The Legal Profession and the Case for Fundamental Reform: Access to Justice

Limited access to justice is a reality for most people. It is estimated that the legal profession fails to serve 80 percent of the public and continues to build access barriers for people seeking legal services. The Legal Services Corporation indicates that the problem is particularly acute for low-income Americans because 86 percent of their civil legal problems have not been addressed with adequate or professional legal help.

People representing themselves are at a disadvantage. The National Center for State Courts found, for example, that 75 percent of civil matters in major urban areas had at least one self-represented party; those parties are less likely to prevail in court. Others who cannot afford legal assistance end up stuck in horrific circumstances, such as domestic violence, that should be criminal matters.

A few states have taken preliminary steps to improve access to legal services and some legal scholars and practitioners are clearly concerned about the problem. For example, Judge Richard Posner abruptly retired from the bench in 2017 to assist less-affluent people with valid legal claims because he believed that the courts were not fairly treating litigants who could not afford a lawyer. However, the profession overall is doing little to significantly increase access to justice. The 1 to 2 percent of all legal effort that consists of pro bono service to the poor is not a solution to excessive prices for basic services that most people cannot afford, such as $1500 for a simple contract.

Generally, high prices that persist in an industry can be reduced by additional competition that causes incumbent suppliers to reduce their costs and prices and includes new industry entrants that might become low-cost producers that cause prices to fall even further. Accordingly, Trouble at the Bar calls for deregulating the legal profession to eliminate entry barriers, increase competition, reduce prices, and increase access to justice.

Deregulation encompasses eliminating the American Bar Association's control over legal education and eliminating mandatory state licensing requirements. The ABA accredits law schools that offer an acceptable three-year course of study, which students generally complete—and are often required to complete—before taking a state bar examination to obtain a license to practice law. However, many people who are interested in providing legal services cannot afford the out-of-pocket costs and opportunity cost of not working for three years to obtain a law degree. Those who can often take a high-paying job instead of a lower-paying, public-interest job to pay off their accumulated law school debt.

Eliminating requirements to attend an ABA-accredited law school would allow legal education to evolve and respond to the diverse interests of potential new legal service providers who could help the public without graduating from a costly ABA-accredited law school. Alternative educational institutions would offer new programs, including but not limited to specialized vocational and online courses of study that could be completed in less than a year. Those could greatly expand the provision of effective, low-cost civil legal services.

In addition, new programs would enable college undergraduates to major in and receive a bachelor's degree in law. Some graduates could immediately provide valuable legal services that did not require advanced coursework or considerable experience. Other graduates could complete an accelerated law school program in much less than three years, as occurs in Europe.

Deregulation seeks to increase competition for and alternatives to incumbent suppliers, not to prohibit their existence. So, traditional three-year law schools would continue to exist, and the ABA could continue to accredit law schools, as could any other accrediting institution that develops. The competition from alternative legal education programs would force traditional law schools to reduce their tuition. As a result, more graduates would be less encumbered by debt and more likely to pursue a career in public-interest law.

Entry deregulation would allow any individual to offer legal services without requiring them to obtain a specific legal education and to pass a state bar examination. Again, individuals would be free to attend traditional ABA-accredited law schools, take bar examinations, and acquire any other form of certification. Deregulation would also allow any firm or corporation, including foreign entities, to provide legal services without being owned by lawyers.

Firms in other industries operate ethically as public corporations; the exclusion of corporations providing legal services has been justified on the unsubstantiated grounds that corporations would be conflicted between representing their shareholders and their clients. The evidence from Washington, DC, which permits an Alternative Business Structure with nonlawyer ownership of a law firm, does not indicate that nonlawyer owners have pressured lawyers into ethics violations.

In sum, deregulation would lead to a more heterogeneous supply of lawyers and more intense competition among incumbent law firms and new legal service entrants. New low-cost legal services would be offered, current legal services would be offered at lower prices, and leaders of the global legal service industry would pioneer adoption of technological innovations that further reduce costs and prices for many services.

Some object that deregulation is likely to increase the number of lawyers, which includes legal service providers without a JD from an ABA-accredited law school, when the United States already has too many lawyers. However, this objection fails to consider that the equilibrium of supply and demand determines the number of lawyers.

The current high prices for legal services that reduce demand and the barriers to legal practice that reduce supply suggest that 1.3 million US lawyers are too few, not too many, and help explain why the United States ranks below other countries in terms of the accessibility and affordability of civil legal services. By decreasing the price of legal services and increasing the supply of lawyers, albeit increasing the share of low-cost legal service providers, which, as noted, will be part of the legal profession, and those wishing to practice public-interest law, deregulation would benefit the public by increasing the equilibrium number of lawyers.

Other objections to deregulating the legal profession are based on either a lack of appreciation of deregulation's likely effects or a misunderstanding of what deregulation means. Trouble at the Bar argues that in practice, ABA regulations and education requirements do little to improve the quality of legal services. Scholars continue to debate why ABA regulations and education requirements were even adopted. In any case, states did not quickly adopt them to improve the quality of legal services for an allegedly uninformed public. Indeed, state legislatures took decades to adopt ABA education requirements because many state legislators themselves were graduates of unaccredited law schools and they would have to admit that they were not qualified to practice law!

Market forces have created websites, such as Angie's List and Yelp, as well as social media platforms, which can accurately inform consumers about the quality, reputation, and performance of a broad range of service providers. Similar websites, such as AVVO and Martindale-Hubble, currently exist for lawyers. Others would proliferate, offering even more detailed information about legal service providers for a larger, more discerning, and more heterogenous volume of consumers.

Critics also assert that deregulation of lawyers is tantamount to advocating that doctors should not have to go to medical school, complete residency training, and obtain a license to practice medicine. As noted, no one would have to hire a lawyer who did not go to law school or pass a bar examination. Those who did would undoubtedly require credible evidence that the legal service provider was competent to perform the desired legal service.

Deregulation simply allows the market, not self-interested institutions, to determine the extent and type of legal education and credentials that are appropriate for a lawyer to perform specific services demanded by clients. Clearly, legal service providers who are assisting someone with a basic contract do not need to demonstrate the same level of competence, as indicated by educational degrees and professional accomplishments, as a lawyer representing a client before the Supreme Court or defending a homicide charge.

Finally, critics assert that many jobs, such as social workers, advocates, and paralegals, already exist to help alleviate legal problems, yet they ignore that most of the public is still not served by the legal profession. Deregulation would enable considerably more of the public to afford legal services at prices that, in general, would be markedly below current prices. Thus, the "law of demand" and new sources of supply would greatly expand access to justice.