Cartel Control of Attorney Licensure and the Public Interest
San Diego Legal Studies Paper No. 19-387
British Journal of American Legal Studies 18
39 Pages Posted: 16 May 2019 Last revised: 7 Jun 2019
Date Written: 2019
The purpose of licensure is to assure competent practitioners, particularly where irreparable harm to clients may occur in its absence. At the same time, there may be an advantage to greater supply, because that can lead to lower prices. In the case of attorneys, additional supply can improve attorney access not just to the poor, but to the middle class now lacking it. Regrettably, the legal profession --which openly operates in cartel fashion as its own public regulator -- has violated thesebasic precepts in extemis, with California serving as a preeminent example.
First, state bars -- in combination with the American Bar Association national cartel -- require 4 years of largely irrelevant higher education for law school entry, most of which have little or nothing to do with law and include subjects ranging from "Sex and the human body" to "yoga." Meanwhile, the rest of the world requires 1 or 2 years of lead-in). Second, the entire 7 year total travail -- driven by high tuition increases lacking competitive check -- now costs from $190,000 to $380,000 in tuition and room &board per student. Third, attorneys will practice in one of 24 dispararate areas of law, from admiralty to probate with different applicable law and often entirely disparate courts. 1 But attorney training focuses on traditional subjects only partially relevant to the majority of them, with scant attention to legislation and administrative proceedings. Even less attention is paid to the actual area of law a student will choose and have to know in order to practice competently. Upon graduation, students take an increasingly expensive preparatory course -- to pass a supply constricting bar examination that only tangentially relates to underlying competence. In the largest state of California that examination then flunks about 2/3 of its takers.
Meanwhile, the bars regulating attorneys in the respective states:
(a) Do not rank negligent acts as a normal basis for discipline (outside of extreme incapacity).
(b) Do not require malpractice insurance -- effectively denying consumer remedies for negligence since plaintiff malpractice attorneys require insurance or other payment assurance.
(c) Where setting up "client security funds" to compensate injured clients -- most only include theft in that coverage (not malpractice, even where there is a judgment).
(d) Upon licensure as an attorney, state bars sometimes require "continuing legal education" by programs advocating for their remunerative purchase -- but do not consistently require them to be in the area of an attorney's actual practice.
(e) Most significantly, they never test attorneys in the area of actual practice relied upon by consumers -- ever. Even in areas of law where clients are unable to gauge competence and a single case can mean ruination.
(f) They confront modern technology approaches to provide legal information and assistance not to stimulate and regulate for accuracy, but as an affront warranting elimination in favor of exclusive reliance on counsel.
Finally, no area of state regulation more ostentatiously violates federal antitrust law than does the legal profession. Following the North Carolina 2005 Supreme Court case holding that any state body controlled by "active participants" in the profession regulated was not a legitimate sovereign entity for antitrust purposes, the legal profession continues to violate that holding. That Sherman Act coverage includes the per se violative offense of price fixing from supply control (i.e. licensing). The only defense is to provide "active supervision" by a state body not so conflicted. In theory, that could be a state supreme court. However, such courts tend to be inherently passive and not amenable to "active" supervision as mandated, or they delegate information gathering and decisions impermissibly to attorneys -- because that is their unsurprising mindset.
Keywords: Attorney licensure, public interest, state regulatory boards, American Bar Association, law school, legal education
JEL Classification: K10
Suggested Citation: Suggested Citation