Why would it necessarily lead to more fraud? Do you think lawyers are more ethical than the average person? Even if they are, fraud (the non-legal definition) is relatively subjective. People think they are defrauded all the time (even when they aren’t), and much of the time, it’s due to them feeling they didn’t get their money’s worth. Licensing increases the cost of all lawyering at the expense of increased proficiency, but the public perception is that it’s not worth it. Lower costs alone will decrease the perception of fraud.
Well, it’s possible to do so. Admittedly, you get a lot of crappy lawyers that way, but you also get John Marshall and Abraham Lincoln. Not that I think licensing is bad…it’s certainly not, and it’s probably better attorneys are licensed…it helps to guarantee a minimum standard of quality and deters fraud.
Lawyers are more ethical than the average person, because they have more incentive to. If a lawyer violates ethical rules, he can be disciplined by the bar or even lose his license to practice law. So that helps to discourage bad action.
The average lawyer may be more ethical than your average felon (maybe), and they certainly stand more to lose by fraudulent behavior. They have student loans they need to repay. Seriously, most disbarrments and suspensions of lawyers in the bar journal are for malpractice or serious but technical, non-fraudulent violations of ethics. For the real outright fraud, look to the guys being written up by the Unauthorized Practice of Law Committee.
An increase of fly-by-night practitioners of law could certainly lead to more fraud, yes. Here in Texas we have a huge problem with notaries public imitating lawyers and offering to represent immigrants; in Mexico “Notario” refers to a person who is not just a licensed attorney but who has achieved a very high level of legal competence in a certain field. Many poor people have been completely fleeced by notaries impersonating lawyers. Doing away with a licensing requirement would mean giving these people a license. A license to steal.
Apart from outright fraud, although a legal education and examination aren’t foolproof as far as preventing legal malpractice, but they’re better than just letting anybody have a go. When I first went to law school I started noticing a certain group of people, the Guys Who Think They Know More About Law Than They Actually Do. I used to be one of those guys, until I got my ass handed to me by a law professor a few times, saw how hard this shit actually is, and learned part of being a lawyer is knowing your limitations and what you’re not qualified to do. You see them here in GD and GQ, you see them in law school, you see them in jails and prisons, and the last place you want to see them is in a courthouse representing someone else. There was a horror story here a while back about a guy impresonating a lawyer who represented several people and took a great deal of money from them, including a guy who was being questioned regarding a murder case. Since he was just driving the getaway car, the “lawyer” recommended that he make a statement, and even accompanied him to the police station. The kid made a statement that he was the driver of a car in a robbery/ murder and ended up implicating himself in a capital murder case, confession and everything. Is that fiasco the standard of legal representation we want to establish?
I seriously doubt lawyers are more ethical than your average person. I know it’s not something that’s quantifiable, but I think the public perception of lawyers (and politicians, since many are lawyers) is well earned. Like lawyers, most professionals have an incentive to act ethically and honestly. Also, most have little to gain from acting unethically.
I agree, most lawyers are honest people, but so are most in the general public.
It could, but why would it? There are plenty of easier ways to defraud people. especially since a deregulated industry would lower prices and provide less incentive for charlatans to reek havoc.
Thieves are thieves. They are apparently, already stealing. Bar licensing has no affect on them.
But can’t someone educate themselves just as well? Why must one spend 100K+ to prove they are knowledgeable and competent to do legal work.
We can go story for story. There are plenty of shitty lawyers who have given terrible advice despite having a certified “legal education”. I think we’re overestimating the ways in which law school changes a person. I don’t think it will make you a more honest, ethical, or better person. Just look at the Fred Phelps’ and Star Jones’ of the world to know a legal education doesn’t mean you have a superior mind, or that you can think critically.
To elaborate a bit, I started this thread after reading an ABA Journal article about this topic. The article began by mentioning that several states allow students to skip law school in favor of some form of apprenticeship. There doesn’t appear to be a problem in states that allow this. Gary Blasi, a professor at UCLA law stated the following:
What we have now is arguable, a failing system. Competent lawyers are too expensive for the people who really need them. Poor people can’t afford lawyers, and they can’t afford to go to law school. Clearly, there is a problem.
