Throw the bar open: a proposition (for milum)

In an attempt to allow milum and any who care to debate with said individual a forum for the issues dragged into the thread about legal advertising, here is a debate:

As I understand milum’s theory, lawyers are greedy people who perpetuate a system of limited availability of specialized services to increase the value of such services, services only provided by lawyers. They do this by requiring the passage of an exam which doesn’t truly weed out incompetent or unqualified people, but simply forces people who wish to attempt legal representation to do so by spending three or four years in expensive education before being allowed to attempt passage of the exam. The results are manipulated to limit the number of attorneys at any given time. The result is an artificially inflated cost for legal representation, a cost which the poor in our society cannot meet, leaving them at the mercy of others who are able to pay it.

milum proposes a solution: throw the ability to represent people in court open to all who wish to attempt the profession.

In light of the fact this is milum’s proposition, I suggest letting milum have the first affirmative to correct anything I’ve said, and to explain exactly how this proposition will result in a more equitable and efficient distribution of needed legal services. Then the rest can pile on.

Enjoy. :slight_smile:

Does milum advocate elimination of the bar exam, or just that it can be taken by anyone, even those who have never gone to law school?

Good luck getting milum to engage you in debate.

Well, since one has the right to represent oneself in court, you could say that anyone could “attempt” to be a lawyer already, provided one has committed a crime first.

(I will refrain from making any “crooks and lawyers” jokes here, thankyouverymuch. :stuck_out_tongue: )

Being a lawyer are a perfectly understandable occupation, and the existence of the profession is, if nothing else, a result of achieving efficiency through specialization. I do not have the time, or money, to pursue our nation’s laws for my own benefit in a manner that would qualitatively compare to those who dedicate their working hours to the task.

Anyone can fix their own sink, but most people have better things to do than learn plumbing. Hire a plumber.

I have to agree with Duke. If one can represent oneself without being a lawyer, why not let a person choose someone else, not a bar-certified lawyer, to represent onesself?

IANAL, but my brother is. He’s a Harvard grad, who practices in DC - Lawyer Central.

From what I understand, one does not have to go to law school in order to take the bar exam. Law school is nothing more than three years of preparation for a test. One could take the bar exam without going to law school first. If they passed, they would be a lawyer within the state that they took the bar exam for, and fully licensed to practice law. But the odds are nil, if it has ever happened at all.

Chicago Faucet, while true in some states, it is much more complicated than you make it out to be.

The practice is called “reading” for the exam. In California, pursuant to Rule VII of the RULES REGULATING ADMISSION TO PRACTICE LAW IN CALIFORNIA, one is required to spend almost 3500 hours over the course of four or more years studying law under the supervision of a member of the bar, or of a judge. In addition, such “students” of the law must take the “First Year Law Students’ Examination”, what we call the “Baby Bar.” Students at ABA accredited schools, and at California Bar Association accredited schools are exempt from that exam.

Ohio, as far as I can tell, doesn’t let you read for the exam; you have to go to an accredited school. See RULE I. ADMISSION TO THE PRACTICE OF LAW of the “Ohio Rules of Court - Rules for the Government of the Bar of Ohio”.

Both Ohio and California require that you have a Bachelors degree before you can become an admitted attorney.
For those not aware of what an attorney goes through, basically the thread is this: having graduated with a Bachelor’s degree, your whole goal becomes passage of the bar exam in the state in which you wish to practice. While all law schools will assert that their main goal is to train you to know the law and “think like a lawyer,” they are more concerned with their bar passage statistics than with any other single aspect measuring their effectiveness. This is for the simple reason that prospective attorneys are more likely to choose a school with a demonstrably higher passage rate, since failing the bar precludes acting as an attorney.

