In last Monday’s New York Times, I saw this little gem from Clifford Winston of the Brookings Institution. Mr. Winston argues that law schools and state bars have operated to preserve the “monopoly” lawyers have on the practice of law, including the preparation of wills and similar forms. Apparently, Mr. Winston hasn’t been to Office Depot recently.
But the more significant point of Mr. Winston’s argument is his position that the practice of law should be thrown open to all comers, regardless of education, licensure, or anything else; that it should be a laissez-faire marketplace—a wild west—with no restrictions on those offering services, because, of course, any idiot can practice law.
Mr. Winston argues that state bars don’t actually do anything other than protect lawyers from competition. They don’t protect consumers from incompetent or unethical lawyers, and here’s his proof: “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.” Apparently, Mr. Winston has never heard of such a thing as a non-meritorious complaint or a sanction short of the maximum. Indeed, in Mr. Winston’s world, it appears you either get the death penalty for jaywalking or we should just throw out all the traffic signs.
Mr. Winston claims that this sort of open marketplace would allow consumers to demand open information about their lawyers. But what stops them now? In Texas, anyone can find out about disciplinary action taken against a practicing lawyer by contacting the state bar.
Mr. Winston points to the legal-information provider Avvo as a source of information for consumers. In particular, he notes that Avvo has fought states for the right to obtain information about attorneys’ licensing and disciplinary records. But he fails to note significant biases in Avvo’s ratings. Avvo allows two types of recommendations—those from clients and those from other attorneys, the former having no effect on an attorney’s “Avvo rating” and the latter having significant effect. But it’s not just any attorney’s recommendation that will boost an Avvo rating. Only the recommendation of an attorney who is himself registered with Avvo counts toward the rating. And, why not? Because Avvo is ultimately in the business of advertising lawyers, not rating them. In short, Avvo suffers from the same bias Mr. Winston ascribes to any state bar—voluntary association automatically creates credibility. Of course, in the case of the state bar, one must at least graduate law school and pass a bar exam. Avvo requires only a thirty-second sign-up process.
I am no great fan of the State Bar of Texas. I believe it is an institution that exists, in large part, for its own propagation and for the benefit of its officeholders. It is a far cry from the self-regulating, grassroots organization that it was when it began. Is the state bar the best mechanism for regulation of the legal profession? Perhaps not, at least in its current form. But is Mr. Winston’s vision of a laissez-faire marketplace, where consumers have to guess at the competency of their counsel, and minimal legal education is anything but guaranteed, an improvement? I rather doubt it.