But a bar that is owned by large corporations is a very real possibility, perhaps even a probability. Without a doubt, it would lower the cost of legal services. But what price would we pay for justice?