Under the current system, half of our future lawyers are not not even going to class during their second and third years because they don’t learn anything. It’s hard to argue that law school is so important if people paying $40,000 can’t be bothered to attend class. Why couldn’t a person just buy the books and study themselves?
More reason to fix this broken system. If law students aren’t going to class, and the test isn’t preparing them to be good lawyers, then the system is failing. I’m not saying that all of these people become incompetent lawyers, just that their expertise has little to do with the systems that are in place.
In many countries, law is an undergraduate degree. Places where the legal system is as complex as ours can educate lawyers in half the time.
I don’t think you can overstate the last point Shepard made. Competent advice from a lawyer would not cost $60/hour (even though it’s usually much much more around my way) in a free market. The costs of such a system outweigh the benefits.
I don’t think eliminating everything we use to develop competent lawyers is a good idea, just that there’s an overemphasis on the complexity of legal work. The Bar doesn’t protect consumers in ways that a free market wouldn’t, and the market provides more benefits for average people.
Quite correct. Look north!
and on the rhyming issue 
Quite frankly, this isn’t the case. There are many competent lawyers who make their bread and butter providing services to the lower and middle classes, I know several. They might not have had the financial success that others have, but they keep a roof over their heads and food on the table. I wouldn’t make referrals to these folks if I thought they weren’t competent to handle them. The problem, as much as there is one, is that these lawyers are awash in a sea of utterly incompetent scumbag bottomfeeders that are churned out by the thousands annually.
More access to law schools, or the doing away with any substantive requirement to enter the practice of law, would worsen this problem exponentially.
Poor(er) people can afford decent and even good lawyers. Instead, what usually happens is that they end up calling the office of some dude whose face they saw on a crappy advertisement at the effing bus stop who they thought was gonna score for them, bigtime. Or they walked out of the office of a new kid who was sharp as a tack but fresh-faced, figuring he didn’t know anything, and traded him for a 'grizzled veteran" whose primary income was derived from retainers he never did anything to earn.
Bottomfeeders prey upon the weak. Neutralize the places that breed them, and ban the advertising that allows them to function, and the ‘problem’ will diminish.
Can truly poor people afford to hire competent counsel? Probably not. But there’s alot of things they can’t afford, and that’s a result of being poor, not because there’s no one to hire for a reasonable rate. That’s why the go to Legal Aid.
I see the Bar doing two things. First, anyone who can successfully pass the Bar Exam has at least a working knowledge of the law. Second, anyone licensed by the Bar has an incentive to treat clients ethically, lest they get disbarred.
Now, you can argue that the current state of the Bar fails to accomplish this, but I’m not buying the idea that the free market will do this better than a centralized association.
We require licensing for a wide range of services, such as Real Estate and Barbering. Lawyering is way down on my list of services that could safely do without it.
For the criminal lawyers in this thread - and, of course, anyone else that wants to comment:
Do you believe the Strickland process for determining ineffective assistance of counsel works in practice as it should? If not, how would you determine, on appeal, whether a criminal defendant received assistance of counsel within the meaning of the Sixth Amendment?
And does the Anti-Terrorism and Effective Death Penalty Act unfairly limit collateral attacks on convictions when the issue is ineffective assistance of counsel?
As long as a guy can *lose * an appeal of his conviction in a capital case on the basis that his counsel *slept * through much of the trial, you can’t completely say it works as it should, now can you?
It is the case, and I tend to believe the poor people who complain about this rather than people with means. Even many good lawyers won’t really go all out for a pro bono client like they would one who was paying them a lot of money. Court appointed attorneys aren’t necessarily bad, they are just overworked, and don’t have anything invested in poor people who aren’t paying them.
Why is this the case if the Bar, et al, are working properly? You seem to be painting this as a meaningful statistical aberration as opposed to a few bad apples.
Why does that naturally follow?
