Should you have to attend law school, and pass a bar exam to practice law? It seems to me like lawyering is not much different than being an accountant or financial advisor, or at least not different enough to justify a near monopolistic licensing system. This article talks about the subject a bit. What do you guys think?
There’s some similarity to being an accountant - or, more specifically, being a CPA. Like lawyers, CPAs are held to certain standards of the profession. I cannot hire a CPA and tell him to bless my bookkeeping practices, no matter how outlandish they may be. Although I hire the CPA, he owes a duty to the standards of his profession, and he cannot breach that duty in service of his clients.
This is the difference between “financial advisor” or “accountant” and CPA. Anyone can call himself a financial advisor. But when the requirements of the job include fidelity to a set of standards and practices that transcend the needs of a given client, you need a licensed profession. That’s where CPAs - and lawyers - come into play.
Yes, lawyer licensing is necessary. The clients who seek the assistance of lawyers are often vulnerable, often in a crisis in their lives, and often have some assets. That’s a combination that is ripe for abuse.
As any cop who investigates fraud claims will tell you, there are a lot of bad apples out there in the general population who can talk a persuasive line and are willing to prey on the vulnerable. There’s no way to prevent such nasties from trying to rip people off, but you can take steps to make sure they’re not in a position of particular influence, authority and respect, such as the legal profession. There are also, to be frank, a lot of dumb people who are willing to get in over their heads without even knowing that’s what they’ve done. You don’t want them giving legal advice to the public.
Lawyer licensing is a particular type of consumer protection, designed to protect individuals from the incompetant and the unscrupulous, and to ensure that they get honest, reasonably competant advice and representation. Bad advice and bad representation can make a difficult situation far, far worse, let alone what can happen if you’re dealing with an outright crook holding himself out as someone skilled in the law.
Here’s what the regulation of lawyers provides in Canada (YMMV in other jurisdictions). First, there’s the competency requirements:
[ul]
[li]a reasonable level of intelligence in lawyers, via the fact that a lawyer has to complete an undergraduate university degree with high marks before even getting into law school, and then complete the law degree;[/li][li]three years’ training in the law, which is increasingly complex; [/li][li]a one-year apprenticeship (called “articles”) with a lawyer of at least 5 years’ experience to get the practical training in legal practice that the law schools are not meant to provide;[/li][li]requirements for Continuing Legal Education to maintain reasonable standards;[/li][li]a Code of Conduct that lawyers are required to follow.[/ul][/li]
And then, there are the consumer protection/policing powers of the Law Society:
[ul][li]a criminal record check before being called to the bar, and an ongoing requirement to advise the Law Society of any subsequent criminal charges;[/li][li]a duty to self-report serious personal financial troubles to the Law Society, such as personal bankruptcy;[/li][li]mandatory insurance coverage for professional negligence;[/li][li]a duty to self-report potential professional negligence to the Law Society’s insurer and to the client;[/li][li]a requirement to keep clients’ funds separate and apart from our own, in a trust account, with monthly statements to the Law Society’s auditors;[/li][li]the power of the Law Society to swoop in on a moment’s notice and conduct spot audits;[/li][li]the power of the Law Society to receive complaints from the public and clients and swoop in to inspect any lawyers’ files;[/li][li]disciplinary powers that can range from a requiring a lawyer to take CLE/practice improvementcourses, to fines, reimbusement, and disbarment.[/li][/ul]And finally, if all of these steps fail and there is the rare case of a dishonest lawyer who rips off clients, we as lawyers have a collective responsibilty to the clients of that dishonest lawyer, to cover any clients’ losses from such thefts. We do that by mandatory contributions to a Law Society fund to cover any theft from a client that is not covered by the insurance policy. (And in my particular jurisdiction, we are proud to say that our defalcation fund has always re-imbursed any clients’ uninsured losses 100%, even if that means we all have to pony up special levies to the defalcation fund.)
I can’t see any way that these substantial protections can be provided by an unregulated, free market in legal services.
(And, I would question the OP’s initial comments about accountants and financial planners. Accountants in Canada are subject to licensing/professional regulatory bodies similar to the Law Societies, and there is an increasing more to bring financial planners into similar regulatory systems.)
Hey, Larry Ribstein was my prof!
