By the way, I’m not saying that no lawyers lie, steal, or cheat their clients. My point is that if you opened up the bar, these problems would get a lot worse.
Here’s a novel idea (at least to me) – why not make all attorney’s court appointed? Lawyers would still specialize – e.g. criminal, corporate, etc. and the clients with that particular problem or set of problems would be assigned a lawyer, by the court, from the pool of lawyers with that expertise. This would remove the complaint that greed is the prime motivator of some lawyers since the lawyer doesn’t pick the case (i.e. deep pockets) or the client (i.e. the rich and powerful only) and would prevent wealthy clients from buying better “justice” than the rest of us. It would also ensure not only representation – but a fair / even chance at good / bad representation for all clients – both the ExxonMobils and the Tigers2B1s of the world –
I’d be surprised if Milum liked that idea. Based on his earlier posts in the other thread, I’d think he’d claim that would just promote collusion between lawyers and judges.
Tigers2B1: Bad idea. You’re basically telling people to gamble with their futures. I shouldn’t get stuck with Lionel Hutz when I’m trying to recover my life savings from some swindler just because that’s where the lawyer roulette wheel fell. You’re also ensuring that bad lawyers stay in the profession by guaranteeing they have a steady stream of clients.
It also doesn’t say a thing about lawyers like me who do not litigate. I haven’t seen the inside of a courtroom since the day I was sworn in to the New York bar. I negotiate and draft contracts for a living. Are you seriously suggesting that every time a company wishes to pursue an acquisition, it will need to go to court to have their attorney appointed? What if the negotations need to be confidential – your scheme would destroy that.
New lawyer here. I will say that, in some respects, I don’t feel any different from when I did three years ago, when I knew virtually zip about the law. Law school has taught me primarily one thing: how to research, and more importantly, read cases and statutes. As a previous poster pointed out, the law is rather incomprehensible, or at least seems that way. I remember all through first year of school, I tended to have a perpetual headache as I tried to wade through the materials without consulting a dictionary. I don’t have that problem now: at this point, I can easily read through a stack of cases, tell you their main points, and synthesize them in relation to a legal problem. This is, unfortunately, something I feel the average joe cannot do without a professional legal education.
On the other hand, coming out of law school, I still know virtually squat about the practice of law. Law school and the bar don’t teach you “the law”: they teach you concepts and terminology and how they interact with each other. That still doesn’t help you outside of a specific situation, unless it’s a federal matter you happen to remember from your Con Law class. I.e., if somebody gets into a car accident in Pennsylvania and asks me what his rights are, I’d honestly have to answer that I didn’t know. Pennsylvania’s legal standard for, say, battery or conversion are probably not any different from what I learned in my first year torts class, but at that moment, I technically don’t know any better than the guy asking me the question.
So, after 3 years and $60,000 spent on a J.D., am I any better than an unlicensed individual? 
Quick question: It was my intent to sneak into the Virginia bar exam through its archaic apprentice program, but now I find the following:
Well, sheeit. When did this happen, and can I get an exception if I already started my studies?
(In answer to the question, “why would someone want to do such a thing, since nobody will hire you with such punk credentials?” the answer is, “to get my effing parents, who still want me to be a doctor and a lawyer, off my damned back.”)
I think licensing lawyers gives clients some degree of accountability. There’s always malpractice and/or ineffectual assitance of counsel (or whatever that is in criminal cases). How on earth could you sue a non-licensed lawyer…you knew what you were getting when you hired him or her.
FWIW, I get to try cases against pro se folks all the time. I’ve never lost a case to a pro se Plaintiff, even if they were relatively experienced in the court room (some are serial pro se lawsuit filers). Am I proud of this? Not really. They lose becuase they don;t know the finer points of the law. I usually get them out on a motion to dismiss or msj. and God help them if we actually get to trial–they couldn’t impeach or admit evidence to save their lives. It’s sad because sometimes they do deserve to win.
Oh and Res don’t worry, you’re just getting to the first step of being a lawyer, believing that you don’t know anything right out of law school. I was continually worried I was going to commit malpractice or use the wrong form for a motion when I first got out.
2nd step is getting over that issue.
Oops. Nevermind. I found the loophole here:
Looks like I’m already in trouble because the guy I want to learn from is actually practicing here in DC.
However, Washington DC allows people to take the bar if they’ve learned their law through an on-line correspondence program.
That’ll shut the folks up. “Yes, I am a lawyer. I got my degree by surfing the web.”
I’ve always wondered why someone can’t learn the law autonomously and then take the bar to practice. I’ve never been to a law school class nor have I seen all of the processes that need to be completed to learn the law. So what information is outside of the realm of book learning that is being taught in class?
(Sorry for the hijack)
stpauler, it is a hijack, but an unsurprising one. Given that milum basically avoided the main purpose of the thread (justifying the elimination of bar admission requirements to help ensure access to the courts for poor people), we might as well let ourselves get hijacked.
