The Legal Profession Needs More Bars to Entry, Not Fewer

On the New York Times op-ed page today, Clifford Winston asks the question “Are Law Schools and Bar Exams Necessary?” The writer, an economist with the left-ish Brookings Institution think tank, answers with a resounding “no.” They only increase the cost of entry into the profession — and thus the cost of legal services — while doing nothing to ensure the quality, honesty and accountability of the lawyers performing said services.

His diagnosis is on the nose, but his prescription is bad. He is right that simply graduating from an ABA-accredited law school and passing the bar are not sufficient quality control. But his solution — eliminating such barriers to entry — is the exact wrong approach. If anything, the barriers to entry need to be higher.

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Law school, as experienced by most law students, is an enormous investment with little application to the actual practice of law. The first year is great for teaching how to spot issues and do the necessary legal research to answer questions, and for instilling core principles that underlie our jurisprudence. But beyond that first year, the time spent in class after class could be better spent in an apprenticeship where one learns how the law is actually practiced — and more importantly, acquiring the experience and judgment required to advise and deal with clients. Apart from the exceptional few who truly get a lot out of their continuing studies as preparation for real life — in particular, those who take advantage of clinical programs — law school after year 1 is a bit of a wasted opportunity for the run-of-the-mill students

The cost of law school is staggering, but only in part because of the requirements of maintaining ABA accreditation. These costs could be trimmed. The law library is the single greatest mandatory expense, what with the required accumulation of endless paper volumes of statutes, regulations, case law, treatises and their myriad pocket parts and updates. It’s a required expense, but not a necessary one, especially as everything’s been available digitally since forever.

Most of the cost of law school is not mandated, but the result of simple supply-and-demand. Tons of people want to go to law school, either to fulfill a calling or to make money or get status or just kill time until they find themselves. The demand drives up tuitions. Add to that the subsidy of student loans, and the price gets driven ever higher. Costs, on the other hand, remain fairly low. Staffing is not an enormous cost, considering. The ratio of students to professors is huge. When you figure 400 students in a section, each paying however many tens of thousands of dollars in tuition, the salaries of the handful of professors teaching them account for a minor fraction of it. Because of this, and the apparently endless supply of prospective students, law schools are a veritable cash cow — which is why so many have popped into existence in recent decades.

One byproduct of all these new law schools is a dilution of the quality of legal education, and thus the quality of many graduates with a JD. This is not to denigrate those with degrees from lower-tier schools, many of whom provide better services than some top-tier grads after gaining greater experience in the trenches. But whenever someone complains about “too many lawyers,” what they’re really complaining about is “too many bad lawyers.” Making it harder to get into law school, and then making it harder to actually get one of those JDs once there, would weed out many of the incompetent and misguided before they can do any damage to a real client.

The solution is not to abolish law school, but to make it harder and more relevant. Change the accreditation standards away from expense for its own sake (which, like several other such ABA standards like those for evening students, are actually holdovers from an earlier time when they existed to discourage minorities and those who needed to work for a living from joining the profession), and instead make the accreditation turn on selectivity of admissions and the quality of education provided. Require clinical courses (another astronomical expense, but one which makes sense). Require a uniform grade curve, so that performance can be measured accurately across multiple schools. Require practical courses alongside the general and theoretical, especially in the second and third years. Require more rigorous training in practical ethics, not just the bare-minimum survey everyone’s been doing since the ’70s.

Don’t eliminate the barrier; make it meaningful.

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With respect to the bar exam, as we’ve said before, nobody in their right mind believes that the bar exam is a reliable indicator of who is or isn’t going to make a good lawyer. It doesn’t test any of the stuff lawyers actually need to know — how to advise this client, how to plan for contingencies and deal with them before they arise, how to get this piece of evidence admitted, how to draft that particular contract, how to write that particular will so the family doesn’t kill each other ten years from now.

All the bar exam tests is the ability to cram, memorize, and regurgitate. It doesn’t even require much proficiency, at that. A passing grade — a D — is all that’s needed. As bars go, this one ain’t that high.

The bar exam is more of a hazing ritual than a measure of quality. More along the lines of “we had to go through it, so you’re gonna have to go through it, too.” It’s not really there to ensure a minimum standard of ability, and it doesn’t even test for ability to practice. It’s just a rite of passage, one last effort to weed out those few who are so obviously incapable that they can’t even pass this.

