Throw the bar open: a proposition (for milum)

Great Debates
141

Parvnik

Twenty years ago I was on the deck of a fishing boat out on the Gulf of Mexico drinking beer and talking with a bright young man who had just passed the state bar exam. During a lull in our conversation he looked out from the boat and said unto the distant bluegreen waves…

“You know…my time is worth two hundred dollars an hour.”

I considered his odd comment for a minute and then wondered what circumstances might have led the boy to say something so outrageous. Finally I said,
“Son, you are full of shit. Even the President of the United States’ time is not worth two hundred dollars an hour.”

** Law school and the Alabama State Law Exam are merely protective devices here in Alabama and therefore whatever they taught that boy was full of bullshit.**

142

You didn’t answer my question. At all. You just provided yet another anecdote that shows yet another reason why you don’t like lawyers. You don’t know what’s taught in law school or what’s tested on the bar (except that it must be “bad”), and you don’t know what would be on your proposed test either, assuming you actually are proposing a test and not dodging. You didn’t address my post about how you said “drop legal exams” with no qualifier, either. Are you saying now that’s not what you meant?

And just for jollies, the President makes somewhere around $200g a year, a pretty low salary when you consider what, say, Gates or Eisner makes. He’s a civil servant in the federal government. After he leaves office and starts getting honorariums for speeches, though, try several thousand dollars an hour.

143

Long thread. Going through and commenting as issues are raised.

Ahh, Dewey, Dewey, Dewey, this one is pretty damn funny. It is quite often in a litigator’s (and his/her client’s) interests to slow down the pace of a trial or other proceedings, and the licensed litigator’s putatively superior knowledge of procedure assists in causing delay. As one judge once said to my partner, semi-admiringly, “Mr. D--------, you could delay the sunrise.”
And yes, the use of such delaying tactics impairs access to courts and uses up finite judicial resources. That is not the litigator’s concern; his concern is the best interests of his client. It’s the tragedy of the commons.

Of course, this assumes that a layman cannot acquire a grasp of procedural matters. I strongly dispute this - they are all written down, and anyone fluent in the language can learn them. It ain’t rocket science.

IMO, you’re wrong. Cases are simply written in an often turgid style. You learn the style, you can read cases. And it don’t take three years of “professional legal education” to do so - my last two years of law school consisted simply of reading more and more cases, not learning how to understand them.

Me, I didn’t get through more than 50 pages of Gravity’s Rainbow before I gave up in frustration. Other people read and enjoy Pynchon’s work, which, I daresay, is considerably more difficult to read and understand than Brown v. Board of Education. And it doesn’t take some one three years to learn how to read Pynchon.

As for the bar examination, it is a tragic waste of time. I daresay that more than 3/4 of the questions on the bar related in no way to any clients, cases, or issues I have come across or will ever come across in my career. I learned them for the bar, and promptly forgot them. If they ever do arise, I will do what any lawyer would do - refer my client to a specialist in that area of law.

The law is unique amongst the professions; it only requires specialized knowledge. Other professions require specialized skills along with knowledge. The skills of an attorney are to read, write and speak. One need not have a license for those skills elsewhere; a license is not needed for law.

Selfishly, I really like law schools and the bar examinations; they cut down on the number of attorneys, limiting competition, and act to justify the high fees I charge clients. In short, they line my pocket.

I further agree that I would rather be represented by an attorney fresh out of law school who has never taken on a case before than an attorney who has neither gone to law school or had any experience. I would wager, however, that after about 5-10 years, the differences in skills and ability would effectively disappear (assuming equivalent intelligence, fluency, etc.)

I don’t think law schools and bar examinations should be limited. But I don’t think they should be necessary. I think that a person putting up his shingle should be required to affirmatively inform clients that they have not gone to law school/not take the bar, and then let the client decide.

Sua

144

Er, the first sentence of the last paragraph should read “should be eliminated.”

Apparently, my command of the language isn’t great. Perhaps I should turn in my license. :smiley:

Sua

145

Of course a layman can learn them. Lawyers are people who used to be laymen before they learned the law. The issue isn’t whether or not this is some arcane field of knowledge only a few people can master; I think we can agree that’s not the case. It indeed ain’t rocket science. The issue whether or not they should be allowed to practice until they have accquired a minimum of legal training, be it law school or apprenticeship, and demonstrated a basic understanding of that knowledge. You really think anyone who can steal a shingle and a can of paint should be allowed to represent someone on a capital murder charge?

