A popular wisdom attributed to Lord Acton but perhaps based on a sentiment uttered more than 100 years before by William Pitt, the Elder, is that “power tends to corrupt, and absolute power corrupts absolutely.“
Many examples of the corruption of power in the legal field can surely be found, but the greatest corruption of all is perhaps the very fact that the judges (lawyers all) and the bar associations of attorneys assist the legal profession in maintaining a shameful and societally unnecessary legal monopoly on the provision of legal services, resulting in vastly inflated legal costs to citizens.
There is not the slightest bit of modern empirical evidence to justify the necessity of this monopoly, especially in the hands of the allegedly self-ruling and self-important State “bars”, which could all be dispensed with and be better replaced by a uniform national licensing system – but who in the law is willing to give up the power that they wield? Hardly anyone.
Quite the contrary, the bars exist quite openly to prolong the monopoly and to maintain the small and elite numbers of those wielding this monopolistic power. We are not complaining here, by the way, but that is just the way that it is. The legal monopoly, as any monopoly, is a racket, and a very profitable one at that. It is an anachronistic, totally outdated vestige of the ancient guild system, maintained in the professions.
James C. Turner, Thomas M. Gordon, and Steven E. Serdikoff of HALT–An Organization of Americans for Legal Reform in their article, Consumers of Legal Services: Unprotected and Under-served, write in the Abstract as follows:
“One of the true ironies in the emergence of consumer law is that while its protections reach a wide range of economic activity, as varied as credit card purchases and charitable giving, it has largely failed to reach a sector where consumers spend billions of dollars each year – legal services. Because the practice of law is considered a profession and attorneys are licensed by the judicial branch of government, a system of self-regulation has emerged over the past two hundred years. Not only has this system utterly failed to protect consumers, but its existence has prevented the development of other, more effective, safeguards for those who use legal services. In addition, the system of attorney self-regulation has been abused to maintain a monopoly on the delivery of legal services, which denies consumers the ability to choose more affordable alternatives to hiring a lawyer. This paper assesses the current system of attorney self-regulation and its impact upon consumer rights, and suggests possible reforms to empower and protect consumers of legal services.”
You can read that article in full here. The first two paragraphs of the introduction are germane to our discussion:
“Today, consumers who use our civil justice system have no meaningful protection from unscrupulous lawyers who take their money and fail to provide the services that they are paid to perform. The system of attorney self-regulation is an abject failure and lawyers’ so-called “Rules of Professional Responsibility” do not require attorneys to provide even the most basic consumer information to prospective clients. This remarkable state of affairs contributes to widespread popular distrust of lawyers, and erodes consumer confidence in the fundamental fairness of our civil justice system. By educating people about their rights and empowering them to deal with the legal system on their own, the consumer advocacy community can begin to extend real safeguards to this last remaining economic sector where the public is largely unprotected.
We also face a crisis in access to our civil justice system that affects consumers nationwide. Each year, thirty-eight million low and moderate income households need legal help, but are denied access to the American civil justice system, according to the American Bar Association. The vast majority of Americans who require legal assistance continue to have unmet needs because they simply cannot afford the $100 or more per hour in fees it takes to hire a lawyer. Part of the solution to this crisis in access lies in expanding the availability of less expensive legal services provided by non-lawyers. Instead of embracing these innovative methods of expanding access to the civil justice system, however, bar associations in state after state are misusing statutes that prohibit the “unauthorized practice of law” to threaten and intimidate non-lawyers who provide legal help to those who can’t afford an attorney. By supporting efforts to make innovative alternatives available, particularly to low and moderate income households, the consumer advocacy community can help to ensure that all Americans have access to our legal system.” [emphasis added by LawPundit]
The existence of the monopoly on legal services is in fact not based on any “necessity” or “social value” but is rather to be traced back to the historical function of the law as the right hand of the ruling power(s).
