Legal Laments
Lawyers on Trial, by Philip M. Stern, New York: Time Books, 1980, 265 pp., $12.50.
It was once remarked of 13th-century poverty lawyer Saint Ives that "he was a lawyer, yet not a rascal, and the people were astonished." Attorney and author Philip Stern has written a sharp, polemical book analyzing why lawyers are generally held in such low regard.
Stern begins his attack on lawyers by charging that "justice is for sale to the highest bidder, with the highest bidders—the richest among us, the giant corporations and some wealthy individuals—getting most of it." How do they get away with it, he asks? By effectively overruling competitive free-market forces through state regulation.
He explores several levels of regulation:
Law School Accreditation. The American Bar Association and state bars have pushed states to require students to attend accredited law schools and have busily promulgated scores of regulations, many only tenuously related to educational quality. Stanford Law School Dean Charles Meyers suggests that "the contention that regulation is a guaranty of quality is, in my view, more an act of faith than an established fact."
Indeed, the California State Bar again is attempting to shut down California's unaccredited law schools, California being the only state in which unaccredited law school graduates can sit for the bar examination. California State Bar President William Wenke recently declared that "not everybody should be allowed to practice law."
The Bar Exam. Stern points out the bar exam's many inconsistencies (for example: requiring the exam assumes that even the graduates of accredited schools are not qualified to practice law), questions its efficacy, and charges that it creates a barrier to the practice of law. Others share his concerns. For example, Richard J. Favretto, deputy director of operations of the Antitrust Division of the Justice Department notes that "one should be suspicious of any system in which those in the market determine who can enter; the natural incentive is to make things a bit tougher as increasing supply threatens to bring down fees."
Good Moral Character. Stern exposes the blatant hypocrisy behind the requirement that one be of "good moral character" to practice law. The focus, he argues, is all too often on antiestablishment views and activities and not on matters relating to consumer protection. In 1979 the Virginia State Bar even attempted to prevent an unmarried woman from taking the bar exam because she was living with a man.
Business Practices. Stern presents a searing indictment of organized bar practices, noting that "the bar has succeeded in stifling any price-cutting competition from within the profession." It has done so by outlawing advertising and setting fixed-fee schedules, banning solicitation, and restricting legal clinics and legal insurance. Only recently have some of these practices been voided or modified by the courts.
Even more important, the profession has stifled outside competition by suing nonlawyers for the "unauthorized practice of law"—doing (indeed, doing well) "lawyers' work." This is solely a device of monopoly preservation; the Wisconsin Supreme Court declared in 1962 that "we need not and we should not acknowledge a layman's right to practice law in a specialized field because the layman appears to be competent in it."
Discipline. Finally, the inherent reluctance of the bar to police itself is demonstrated. Stern argues that 90 percent of complaints are dismissed without an investigation, and only 2 percent ultimately result in some discipline. He cites the conclusions of a 1970 ABA panel headed by a former Supreme Court justice that the situation is "scandalous."
Not that this should be surprising. Lawyers within a sheltered monopoly have little incentive to crack down on their errant brethren. Only the force of competition will compel lawyers to be "ethically competitive."
Legislated Legal Fees. Many states arbitrarily set excessive fees for often routine work, such as probate and house sales, forcibly enriching lawyers and impoverishing clients. As Wisconsin probate reformer Walter Heiden has observed, "Estates should be left to loved ones, not to attorneys."
However, while Stern relentlessly dissects the bankruptcy of state regulation, he allows himself to be sidetracked by his instincts for coerced egalitarianism. For example, he bemoans the fact that taxpayers are not forced to subsidize "public interest" lawyers, who, far more often than not, support broad extensions of State power. He also supports pure no-fault insurance, which would prohibit victims from seeking recompense.
Further, he complains about attorneys' (most lobbyists are culled from the legal profession) "special access to the ears of decision makers." He fails to recognize that what matters is not so much the access of the lobbyist but the unwarranted power of the decisionmaker.
This diversion leads him to some disappointing proposals. Stern's pièce de résistance is a National Legal Service to provide free legal services to all, with members of the private bar forced to do a certain amount of NLS work. Related to this is the idea of government funding of "public interest" (his special interest) lawsuits.
Stern ignores the immorality of forcing taxpayers to fund a new bureaucracy and lawsuits they may oppose and forcing private attorneys to participate. He denies the clear experience of socialized medicine: skyrocketing costs, deteriorating quality, and dehumanized care. And he fails to recognize the irony of proposing what amounts to a full employment act for lawyers.
Thankfully, Stern does propose breaking up the lawyers' monopoly, reducing people's dependence on legal experts, and facilitating class action suits. But he does not discuss the organizations behind such reform proposals, such as HALT (Help Abolish Legal Tyranny).
Lawyers on Trial bluntly, and occasionally brilliantly, exposes the system of monopoly exploitation erected by the organized bar and sustained by the State. Though Stern's commitment to coercing people to support his vision of the public good at times blinds him, the book is an important shot in the battle to reestablish the primacy of individual liberty in the legal profession.
Doug Bandow is a domestic policy advisor on the White House staff.