This gets circular, of course. At one point, Boalt Hall at University of California (Berkeley) undoubtedly had top-flight professors producing better trained students. However, once it becomes clear that Boalt graduates are doing better at passing the bar, then more prospective attorneys apply to Boalt. Boalt can choose the best candidates for eventual bar passage, ensuring that the statistic remains high. Students who have not done as well in college demonstrating their “worthiness” at eventual bar passage are forced to accept admission at schools with smaller passage rates (e.g. Hastings College of Law, University of California, San Francisco, a perfectly good school, and one for which it would be really hard to argue an inferiority to Boalt in the ability to properly train lawyers to be good lawyers). Assuming that the schools can adequately predict probably success in bar passage from such indicators as score on the LSAT, grade point average in college, etc., the stratification continues ad infinitum.

IF one assumes that the bar exam of a given state does an adequate job of seperating out people who will be poor attorneys from those who will be good attorneys, this is all well and good. milum is not the only person to hold the viewpoint that the bar exam (which usually lacks any true test of proficiency at the practice of law, i.e. the mechanics of the law) fails in this effort. Thus, the conclusion that the bar exam has some other purpose; in the opinion of many, the exclusion of people who want to be attorneys.

Thank you** DSYoungEsq**, for your tight phrasing of my rambling comments about greed and lawyers. In an attempt to emulate your succinct style I will simply list five associated truisms that support my belief that all men should be allowed to be lawyers…

(1) Laws are evolutionary devices of natural selection, as are all social structures of animals and man.

(2) There are no concepts that can be conceived by any one man that can’t be understood by most men.

(3) All groupings of men when separated from the larger group of men by vocations that lead to wealth and power, develope mutual protective mechanisms that further self-aggrandizement.

(4) The people of the United States through the equal -justice motif that is found throughout of the Constitution are protected from a justice system that has as a central focus a self- protective and self enhancing elite group of citizens who alone can represent the rest of the citizenry before the courts.

(5) Many lawyers are sleazy.

there are few concepts that can be conceived by any one man that can’t be misunderstood by most men.

While law schools keep an eye on their bar passage rates, their most important measure is less tangible – the prestige their degree confers. Thus, most law schools focus more on faculty accredation and publication, their own physical facilities (big law library, etc) and ways to attract better-qualified students. Indeed, if law schools are focused on anything at all, it is their rankings in grad school surveys such as those put out by US News & World Reports.

The reason, of course, is money: more prestige means more grads working for large law firms, making more money, and thus making more and larger alumni donations.

Case in point: Texas. In bar passage rates, Baylor ranks #1 and Texas (my law school alma mater) ranks #2. But by US News’ lights, Baylor is a second-tier school, while Texas consistently ranks in the top 15 or so law schools in the country (and even then, Texas bitches that it should be higher and that US News uses flawed methodology). Somehow I doubt Texas is looking to trade places with Baylor.

Milum, I think it really boils down to one thing:

(1) Laws are not written for the masses to understand

Whether it is the natural progression for law to become complex, or the machinations of lawyer-lawmakers, the law as it stands is far too arcane for the average Joe to deal with on his own. The bar is only to separate those who know the law from those who don’t.

Similarly, cars are becoming so complex that the home mechanic can’t deal with them easily anymore, where he could have done a great deal 40 years ago. People now always have to go to professional mechanics, who have their own greed and sleaze issues.

Milum, you have some good points there. But I think 'snax is right: the law is intricate enough that most folks would like to have someone else deal with it.

Still, it does seem unfair that people have no choice but to hire a lawyer in many situations. I think it is one of our inalienable rights as Americans to screw things up if we so please. :slight_smile:

John Q. Citizen can choose to not have a car. He can choose not to ever visit a doctor. He can choose to never use the services of any number of ‘complicated’ professions, but the state can compel him to particapte in the legal system. Sure, he can opt to not have his own lawyer, but he will be going up against other lawyers and judges. No way out of that. You must participate in the legal system.

Brutus, I think your doctor example is flawed – choosing to not ever visit a doctor is the medical equivelant of going pro se in court. Illness compels participation in the medical system.

Indeed, one is more likely to need a doctor in one’s lifetime than a lawyer. My father has never needed a lawyer’s services in his personal life (I do bug him about seeing a trusts and estates lawyer to get a proper will drafted), and his dealings with them in the course of his business are wholly voluntary. But he sees doctors for various maladies on a regular basis.