146

Well, I don’t think someone who stole a shingle and a can of paint should be allowed - that would probably violate ethics rules. :wink: However, someone who bought the shingle and paint certainly should.
Said person should be required to affirmatively inform the potential client that (a) he/she has not been to law school and has not taken the bar examination, and (b) what experience he/she has had - how many cases, what types of cases, and success rates. The client could then decide whether or not to hire him/her. If the client believes that a person is the best person to represent him/her, the law should not stand between the client and their choice.

Look at it this way, pravnik; if you were up on capital murder charges, who would you rather have representing you - a licensed attorney who has spent his career drafting wills and has never seen the inside of a courtroom, or a paralegal who has worked on 25 capital murder cases? I’d take the paralegal any day - but the paralegal is barred from representing you, while the hopelessly inexperienced and uninformed estates attorney can go into court and send you on an express train to the death chamber.

I would further add that the non-licensed attorney should not be excused for ignorance; if they fail to learn and employ proper trial procedure, they should be subject to sanction by the Court. If they are negligent in their representation of their client, they should be subject to malpractice lawsuits.

Sua

147

You’re changing the argument. You’re asking me whether I’d rather have a O.R. cardiac nurse or a podiatrist do my heart surgery. I’m asking you if you’d like for a mechanic to do yours. In other words, I’m asking if it’s acceptable to allow someone with no legal training whatsoever, and who has not demonstrated to anyone that they have gained one iota of knowledge on their lonesome, to practice law, or for that matter medicine. Don’t you think that might lead to just a little malpractice?

148

True enough, and we could have a fulsome discussion on the propriety of various delaying tactics, to what extent judges should be able to dislodge them, and to what extent attorneys who use them should be sanctioned. But just because there are delays from one source doesn’t mean we should make things worse by adding delays from another source. Just because courts shoulder the burden of deliberate delaying tactics doesn’t mean it’s a good idea to further encumber the courts with the delays inherent to an unqualified practitioner muddling through the procedural niceties of trial. **

Key to your ability to do this is the ability to spot legal issues you are unfamiliar with, recognize that you do not have the expertise to handle them, and referring your client accordingly. The bar exam is valuable not because it guarantees that every lawyer is a complete expert on every subject tested, but because it helps insure that all licensed attorneys know enough about various areas of the law to recognize potential issues and to seek out specialists accordingly. **

I’m wondering what “specialized skills” (as opposed to “specialized knowledge”) my wife, a Big 4 CPA, has beyond reading, writing, and the ability to do simple math. :slight_smile:

149

Of course, he can only do that if he’s willing to violate well-established canons of ethics that dictate a lawyer is not to represent a client on a matter for which that lawyer lacks sufficient expertise.

150

I don’t think I am - a paralegal and a mechanic have precisely the same legal right to represent you in your capital murder trial - none.

But let’s move away from the paralegal. Let’s create a hypothetical man, who decided that he didn’t want to spend $120,000 getting a law degree. Instead, he spent $2,000 buying the law texts used at Harvard and got himself a Westlaw account. He read the books cover to cover, then found a four year old bar exam on the Web, and took it and passed with flying colors. He opens up an office. He informs potential clients precisely of his training methods. A potential client decides to hire him. Why should the client be denied the fully informed right to representation of his choice?

Hell, let’s go with the mechanic. He decides that there is a lot more money to be made as an attorney. He hangs a shingle. He informs his potential clients that he has no experience, and all he has read is Lawyering for Dummies. A potential client decides to hire him. Why should the client be denied the fully informed right to representation of his choice?

It very well may lead to malpractice. So what? If the mechanic is willing to expose himself to liability for malpractice, and the client is fully willing to accept the risk that his mechanic/attorney is incompetent and may well lose the case, well that’s their decisions. What business is it of the state’s?

Sua

151

Dewey, the specialized skill for the CPA is the math. According to one of my law profs, the whole reason we were in law school instead of medical school was that we couldn’t count above 20… :smiley:
Well, actually, these days the specialized skill is the ability to use Excel which, after years of use, still utterly befuddles me. :wink:

As for the estates attorney hypothetical, change it to an attorney who has been second chair on one capital murder case. Such a person would not violate the canons by taking on the case - and I’d still prefer to have the paralegal.