Again, another failure of the current system.
The general public may be mostly honest, but I’ll bet you still have locks on the doors of your house. Bar associations exist in large part to establish basic standards of professional ethics and competence, and to provide oversight and consequences when those standards are violated. Take away bar associations and licensing and you take away that oversight and consequences.
That’s like saying that we shouldn’t bother prosecuting theft because people just steal anyway. Take away bar associations and your legal recourse is going to be the local police force when someone bilks you out of your money. Try calling the cops and telling them “my lawyer took $5000 to handle my divorce, but didn’t send out discovery or cross examine my wife and she got the house which was actually my separate property.” They don’t understand, and don’t care. The bar grievance committee and unlicensed practice committee would have, but we’ve done away with them. Should I petition the “free market?”
There’s an argument that self-teaching is rarely comparable to training, but even assuming it can be arguendo, how do you know when you’ve reached a basic level of competency? How do the courts know? Who polices you to determine if you perform below that level of competency?
Of course some lawyers commit malpractice - they have a near monopoly on legal malpractice at present. The question is how to best limit that malpractice and prevent it from reoccuring when it does. Is it by requiring training and oversight, or is it by allowing anyone with a suit to practice? Under your system, there’s no way of even preventing the guy in my example from doing the same to someone else.
This one’s not only not true, as a criminal defense attorney it’s frankly insulting, because it calls my integrity into question. If you’re a “good lawyer,” you go to the mat for a court appointment or pro bono case the same as you would for a guy who pays you cash up front. Period. I hope that the self-taught unlicensed lawyers of the future also teach themselves this very basic rule of professional ethics.
Pro bono? Who said anything about working for free? I think you’re confusing free market with working for free; and they really aren’t the same. My post said “poor and middle classes,” with a blurb at the end in re: the destitute. Because that was the language used in the article you linked; an article that doesn’t even contain the phrase “pro bono.”
There is a peculiar (and fortunately rare) idea in our society that lawyers, unlike just about everyone else, should be thrilled to work for free. A concept which, in addition to being ludicrous, is completely at odds with the free market approach you are advocating elsewhere in this thread. My point in the foregoing post, in case it was missed, is that discriminating consumers can obtain good service from the legal field for a reasonable price. If they aren’t willing to be discriminating, or aren’t willing to pay a reasonable price, then they get what they pay for. What is it you want to see? Lawyers forced to try extra hard for indigent, non-paying clients? How is that free market? In the absence of economic exchange, there is no market.
Oh, I don’t know, why is unhealthy food for sale if the FDA is doing its job? The Bar tries to protect the public from fraudulent or patently unethical behavior. It isn’t equipped or capable of eliminating crappy service, vaguely shady practitioners or lackluster lawyering, primarily because we do live in the free market society you’re proposing. You can eat McDonalds all you want, federal nutritionists be damned. Should you? Of course not, a person shows restraint or faces the consequences resulting from lack thereof. Again, a function of the free market.
Disingenuity is contrary to genuine discourse. And it’s boring. Gee Rocky, do you think we’ll get more cockroaches in the house if we open all the windows and take the screens out? Why would that naturally follow?
Whatever, dude. Waste someone else’s time.
No, it’s an unsurprising illustration of how people who are ill-equipped for the advancement of their financial condition are similarly bad at making any other business-related decisions, such as whether or not to hire a particular attorney. Common sense informs me as to the inadvisability of hiring a lawyer who advertises late at night next to the sex phone commercials, but clearly someone is hiring them. Welcome to the free market…the current system.
The practice of law today is a free market with certain controls. Eliminating those few controls under the auspices of helping the poor and uneducated is patently absurd, and your argument for it is untenable without resorting to fantasyland where the magic invisible giant ultra-libertarian-Braveheart-freeeeedom fist of economic anarcho-liberty descends unto the world and makes everything into utopia. Just saying, you know, in case you were thinking of going there for my benefit, not that you were.
Cloaking an uber-capitalist argument in some sort of socialist nanny state “what about the poor?!?” outfit isn’t working. Maybe you should find an easier victim.