Mostly, what you are supposed to learn in law school, other than such stupid arcane notions as the Rule Against Perpetuites (don’t ask) and truly helpful concepts like “strict scrutiny” is how to “think like a lawyer.” A lot of people scoff at this notion, especially those who don’t have the training, but it has some true validity.
Thinking like a lawyer means reviewing a set of facts and doing two things with it: weeding out the crap that doesn’t matter, and taking the rest and applying legal principles to try and meet a client’s needs. Bar exam questions (the essay ones, more so than the multiple choice Multi-state ones) force you do apply such skills by presenting you a set of facts, some of which may well be irrelevant or immaterial, and asking you to act as either a neutral analyzer or a proponent of some legal position based on these facts. While anyone can, in theory, research the relevant law, knowing how to put it all together in a coherent fashion, effectively discussed or argued, is far from an easy task. This message board is often filled with examples of people who fail this task without ever understanding quite where they missed the boat.
Now, does this really require 3 years (4 if you go at night) and 270 plus hours of course work? Probably not. But is it something you can pick up from reading “Law Thinking for Dummies?” Definitely unlikely. 
If one wants to make a more damning condemnation of the current setup, it would have to do with the fact that attorneys in most states are admitted to practice without having to engage in any practical training beyond preparation of an appellate brief and oral argument of same (a process called “moot court”). That’s right, never forced to step inside a courtroom, never forced to draft a complaint, or meet with a client under supervision, or anything. Imagine, if you will, being rolled into surgery for an inflamed appendix and finding out that your surgeon has just passed his boards, but has never actually had a scalpel in his hand. It is this situation that gives ResIpsaLoquitur his sense of nervousness.
But this criticism doesn’t mean that law schools and bar exams are worthless; merely that the system could stand a few good tweaks. California has inflicted, er, that is, administered a pseudo-practical exam as part of its bar now for the last 20 years. When I took the exam in 1986, the “practical” exam was still pretty lame, but I understand that it now requires that you be at least a little familiar with the basic legal pleadings and attorney duties.
I always thought it was - uh - unusual the extent to which so much practical lawyering experience was gained on-the-job, paid for by clients (tho generally at lower rates than more experienced lawyers.) If I hang my shingle the day after I pass the bar, some schmuck stumbling off the street has no warning that I am woefully inadequately prepared to represent them. At least folk going to the barber college have reason to anticipate getting butchered.
In my state at least, there is no requirement for apprenticeship - or any experience beyond classwork - before a lawyer is licensed. In fact, I recall reading that too much of an emphasis on clinical studies may place a school in danger of losing accreditation.
I always think that graduation from an accredited school and passing the bar seem somewhat redundant. If accreditation means anything, then graduation should be proof of qualification. If graduation is not sufficient, then why require accreditation?
Why not license anyone who can pass the exam? Doesn’t passage imply some degree of knowledge/competence?
My personal experience - in law school I took ZERO classes in stiffs and gifts, commercial paper, or tax. No crim, civ pro, property, corps, contracts, or torts other than the required 1st year intro classes. As soon as I could, I loaded up on Con, Admin, and Int’l law seminars. Precious little of which was on the bar exam, and even less of which has any relevance to my practice these past 2 decades.
Law school gave me no more than 50% of what I needed to pass the bar. Probably far less. Remember - even the stuff that I was exposed to in my 1st year, was 2 years distant at the time I took the test. The remainder is thanks to sitting thru BarBri. Note, that is simply sitting thru the sessions and taking notes - not doing any reading, exercises, or practice tests. Thank you Richard Conviser.
It is always kind of a joke to realize that right after the bar exam, most lawyers know more about more areas of the law than they ever will for the rest of their career.
My day-to-day perfomance is at least 99% on-the-job training. Any reasonably intelligent person could perform my job (and a great many lawyering jobs) adequately.
I’m convinced any reasonably intelligent person could pass the bar with only the first year of law school to teach them some basic concepts and vocab, and then a crash course to allow them to cram useless crap to regurgitate and forget.
One area that should be developed IMO - and in which there has been some improvement - is increasing areas where nonlawyers can represent/assist. Either trained paralegals or legal secretaries, or various ADLs where lawyers are either prohibited, discouraged, or not required.
One thing a licensed lawyer does provide is accountability. Someone who is insured for their professional actions and who can be sued should he/she fuck up. For some reason, the legal community doesn’t seem thrilled about encouraging this avenue…
I also favor de-emphasizing the ethics requirement for licensing. Instead, I favor independent and more stringent disciplining of those admitted. But, our honorable profession is self-monitoring.
Also on my list of what I consider masturbatory jokes are requirements for continuing ed, and pro bono. Fortunately, I personally do not need to participate in either. But I’m rambling…
In my present appellate practice, I regularly encounter folk who represent themselves, or choose to be represented by a non-attorney at the initial levels. No matter how well they or their rep do, once they get an atty for appeal you know their first arguments on appeal are going to be inadequate representation, failure to fully develop the record.
Uh - kinda sorta what my learned coleague (Esq.) said.
But much more eloquently, and with that personal touch from individual experience.