Sua

152

Sua: two guys come into your office on a job interview. One tells you he’s spent the last four years reading every book on ecomonics in the public library. The other tells you he graduated from the Univeristy of Texas magna cum laude with a degree in economics.

For one, you can check on the UT guy to see if he’s lying. Not so with the library guy. He may talk the talk pretty well, but since I know nothing about economics I don’t know if the Keyesians and fiscal models he’s throwing out actually mean anything. Same with your self-taught lawyer: library guy might be Good Will Lawyering, but how can you tell? With a liscensed attorney you can at least see where he graduated from, if he’s ever been disciplined, etc. etc. One of the purposes of a bar is to be a self-policing organization: make obtaining membership contingent on demonstrating a basic grasp of the law and ethical obligations, and make keeping membership contingent on meeting minimal professional and ethical standards. Having the knowledge isn’t enough; you have to demonstrate that you have it and are effectively and ethically using it.

By way of example, “Notario Publico” means “notary public” here, but in Mexico it’s a term for a high level attorney. A common scam on immigrants is for a notary to hold themselves out as an attorney, promise to get them citizenship, and then run off with their cash, leaving them supremely screwed. This is precisely the sort of situation that liscensing is supposed to prevent. People who go to lawyers shouldn’t have to be subject to caveat emptor; they don’t know good advice from bad and should be able to expect a minimum standard of representation and accountability. Removing the liscensing requirement would open folks already in trouble to rampant fraud and malpractice.

153

The bar can still self-police - the only difference is that there won’t be an entrance exam to the bar. If you are found to violate the Rules of Professional Ethics, you will be sanctioned accordingly.

('Course, your apparent belief that the bar is currently an effective self-policing organization is touchingly naive. :D)

As for the poor folks being open to rampant fraud and abuse, there is a simple answer - people can still go to an attorney who graduated from an accredited law school and passed the bar. I’m not proposing we take that option away; I’m saying that people should have additional options.
In reality, of course, the fact that a person graduated and passed the bar is in no way a guarantee that the client won’t be scammed. The bar currently is a pretty ineffective tool for preventing that (IMO, self-interest makes self-policing organizations a really bad idea).

Sua

154

I know you’re posting this tongue-in-cheek, but in the interests of fighting ignorance: nothing a CPA does in the course of an audit involves mathematics more complicated than simple division. Anyone who successfully navigated high school algebra can do the math.

The real value a CPA provides is professional judgment and specialized knowledge – is a given lease a capital lease or operating lease?; should an expenditure be treated as an expense or capitalized over time?; does threatened but unfiled litigation meet the requirements for inclusion in the company’s financials? – and it is these things that are tested on the CPA exam.

And your prof was wrong: my wife and I met in college – we were both accounting majors. :slight_smile:

155

No, but it does IMO reduce the likelihood of a client being scammed. Securities fraud still happens in spite of a wealth of SEC regulations; that doesn’t mean we should scrap those same securities regulations. A measure doesn’t have to be 100% effective to be valuable.

156

Listen to Sponte, Dewey, Sua says, in effect…

The right to not be scammed is reserved to the American people at large, and should not be delegated to the very group that gives birth to most scammers.

This is the same principle that doesn’t allow a hand picked >:)< jury of pickpockets to give verdict on a man charged with pickpocketing, even though it can be easily proven that they are, indeed, a jury of his peers.

157

No, Milum, that’s not what Sua is saying. He questions the efficacy of the licensing system as implemented, not the goals of that system.

And he has a point about the experienced paralegal. To my mind, that situation is best addressed by California-style systems that allow alternative means to qualify for the bar. A paralegal of X years experience probably shouldn’t have his or her lack of a law degree held against him or her. So fine: let those folks sit for the bar exam, too. That doesn’t mean any random Joe off the street should be permitted to practice law.

158

Don’t listen to him, Milum. We all know lawyers are evil and greedy; it’s evident to any willing to condescend to a plain and evident reading of the Constitution. Give 'em what for! Smug up!

159

** pravnik**

Now wait just a cottonpicking minute, pravnik, its not you lawyers that are evil; it is your greed that is evil. Shed your greed and once again come forward to live in the company of good men.