As with law school, the answer is not to eliminate the barrier, but to make it meaningful.

How can the bar exam be meaningful? It should be practice-specific. Those who would defend the lives and liberty of criminal defendants need to prove they know what they’re doing. Those who would handle estates and end-of-life issues need to demonstrate the judgment and knowledge necessary to protect the interests of those who cannot speak for themselves, without doing further harm. Those who would work on transactional deals need to show they can protect their client’s assets and livelihoods. It would be more akin to a board certification in medicine.

And unlike the bar exam, you wouldn’t just take it once. The law changes, necessary skills change, people change. A lawyer who was just fine in criminal law ten years ago, but who hasn’t kept up with changes in the law and the courts, could be shockingly bad today. Re-certification should be required periodically.  Once every five years or so would seem best to keep pace with the rest of the world. And for those who actually practice and know what they’re doing, this shouldn’t be anything to worry about.

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But Mr. Winston argues not to increase the barriers to entry, but to remove them. Why?

Eliminating the need for a JD would let non-lawyers compete with lawyers. Non-lawyers who don’t have to pay back all those student loans, who don’t incur all the same costs of entering the profession, could compete better on price. This would drive down the cost of legal representation, and so benefit “the poor.” (He also mentions those “who might be unrepresented in criminal matters like hearings because they could not afford a lawyer,” but that’s not really a concern what with Gideon and Wainwright and all.) Costs would also be driven down by a Wal-Mart economy of scale and corporate-driven efficiency (an odd position for a Brookings scholar to take, we’d have thought).

Lower prices would create more employment for new JDs, because they’d be paid less (increasing supply of positions) and the demand for their services would go up as prices fell.

For reasons that are unclear, he says his solution would also enhance consumer choice by enabling more and better “Consumer Reports”-like ratings of lawyer quality. Clients Consumers would be able to weed out the truly competent from the dishonest and incompetent. Consumers would come to know what credentials and evaluations are more useful, and which are not, for evaluating lawyers.

That’s pretty much it.

The problem is not that clients are being priced out of representation, however. People who need a lawyer in this country are rarely unable to find one. It may hurt to pay for it, but when a lawyer is really needed, the obstacles are rarely insurmountable. And there are lawyers serving pretty much every price point, including free. The purported problem is a false one, and so does not call out for a solution. Furthermore, efficiency pricing à la Wal-Mart is only useful for a handful of services which involve high volumes of extremely uniform matters. Legal services involving any degree of individual variation require greater investments of time and thought, which are deadly to an efficiency practice. Either the client requiring individual attention doesn’t get it (see Malpractice, this index), or the volume must be reduced to deal with it. In most legal practices, this simply doesn’t work.

Nor is it true that that the (admitted) dearth of meaningful criteria for comparison of lawyers is caused by the barriers to entering the profession. Letting more people provide legal services does not create more opportunities for meaningful evaluation. On the contrary, it just creates more opportunity for dishonesty, as ethics rules for lawyer advertising are supplanted by the cost-benefit considerations of mere commercial speech. It would only be easier to tout one’s supposed credentials, without making it any easier to check their validity. An organized effort to evaluate individual lawyers is doomed to failure, given the vast number of lawyers to be assessed (Avvo, mentioned in the op-ed, already tries to do this, but is limited to assessment of public records, scatter-shot client reviews, and self-serving lawyer participation).

He gives undue weight to client consumer reviews, saying that “by sharing their experiences, consumers would understand more fully which credentials and evaluations are the most accurate and useful signals of competence and value.” Nothing could be further from the truth. Clients are usually very bad at determining which traits are useful in evaluating a potential lawyer. The important traits are sound judgment, thorough relevant knowledge, meaningful experience (or a proven ability to learn fast in younger models), and demonstrable skills and a track record. Clients tend not to be able to assess these things themselves, and so (when they are wise) get referrals from trusted lawyers and from others they know who have already gone through the experience and found out what made their lawyer good or bad. When they are unwise, clients focus on less-important, sometimes bizarre, criteria (though these are probably clients a good lawyer doesn’t want to deal with in the first place).