I wouldn’t take his arguments too seriously. This is the man for whom I wrote the exam answer, “No, there should be no limits as to the size of a CEO’s golden parachute. A billion? 17 gajillion? It’s too much of a restraint on the market and leads to over-regulation.” and he gave me a good grade (of course, it was a bit more intellectual than that) because apparently it was the preferred answer. See, I hadn’t been in class the day we discussed golden parachutes and when the question was posed on my final I wrote in a joke answer because I thought I was failing the class, anyway. And it was the RIGHT ANSWER. The man doesn’t think much of any sort of regulation whatsoever. He would probably be against regulations ensuring flame-retardant clothing for infants.
Really nice guy, however, and very very intelligent.
It’s not:
Lawyer = Bar exam
Accountant = CPA
Financial advisor = CFA, Series 7, etc
is there a shortage of lawyers or something?
I’m not a big fan of either the standard law school curriculum, bar exam hazing ritual or the “self-regulated” nature of the legal fraternity - uh - profession.
I think successful completion of a course of study at an accredited law school should be adequate for entry into the field.
I don’t think there should be a legal bar against representing other people as an attorney at law either in business or in court. However, the accredidation process should be kept in place with the same or even greater transparency so that people can decide for themselves the cost and experience of the law-talkin-guy they wish to hire.
I’ve been in the US three times. Always for work.
The first time it was a temp thing, a summer job with an agency that brought people from all over the world. No hitches. This was when you still went to the embassy or consulate in person; they knew the name of the organization, it took about half an hour to get the Visa, no problems in or out of the country. New Hampshire is nice in the summer, a bit heavy on the mosquito side but I think the only place you can get rid of those is the South Pole.
The next time I went to graduate school; got the Visa myself, then transformed the Visa into a 1-yr work permit myself. Then I hired a lawyer, thinking that since I’d be busy working I’d rather have someone else to handle my paperwork. I left the US after said immigration lawyer and the lawyers of the company I worked for decided that it was “best for all parts involved” if I moved from being in the country and working legally to working ilegally. This part didn’t agree with the assessment, but hey, maybe I’m dumb 
(of course, she’s still waiting for the payment: “work not done equals payment in the mail via andromeda”)
The third time I went, it was as a transfer. I had worked for a company in Spain for 3 years, they were bringing me to the USA for a bit over a year. Love the webpage of the Department of State, by the way. Social Security’s is good too 
Some lawyer got overpaid for printing out said webpage (which I had already located myself, thank you much); she printed it wrong (good thing I had located it); sent me the canadian version, with things like the fees in canadian dollars instead of euros and saying I had to send my paperwork to the embassy in canada, yeah sure dearie.
There were other incidents, like that lawyer who insisted that I needed a Visa for Argentina even though I had an email from the Argentinian Embassy in DC stating that I did not (he wanted to charge $250 to get the Visa; the actual fee is $50). It was kind of funny, calling “my contact at the Embassy” (God that sounds so POSH!) and getting the paperwork done through her in 18 hours, instead of through him in 5 days (which would have delayed my trip and made me miss half the meeting I had to attend).
I shudder to think what would things be like if those people hadn’t HAD to go through law school and pass the bar!
And I really, really wish I had the slightest idea where to file complaints against them. In Spain it would be the college of lawyers, but in the US no idea. My bosses were terrified of the lawyers, as if they’d come down from Mount Sinai with Moses or something; when I mentioned things like that the second Visas guy was an outright liar they pretty much shat their pants.
I do not believe you need any of those things to be an acountant or a lawyer.
sorry, not lawyer, financial advisor
There are some circumstance when regulation of a profession is justified. For example, when the marketplace is imprefect and competetion does not function due to a lack of cometitors, then regulation is typically justified.
Another time regulation is justified is when there is a risk of premanent harm to consumers. I would say attorneys are in a position to do permanent harm to people if they malpractice or swindle their clients. Attorney malpractice means that, thanks to the attorney breaching a duty to the client, the client can lose when the client should have won. When that happens, the client could end up in jail, lose their livlihood, lose their assets, fail to recover substantial amounts from a liable party for a wrong committed, etc.: permanent harm.
This justifies regulation, but how much regulation? I think the Bar exam is justified in that it forces law school grads to take a comprehensive look at the education they just received in law school. In taking the Bar Exam, I studied many thing that I had forgotten from classes I had taken 3 years earlier and learned things in subjects I had not taken in law school, but were on the Bar Exam.
A different question is, how hard it should be to pass the Bar Exam? That’s where you get into marketplace politics. In California and New York, they have decided it should be very hard, so they increase the number of points you need to pass. In Utah or Wyoming … not so hard.