Since all monopolies corrupt and because the monopoly of the legal profession on the provision of legal services is no exception, it is no surprise to find a new attack by a State bar, this time on the provision of online legal information by people who are not members of the bar. As we can read in a posting by Richard Granat at Law That You Can Afford titled Connecticut Bar Attacks Non-Law Firm Legal Web Sites:
“the Chair of a Connecticut Bar Task Force examining non–lawyer legal information web sites, believes that these web sites are breaking the law by providing legal services in a state in which they’re not licensed to practice, as reported in the Connecticut Law Tribune.“
Granat points to the obvious solution to this problem:
“If the Connecticut Bar can’t distinguish between their self-interest in maintaining a monopoly over the delivery of legal services and the public’s right to legal information … perhaps the citizens of Connecticut should either strip the bar of its self-regulatory power, or further define what the “practice of law” means. That is what the citizens of Texas did, when the Texas Bar attempted to ban self-help law books and self-help legal software from being sold in the State of Texas.“
Unfortunately, the Connecticut Bar is not an isolated case. Legal monopolists can be found everywhere. HALT has listed some of its activities in battling against the monopolistic bar associations as follows:
“Here are just a few of our highlights from three decades of legal reform.
1978—HALT–Help Abolish Legal Tyranny is founded to serve as the lone voice for America’s legal consumers.
1979—HALT publishes its first Citizens Legal Manual, Shopping for a Lawyer, to help consumers take control of their attorney-client relationships right from the start.
1984—Rosemary Furman, a legal secretary and stenographer, is sentenced to 30 days in jail after the Florida State Bar Association prosecutes her for filling out simple legal forms for people who can’t afford the exorbitant fees lawyers charge for the same service. She is only given a reprieve after the governor steps in, but she is barred from providing any future legal services.
1986—HALT hosts its first National Legal Reform Conference.
1996—The Virginia State Bar Association proposes banning nonlawyers from conducting real estate closings even though the practice has been in place in Virginia for nearly 15 years. The Bar Association only backs down when HALT, the Department of Justice and the Federal Trade Commission urge them to reject the proposal.
1998—HALT publishes a first of its kind consumer guide, Do-It-Yourself Law, to educate consumers about the growing number of self help kits, books and software programs on the market.
1999—HALT and other consumer advocates intervene after members of the Texas Bar Association get a federal judge to ban the sale or distribution of a software package, Quicken Family Lawyer, because they claim it is a “cyber lawyer” and therefore violates the state’s practice of law rules. The power grab only fails because HALT and other consumer advocates appeal to a higher court and the state legislature.
2002—HALT releases a national Report Card on Small Claims Courts and a national Report Card on Lawyer Discipline.
2003—The Arizona Supreme Court is forced to retreat from an earlier proposal that defined the practice of law far too broadly. The rule is only adopted after they provide an exception for certified legal document preparers.
2003—HALT forces the American Bar Association to back off from its controversial proposal to create a model definition of the practice of law which would have barred anyone but lawyers from providing any service that even remotely involved a legal question.
2005—HALT and other consumer groups persuade Governor Arnold Schwarzenegger to sign sweeping small claims reform legislation into law that raises the dollar limit, improves the quality of small claims judges and mandates improvements to the small claims advisory system.
2008—The Wisconsin Bar Association attempts to redefine the practice of law to cover every legal service imaginable. HALT steps in and, in comments to the Wisconsin Supreme Court, addresses the current legal accessibility crisis and urges them to reject the state bar association’s proposed rule. The State bar asks the Court for additional time to reconsider the issue.
2008—HALT turns 30!
2008—HALT launches http://www.fred rodell.com—to bring exposure to the critical legal reform thinking and key writings of the late Yale law professor and former HALT Advisory Board member Fred Rodell. The Web site posts Rodell’s out-of-print book, Woe Unto You Lawyers! “
We do not agree that there should be woe unto the lawyers. Law is a very important profession and its top echelons are filled with the best brains of the country. Every successful modern nation needs bright and competent people to run temporal affairs and there is no doubt from our side that law professionals are best suited among all the professions to do so – indeed, one of the disturbing things about recent elections to the U.S. Congress is the increasing number of elected representatives of the people who are not trained in the law and are often ill-prepared to fulfill their responsibilities.
Nevertheless, there is no need for the kind of monopoly that marks the practice of law today and no need for bar associations in their present monopolistic form. The exercise and application of power in the form of the rule of law is the basic realm of the practice of law and there is no reason to restrict that exercise to bar associations or their members.