Spare me the indignant routine. It has little to do with professional ethics and more to do with practicality.
No I’m not confusing anything. You are conflating two different arguments I’ve made.
Obviously, they can’t discern good lawyers from bad ones. Few people intentionally pick crappy lawyers. The product all lawyers provide has an artificially inflated cost. A free market mitigate that.
You are the one being disingenuous. Please tell me why you think a free market always leads to more corruption? It’s just not the case. Lawyering exist long before the bar, and could exist if it were eliminated. Do you have any evidence there was more corruption back then? Were consumers worse off back then?
Are you normally this condescending? These “controls” are causing problems that have to be weighed against the benefits. I feel the negatives outweigh the positives. Don’t pretend like recognizing a faulty system requires one to subscribe to a fringe ideology.
My indignation is about the same as yours would be if I came to where you work and accused you of stealing. Since it’s a fundamental rule of professional responsibility, it has everything to do with professional ethics. Let’s say a lawyer represents a client poorly and gets turned into the grievance committee. He justifies his performance by saying “well, yeah, but the guy didn’t pay me. I can’t be expected to devote as much attention to a case when it’s a guy who didn’t pay me, right? That’s only practical.” That attorney has just displayed a fundamental lack of understanding of his professional obligation of zealous representation of his client. He has also just gotten himself disbarred for unethical conduct.
Your obligation to zealously represent a client to the best of your ability isn’t a sliding scale relative to how much he’s paid you. That’s why lawyers and prostitutes have to get paid up front: because once you send over that rep letter, you’re on the case. Not half on, on, whether you get paid or not. Practicality is making sure you’re going to get paid when you sign on, or being okay with the idea of working for free.
That’s indicative of the problem with your idea: guys who mistakenly think they understand the rules of professional responsibility when they actually don’t, and have no bar association committee to point out the error of their ways. Is that your only comment on my posts, by the way? I’d love to hear your thoughts on the one right before that.
Which means what? The effects of having some locks on my door are not punitive. Just as I wouldn’t go without locks, I also wouldn’t put 10 of them on there so that it restricts egress. Allowing a free market doesn’t necessarily mean there is no security net.
But the Bar is failing, and is causing more problems than they solve. Why does an association that almost universally mandates law school education put up with a 50% class attendance rate for 2 and 3L’s? Why do they allow vast swaths of poor people to receive sub-standard representation? The Bar is not doing it’s job because this basic level of competence you speak of is not there. What the bar does do is create higher prices, and mandate that a person spend 3 years and tens of thousands of dollars to practice something that can be learned in many ways.
Please stop this act. You can’t be that naive to think the poor and indigent receive equal treatment under the law or similar results in similar circumstances. You can say what you want about professional ethics, I’d rather believe my lying eyes.
In theory what you say may be true, but in practice, it is not. People expect to be paid what they feel they are worth. It is natural to not be at your best, intentionally or otherwise, when you feel you are being taken advantage of. I don’t blame lawyers for this necessarily.
The problem with your idea is that you apparently live in Candyland on Gumdrop lane, where all lawyers are the most ethical egalitarian people who only care about justice and the rule of law. In the real world, places like Massachusetts, lawyers won’t represent indigent clients because the state pays too little.
What a perfectly ethical situation we have here. Thank God the Bar association is looking out for this sort of thing. My favorite part was how these particular lawyers stopped accepting court appointed cases.
Plenty of smart, competent people would love to make that much money if they didn’t have to put out 100k for a certified legal education.
Here’s another interesting case. I think you should face the fact that the Bar, like most organization of it’s ilk, protects it’s own above all. It’s superficially about establishing competence… but it’s really just a way to look out for their own and maintain a monopoly. probably no better or worse than many other organization, but not the bastion of honor and integrity you believe it is.
You need more, how about this (there is some good stuff in there if you want to quote it).
Please stop trying to paint the Bar as some magic organization that does a good job of protecting consumers. I’m not saying it’s useless, but it broken and should be replaced by a better system that is better for the public.
