American Bar Association / ABA, Bar Exams, Law Schools, New York Times

New York Times Op-Ed Advocates Letting Everybody Play 'Lawyer'

Occasionally lawyers have to deal with op-eds like the one just featured in the New York Times. Clifford Winston of the Brookings Institution argues that everybody should be allowed to practice law. Seriously, everybody. No law school, no bar exam, if you want to do legal work, go right ahead. Somehow Winston believes that allowing untrained dumbasses to take advantage of poor people who don't know any better will magically help poor people....

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It’s the danger of working in a profession that few people respect. The general public understands that not everybody can practice medicine: performing surgeries, prescribing drugs, and even giving advice about surgeries and drugs are things best left to “professionals.” Or look at accountants. People want to have one who is “certified” because, well, math is hard.

But lawyers? Annoying, money grubbing, bastard lawyers? Hell, anybody can do that. That’s what the general public thinks: anybody who is anal and can read can be a lawyer.

And because of that, occasionally lawyers have to deal with op-eds like the one just featured in the New York Times. Clifford Winston of the Brookings Institution argues that everybody should be allowed to practice law.

Seriously, everybody. No law school, no bar exam, if you want to do legal work, go right ahead. If you want to charge people for your uneducated legal advice, feel free!

Somehow Winston believes that allowing untrained dumbasses to take advantage of poor people who don’t know any better will magically help poor people….

The basic argument is that the current barriers to entry for being a lawyer artificially raise the cost of legal services. He also believes that the current barriers don’t really do a good job of protecting consumers as it is.

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Both of these observations are pretty accurate. Law schools cost too much, and people who invest three years to obtain specialized training are reluctant to give away their skills for free. But because there are so many law schools, all of them poorly regulated by the American Bar Association, quality control within the legal profession is pretty low.

It’d be interesting to have a serious discussion on how to bring costs down while increasing the quality of legal services.

Sadly, that’s not the discussion Clifford Winston wants to have. Instead, Winston’s solution is to let everybody play:

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.

Winston goes on like this for some time, but there are enough faulty assumptions here in this thesis paragraph that we should give it a closer look.

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First of all, I love it when people randomly pick something that sounds like it should be simple as an example of why we don’t need lawyers. Sure, drafting a will can be simple — and there documents available if you want to draft your own simple will. But drafting a will can also be complicated. More importantly, if you have assets to distribute, getting those complications correct is extremely important. Anybody can draft a will, but not everybody can draft a will that actually means what the client wants it to mean. Making that happen is the job of a competent attorney.

Inherent to Winston’s assumptions is that rich people will still seek out highly trained professionals and pay them well for their expertise to complete “basic” legal tasks. What Winston is really going for is a system he thinks will provide low cost legal services to poor people.

Winston seems to not understand the difference between quantity and quality. Take indigent criminal defendants. These people have lawyers — we call them public defenders. Sure, we don’t have enough people willing to be public defenders, but an even bigger problem is that many public defenders stink. Of course they do. Good criminal defense attorneys expect to be well paid for their work.

There is, of course, nothing in Winston’s plan that will change the dynamic of qualified people expecting to be paid well. Instead, Winston thinks that flooding the market with crappy attorneys will help poor people get access to really bad legal services.

Sorry, I should say Winston thinks that flooding the market with untrained hucksters advertising legal expertise is a good thing — notwithstanding all the fraud that is sure to befall the poor who are in need of legal services.

Here’s the most questionable thing Winston says:

Consumers would be in a position to demand credible and complete information about a practitioner. Incompetent and dishonest lawyers would face immediate exposure over social and legal networks, thereby alerting other consumers of potential problems with their services. By sharing their experiences, consumers would understand more fully which credentials and evaluations are the most accurate and useful signals of competence and value.

Christ on a stick. Barriers to entry do not prevent consumers from doing this now, and yet it doesn’t happen. There are incompetent and dishonest lawyers now who do not face “immediate exposure over social and legal networks.” There are incompetent and dishonest lawyers that we feature who still have thriving practices.

Winston says that legal professionals are the one resisting his changes, but actually common sense is Winston’s biggest enemy. For a full take-down of all of his spurious arguments, read this piece by Carolyn Elefant.

So how does something like this end up in major newspapers, like the Times, and in books, like Winston’s First Thing We Do, Let’s Deregulate All the Lawyers (affiliate link)? I think it all goes back to the general public’s distrust and dislike of lawyers and the legal profession. People like to believe that you don’t need anything more than common sense to be a good attorney. In support of his argument, Winston literally references Abraham Lincoln as an example of a self-taught lawyer who didn’t need law school or a bar exam to practice his trade.

Do you know how much more complicated “the law” has become since 18-freaking-50? For the love of God, Lincoln never had to learn about the 14th Amendment’s due process requirements, because the thing didn’t exist. Being a lawyer, a competent lawyer, requires specialized training — more than was necessary in our antebellum, agricultural society.

The law, to the eternal frustration of some people, has little to do with common sense. Common sense would suggest that in my will I could specify how I wanted my property to be used in perpetuity. A lawyer would know that there is a rule against that.

Maybe if Winston actually went to law school, he’d understand what lawyers do and why they need to be trained.

Are Law Schools and Bar Exams Necessary? [New York Times]
No Need to Deregulate Lawyers if We Debunk An Economist [My Shingle]
Winston’s First Thing We Do, Let’s Deregulate All the Lawyers [Amazon (affiliate link)]

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