Is it harder to research the law, apply the facts of a case to the law, and present an argument in California than in Wyoming? No. I think California just raised the passing score again this year. The goal of tinkering with passing scores does seem to be to restrict entry into the field in the more populous and competitive states, but the courts have decided that does not rise to the level of anti-trust violation.
In the US, attorneys have to be admitted to the bar of a state to practice law in that state*. You would file a disciplinary comlpaint with the bar of the state(s) in which the attornmey was admitted to practice law.
*for a small, isolated matter, an attorney may be admitted pro hac vice to a state’s bar such that the attorney can handle that single matter. The method for pro hac vice admission varies form state to state.
In the link from the OP, many comments posted complain that the state Bar is ineffective or that attorneys are a self-regulated fraternity. However, that goes to the issue of HOW to best regulate lawyers, not WHETHER to regulate lawyers.
Also, I’m not so sure about applying an E-Bay type rating system for attorneys. People may lose a case because they have a bad case, but they may blame the attorney even though the attorney did the best possible job with the facts given.
Applying a rating system would discourage attorneys from taking risky or messy cases. The people who need attorneys the most are often those with risky or messy cases. Attorneys might then try to compensate for taking risky cases by increasing their fees relative to the increased risk of a negative rating.
I assume (and so far I’m right) that the only people who are going to respond to this thread are lawyers or folks disgruntled with the legal system. Neither of us are unbiased audiences. That said, I can’t imagine anyone being able to do even a half-assed job of lawyering without a lot of training; perhaps not exactly the training regimen that now prevails, but something, and a lot of it. One just has to look thru legal threads in GQ – the lawyers give good answers, and the non-lawyers, even those who have done a lot of research, mostly screw it up. (A few notable exceptions exist such as Otto and Polycarp, plus probably others I can’t recall off the top of my head.)
–Cliffy
Well, that’s a circular argument. The reason why lawyers do better than non-lawyers, even given the same resources and intelligence level, is because they are experienced in the practical applications of the law. This practical experience can’t really be measured by a test since a lot of it is too case-specific and relies on gut instinct.*
And the reason that lawyers have more practical experience is non-lawyers aren’t allowed to. Q.E.D.
Btw, I think I’m as close to an unbiased source as possible, since my life has been directly affected by precisely zero cases involving lawyers. The few that affected the lives of my close relatives weren’t uniformly competent, but some were more competant than their opponents, which is about all that counts when it comes to being inherently “biased” for or against lawyers.
- (Okay, I’m prepared to be corrected on this. But unless the bar exams are mainly “essay reading comprehension” questions rather than answers to short essay questions or straight-up multiple choices, I stand by my assessment.)
That’s exactly what they are, in most cases. Each state is different.
However, the Multistate Bar Examination(MBE) is multiple choice because it deals with common law thats pretty standard throughout the US. Everyone has to take that and then their individual state bar exam, which is essay based.
It isn’t just practical application - it’s a change in instinct that happens during the years of legal training.
Law is weird. One of the things I remember from the first part of my first year of law school is about one third to one half of the class saying “but…but… that’s not fair! it’s just not right” over and over again in one standard first year class and about one third to one half of the class saying “but that can’t be right! it’s not fair!” over and over again in a different standard first year class. (Those groups nearly never overlapped). Over that first year - your instincts moved from the way you feel the world and karma and life and the law should work to understanding the way that the law actually is because you are trained in the reasons why the law is the way it is and how to work through legal problems (including getting an understanding into what is and is not a legal problem) and those instincts are further refined in the following years of school while being . So, even in an area which I have little or even no practical experience, I can make a damned good guess because I have a feeling into “how law works” that I didn’t have before law school and I rarely see in people who haven’t gone through legal training.
Bar exams are state administered and run and therefore vary from state to state.
Whether that was an appropriate venue for their disagreements is arguable, but I fail to see how current practise and deontic optimalization are necessarily linked.
I wouldn’t call Bar Exam questions “reading comprehension” questions.
In college, a student is often required to read material and regurgitate the material on an exam to prove the student read and understood it, without actually applying the knowledge to solve a problem. This is what I consider “reading comprehension.”
In law school and on the Bar Exam, the student is asked to memorize the law. Instead of reguritating the law back on an exam, the student is typiaclly given a set of facts, then asked to apply the facts to the law and provide legal conclusions regarding the rights and duties of the parties. You won’t see a question on the Bar Exam like, “Compare and contrast theories of tort and contract remedies” or “Explain the rule against perpetuities.”
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That’s actually inaccurate. Federal attorneys need only be barred in a state, not necessarily the one in which they practice. I am barred in another state but practice in California.