But more to the point: proponents of the “lawyer conspiracy” never bother to give us an example of a complication deliberately introduced by lawyers for the sole purpose of making the law more complicated (and thus lucrative to them).* They just see the complicated nature of the law and assume it must be the fault of the damned lawyers. The notion that complications arise in the law because life itself is frequently complicated, thus necessitating nuance, never seems to occur to them.

  • N.B.: I realize lawyers lobby for laws that benefit them, like trial lawyers opposing tort reform. But these aren’t complications introduced to boost lawyering fees – they are substantive policy choices that happen to benefit lawyers. Heck, if anything, the “loser pays” system that trial lawyers oppose actually introduces another layer of complexity into tort cases, so in that instance the trial lawyer’s lobby is actually opposing additional complexity.

DCU: My position on the OP is really one of personal freedom. This is another area where the gov’t appears to protecting us against ourselves. No thanks. I’d prefer to have the choice of using a certified lawyer or a noncertified one. I would assume that the latter would, as a rule, be cheaper.

As to whether lawyers make laws complicated in order to ensure employment security, I have no idea if this is true or not. But from my perspective it has nothing to do with the question the OP is asking in this thread.

Ideally, during the learning phase, justice would be conducted in Ground Hog Day environment - that is, you’d be allowed to prosecute, or defen, the same case, time and time again until you got it right - thereby accumulating knowledge along the way.

It’s obviously a fantasy suggestion - and therein lies the rub. If somebody is going to be your advocate in a legal setting - especially if they’re acting as your defense, well they can’t fuck up can they? But how can they make sure they’re not gonna fuck up if they haven’t had experience?

Are there ANY professions that require mandatory licensing, milum?

There are, however, other considerations, particularly for litigators. Court dockets are notoriously overcrowded. Having participants who don’t have a grasp of procedural matters slows down the pace of a trial. That means less court time for other litigants, which impairs access to the courts. Judicial resources are finite and shouldn’t be wasted. It makes sense to ensure that a party’s representative knows the ins and outs before a trial begins.

As for non-litigators, it is true that the licensing requirement is an example of governmental paternalism. But it is a warranted one. It’s really no different than the licensing of doctors: legal work can have serious, lifelong consequences that in many cases cannot be undone. The general public simply doesn’t have enough information to make an informed choice on this issue: precisely because they are not lawyers, they do not fully appreciate the potential consequences of hiring an incompetent lawyer (just as the general public does not have the requisite education to appreciate the potential consquences of going to an unlicensed physician). Licensing is therefore warranted.

I actually don’t have a problem with getting rid of licensing for what I do – corporate legal work in a mergers & acquisitions context, with a bit of securities work as well. That’s because my clients are sophisticated and usually have their own in-house lawyers advising them. They are well-informed enough to make a decision. I’m more skittish about getting rid of licensing for things like wills, which simply cannot be undone if it turns out there’s a mistake because the testator is dead.**

So what? I was responding to Brutus, not the OP.

For what it’s worth, I asked milum about this in another thread in the context of electricians. As I recall, he favored eliminating education and licensing requirements for electricians.

I’m not sure how he would view education and licensing requirements for doctors.


As far as the OP goes, I actually have personal knowledge to share. See, one of my main areas of practice – administrative law – allows non-attorney representatives. It’s a niche practice area, and frankly, in this narrow field, you’re probably better off with an experienced non-attorney representative than an inexperienced attorney.

Still, the thought of opening the practice of law wide open troubles me. For one thing, attorneys are in a unique position to take advantage of their clients or otherwise lie and cheat. For example, an attorney could easily lie to his or her client about the amount of money a case settled for and pocket the difference. One big disincentive to an attorney doing this is that if he or she got caught, he would lose his or her license to practice law, which license represents a large investment of time and effort.

If you opened up the practice of law, you’d get a heavy stream of shysters flagrantly violating the rules; stealing from their clients; etc.