And you learn this in Law School? And of course, lawyers never use delaying tactics or other obfuscating means to slow down court procedings, right? Anyway, it’s still unclear to me why the rights of the people should be infringed upon for the convenience of the courts. Perhaps judges need training or authority to clamp down on people who are unable to work within court standard court procedures. Something for someone to think about before he or she goes the uncertified route. But again, if I can represent myself, why can’t I get my best friend (who dropped out of law school and never took the bar) to do it if he could do a better job than I?
There are other ways for people to get the info they need than to have the gov’t do it. Just as an example, if you buy something on EBAY, you can get a listing of how reliable the seller is. It works quite well, and requires no gov’t involvement. The gov’t does not have a monoploy on the knowledge of who is good lawyer or not.
Dewey –
First let me say “thanks!” to you and others for posting on this board – I’ve learned A LOT over the last year –
Second - in response to your post - let me ask whether your objection to court appointed attorneys in general extends to court appointed attorneys specifically for indigent criminal defendants. I ask this because the public defender framework – at least that from the outside looking in – appears to follow the general idea of what was proposed. So – the ‘Lionel Hutz argument’ (i.e. protects bad attorneys) against the model where all attorneys are court appointed - would apply to an even greater extent when we’re dealing with someone’s freedom or life - rather than their pocketbook. Yet – that is the present system for indigent defendants. I do see where you might argue that the present system for indigent defendants isn’t a good one – but is a necessary one – and that necessity is the reason we see it being used. That there aren’t any working alternatives if you want to see indigent defendants represented. I suppose one could go on to say that there is no necessity – here – to use that system
In regards to the argument that ‘there will be an increase of incompetent attorneys if attorneys are appointed rather than having the client come to them in the marketplace’ – I would suggest that if there is a mechanism for weeding out poor criminal attorneys in the public defenders office – (and I hope there is) – that poor attorneys would also find themselves weeded out from the field where they claim expertise using the same or similar method. (I assume that attorneys in the defenders office are graded and have to answer to supervision just like an employee in a public business – and are subject to dismissal for poor performance --)
I would agree that under the present system there isn’t the roulette wheel you described – I also agree that there is value in allowing clients to pick through the attorneys they want to protect / enforce their interests (- yet, that leaves us with a system that only covers some clients, where those who can’t afford attorneys in civil court go without – and only those who can afford the best attorneys have access to that elite group –— Which makes me wonder if the “business of justice” describes a conflict –
The right to proceed pro se doesn’t turn on qualifications, though. People don’t get to represent themselves because they’re qualified to do so; 99.9% of the time, they aren’t. Woefully, cringe-inducingly aren’t. They get do it because they have the legal right to represent their own interests. Nobody has the inherent right to represent somebody else’s interests any more than they have the right to direct traffic. Pro se litigants are actually cut quite a bit of slack in court; judges usually treat them more gently than a lawyer who repeatedly screws up and are required to read their pleadings more broadly and with more deference than they would those of a licensed attorney. However, there’s no reason they should have to cut some slack to anyone else. Also, in the unlikely event that I screw up your case or comingle funds and spend all of your judgment money, you can have me disbarred and recover your losses from my professional insurance. In the much more likely event that your friend screws up your case or spends all your money, you’re screwed.
Probably not, unless you seek out classes geared for that sort of thing. But the bar exam certainly tests knowledge of nuts and bolts procedural things; ostensibly, part of what you do when you pass the exam is proving you have a reasonable grasp of the procedures followed in that state. **
It’s more than a mere convenience issue. Court dockets are already notoriously overbooked. In some places it can take an exorbitant amount of time to get a court date. Judicial resources are scarce, and shouldn’t be unnecessarily wasted. **
So why not use the same system for doctors? Why not get rid of all licensing requirements?
Relying solely on an Ebay-type system would not be effective, because there is no way for a layman to evaluate whether a complaint stems from a prior client simply having a bad case (which is beyond the lawyer’s control) or because the lawyer was actually incompetent. Real life bears this out – most complaints brought to the bar are frivolous, brought by disappointed clients upset at the outcome of their case, but who never had a case in the first place.
Res: While it’s true that the bulk of lawyerin’ knowledge is learned on the job, there is one fact that you have to realize: you know more than you think you do. Assuming you worked hard in law school, you have quite a bit more knowledge than you did three scant years ago.
It’s hard for a young lawyer to see this because you’re frequently only talking about legal matters with other, usually more senior lawyers. Relative to them, you don’t know much. But wait until you talk to a client or other layman. It’s actually a little bit scary the first time you realize that (a) people are actually taking your view of things seriously, and (b) they’re right to do so, because you actually know what you’re talking about.
Tigrs2B1: have you looked into the public defender’s offices lately? Although in some places you’ll find talented, ideologically-motivated lawyers who don’t care for money, in plenty of others you’ll find talentless hacks who barely passed the bar exam, taking court appointments because it’s the only way they can find clients. I’m don’t think we should expand that kind of system to other areas of legal representation.