Well, what’s the security net, then? How do people like the guy in my example get stopped? How do market forces stop him? Word of mouth, or what? Lawyers have people’s lives in their hands, and guys like that can do a lot of damage before they’re stopped.
There’s an old joke about an algebra teacher teaching a class when a student interrupts by asking him “what’s the point of algebra? Why are we learning this?” The teacher responds “algebra saves lives,” and goes back to teaching. The students chew on this and eventually someone asks “how does algebra save lives?” The teacher responds “it keeps stupid people out of medical school.”
I’m being facetious with that, but my point is that higher education isn’t the same as trade school. The goal is to become an educated person, in all aspects of your field. You don’t go to law school to learn the law and come out knowing everything you need, you go to learn to think like a lawyer and come out knowing how to find out anything you need to find out. If the complaint is that law school isn’t practical enough, fine, take steps to make it more practical. Some schools do this; Baylor law school in Texas, for example, is well known for having a program that turns you out on the street ready to practice law as soon as you graduate. Law school can do a lot of good. Doing away with law school altogether would be throwing out the baby with the bathwater.
I’ll admit the system favors the rich. If you don’t mind, I’ll repost this from the last thread we had on the subject because I type slow and have a headache (and please forgive the tone, the person I’m responding to was notoriously aggravating):
“That’s no ideal to me; That’s a living, working reality.” I’m telling you point blank I go to the mat for everyone who walks into my office, regardless of who is paying or not paying the bills. Let me give an example:
I recently completed an appeal I was court appointed on for a guy who was, for lack of a better term, a complete fucking dick. He did nothing but talk shit about me in the county jail to anyone who would listen and wrote angry and incomprehensible letters about me (and my dad, strangely, who wasn’t even on his case) to the judge, state bar grievance committee, Governor of Texas, Inncocence Project, Department of Justice, President of the United States, and on and on. He was a “writ writer” who knew as much about law as he did about brain surgery. God, he was a jerk. Everybody in the courthouse knew who he was and graoned everytime his name came up. I could go on for days about his various stunts.
The thing was, though, he actually did get the shaft in the trail court. The prosecutor impeached him improperly with a felony that was inadmissable, the judge allowed it, and the prosecutor hammered on it repeatedly in closing as proof of what a liar he was. It really was a bum deal. I spent many hours researching case law and writing, in all modesty, a stellar brief on what a bum deal he got, and drove three counties away to argue it to the court of appeals for the region. The court agreed with my position and reversed the judgment. I’m still waiting for my thank you.
This was all done for county money for a guy I pretty much despise, but I did it gladly and I’m proud of it. It’s my job to try to make sure that the law applies equally to everybody and that they get a fair shake, regardless of how much money they have or how much of a dickhead they are to me. So yeah, it’s a little bit of a sore point when somebody tells me I’m not doing my job or that I’m only paying lip service to my ethical responsibility, and I apologize if I’m testy about it, but it’s very much a point of honor.
No need to be insulting, dude. As stated, I get enough abuse from my clients.
I’m plenty collegiate withe the judge in the above case, but even though he signed my checks I proved him wrong and got him reversed, which judges hate.
The author is making the mistake of assuming you can bill every hour you’re at work. It doesn’t work that way. If someone’s working forty hours a week and billing the county for forty hours a week, he’s committing fraud.
It’s not a bastion of honor and integrity, it’s a professional organization doing a necessary job. Sometimes it does it poorly, but that doesn’t mean the job wasn’t neccessary in the first place.
What the heck is the better system? How exactly is a free market going to regulate malpractice and ethical breaches?
I forget the details and I’m too lazy to ask the CPAs here, but there are certain things you can’t do unless you have a CPA. I believe signing off on an audit is one of them. Financial advisors (AKA stockbrokers sometimes) need the Series 7 in order to buy or sell securities. Engineers need a PE license to aprove a building plan. The point is other industries have special certifications that are requirements to perform certain aspects of their job.