Meanwhile, let’s settle back, smug up, and listen to… the sweet music of the spheres :slight_smile:

** ___________________________**

“Why pick on lawyers? Doesn’t every trade and profession have its good and its bad members? What’s so special about the lawyer industry?
In fact, there is something unique about the lawyer industry.
There is no trade or profession which has perversion of justice itself as its top priority - except the lawyer industry.
The lawyer is a hired gun. He is paid money by one stranger to go into court and slander another stranger. Whoever has justice on his side is not his concern. His only “moral” concern is to what extent he zealously represents his client - not whether justice is achieved. And if he is representing the guilty it is his solemn obligation to see that justice is perverted.”* - A pro pro se litigation society, 1998 now defunct.*
An Ancient Roman law - lex cincia - prohibited paying fees to lawyers for representing anyone in court: “If no one paid a fee for lawsuits, there would be less of them! As it is, feuds, charges, malevolence and slander are encouraged.” - Senator Gaius Silius during Senate debate [47 AD.] of the issue.

“The historian J.B. McMaster wrote that during the early American Republic: ‘. . . [lawyers] were denounced as banditti, as bloodsuckers, as pickpockets, as windbags, as smooth-tongued rogues . . . . The mere sight of a lawyer . . . was enough to call forth an oath or a muttered curse. . . .” citing J.B. McMaster, History of the People of the United States, vol.1, quoted in Warren, A History of the American Bar (Boston, Little,Brown,1911), pg. 216

“The case against the lawyer has not been stated more bitterly than by Plato . . . A philosopher has his talk out in peace, and wanders at will from one subject to another, not caring whether his words are many or few, if only he attains the truth. But the lawyer is always in a hurry; there is the water flowing through the water-clock to drive him on and not allow him to develop his points at will; there is his adversary standing over him, enforcing his rights; there is the pleading to be read, from which he must not deviate. He is a servant continually disputing before his master, who is seated, and has the cause in his hands. As a consequence, he has become tense and shrewd; he has learned how to wheedle his master with words and indulge him in deed; and his character becomes small and warped. His thoughts are never disinterested, because of the issue at stake, which is sometimes life itself. From his youth upwards he has been a slave and that has deprived him of growth, straightforwardness, and independence; dangers and fears, which were too much for his truth and honesty, came upon him in early years, when the tenderness of youth was unequal to them, and he has been driven into crooked ways; from the first he has practiced deception and retaliation, and has become bent and stunted. Consequently, he has passed from youth to manhood with no soundness of mind in him; but he thinks he has become clever and wise. His narrow, keen, pettifogging mind reveals its helplessness when, divorced from its pleas and rejoinders, it is brought to the contemplation of the nature of right and wrong or of human happiness and misery. He can make a fawning speech smartly and neatly, but he cannot discourse intelligently on the meaning of the good life.” - Huntington Cairns, Legal Philosophy from Plato to Hegel (Johns Hopkins Pr.,1949, p.74-75; citing Theaet.

  • Jonathan Swift’s Gulliver’s Travels, Chapter V:* “There was a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid.”

The lawyers’ motivation is greed - not justice.

  • The milum, 1972.
    “Ninety percent of our lawyers serve ten percent of our people. We are over-lawyered and under-represented.” — Jimmy Carter, Thirty-ninth President, in a speech before the Los Angeles County Bar Association, 1978
    And the notion that lawyers are “officers of the court” and that the lawyer business is non-commercial was deemed “sanctimonious humbug” - * the U.S. Supreme Court*

“‘We all know that law offices are big businesses, that they may have billion-dollar or million-dollar clients, they’re run with computers, and all the rest. And so the argument may be made that to term them noncommercial is sanctimonious humbug.” (Bates v. State Bar of Arizona (1976) 433 U.S. 350,368 ).

_______________ :slight_smile: END :slight_smile: ______________

160

Sua, how can you sue someone for malpractice, when there’s no professional standard against which their conduct can be judged? Isn’t that the point of a bar exam, to ensure that there is a minimal standard of conduct and practice, such that it’s possible to claim malpractice?

If I hire the mechanic who’s been reading Lawyering for Dummies, and he completely blows my case, on what basis can I sue him for having poorly represented me?