Moreover, different clients value different things. Most consumers of legal services, believe it or not, value other things more highly than price. A criminal defendant’s freedom and reputation, for example, may powerfully overshadow concerns with the cost of representation. A business owner looking to do a deal may be much more concerned with a job well done than with finding the lowest-cost provider. Other clients may not value results as highly, but may still place more value on their relationship with counsel, or on consistency, or on availability, or on any number of other considerations all vastly more important than price. The clients who are most concerned with price tend to be those seeking rudimentary services (which we agree often don’t really require a JD to perform), and they are a small minority.

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Those who seek to remove the barriers to entering the profession would do a disservice to the very clients they seek to help. Clients need more competent lawyers, not more lawyers to choose from. Making it easier for any random ass to offer legal services only increases the odds that some poor soul will pay for them, and suffer badly for it. It can only increase the odds of an unsophisticated person, in real need of help, simply getting shafted instead.

People go to lawyers when they need help, when they need someone to handle their affairs for them in an important way. The client puts his trust, his property, his life, in another person’s hands. Those hands need to be safe. Letting market forces eventually shake out all the unsafe hands is not how you do it.

The fact that this even needs to be said is shocking.

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  1. Pingback: Competition Law, Policy and the Apparent Oversupply of Lawyers in the U.S. | My Distribution Law on March 25, 2012

3 Comments

  1. Howard Ullman, March 25, 2012:

    Excellent post. For a related discussion, see “Competition Law, Policy and the Apparent Oversupply of Lawyers in the U.S.,” http://www.mydistributionlaw.com/?p=657 .

  2. Nick, June 4, 2012:

    Enjoyed this article and the points made about improving the bars to entry; however, given the fact that you yourself argue “the bar is [not] a reliable indicator of who is or isn’t going to make a good lawyer,” and given the fact that you argue that the last two years of law school are “a bit of a wasted opportunity,” it seems that it would be easy then to argue in favor of at least abolishing the aforementioned problems, then perhaps considering what should, if anything, take their place.

    I certainly think making the barriers to entry “meaningful” is a great idea; however, why not abolish them altogether and let the private sector compete for making these entries meaningful? For instance, if this was the case, most likely private companies would emerge that specialize in certifying lawyers based on requirements that they deem “essential.” These private companies, if they cared about long-term profit, would build a reputation on “certifying good/competent lawyers.” Then consumers can simply ask, are your lawyers certified by such-and-such company? If not, they probably won’t spend their $ at that firm.

    The only problem I see with your solution to creating meaningful barriers is that (and I might be wrong here because you didn’t specify “who” makes the meaningful barriers), some government organization, some ONE body or committee, will have the sole right to decide what is meaningful and what isn’t; to decide what knowledge is revelant to a particular field of law; to decide an appropriate time for re-certification; and to decide a myriad of other things related to the regulation of lawyers.

    Who chooses these people? What credentials give the committe the sole right to decide such things, and who decides what credentials are important and what aren’t? And why do the people who choose these people have the power to choose them? So the indefinite regress occurrs. I’d rather eliminate this whole problem by having the market, i.e., the collective individual choices of many, choose rather than the edict of a few “higher-ups.”

    The bottom line is: as consumers, I think it’s important that WE have that right. If that right is granted to the government, then the consumer’s choice is limited as to who he uses for his laywer.

    So in other words–I like your solutions–but I think if we let the free market regulate, either by means of private companies whose reputation is built upon recommending good lawyers (say, by some stamp of approval by which practicing lawyers can receive after fulfilling certain requirements), or through consumer reviews, etc., that this solution would fair far better than the government trying to do it, when the government wouldn’t have the same incentives (i.e. profit) as private credentialing companies would to govern and regulate their lawyers.

    Hope that makes sense. Kind of wrote it on the fly.

    cheers!
    Nick

  3. Manny, June 10, 2012:

    Nick is absolutely right. Most state licensing boards are incredibly corrupt. John Stossel did a great report on that where the people running the boards were in the professions they were regulating themselves and would “cut out” people who were perfectly proficient but who just happened to want to be in business in the same area as someone on the board was.
    A private company who did the same thing would not be in business for long and would have to be held to a higher standard and the quality would increase.
    One thing I was confused about however, was the thought about continued re-certification. Does the state you practice on not require CLE as a way to keep your ability to practice active? I know CA and IL do. Do you want more hours of CLE required or simply a larger bar-like exam to re-certify people?

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