The law of law

BY GREG LIPPER

Having elevated my already ample level of self-satisfaction by successfully provoking two Federalists and one pseudo-Federalist to foam at the mouth in last week’s Letters section, I took a break from instigation and joined the masses at Saturday’s administration of the Multistate Professional Responsibility Examination (affectionately known as the MPRE). To my considerable relief, the exam included no reference to the “Duty of Courtesy to Opposing Counsel,” the prompt violation of which will no doubt spell the end of my not-yet-consummated membership in the bar. The exam claims to be a rigorous affair — indeed, according to the BarBri materials, “[y]ou cannot pass the examination simply by having good morals and good manners.” But with a little common sense and a healthy desire to regressively restrain trade, you too can join the hallowed halls of the legal profession.

Just a minute, Greg! You mean to tell us that the rules of professional responsibility are not a well-intentioned attempt at preserving the role of lawyers as the prophets of the constitutional system? That these rules restrict entry into the profession and protect scores of substandard legal minds from sufficient competition? That they are a masturbatory attempt to portray lawyers as chivalrous knights in shining armor ready to do justice for all? Of course, such allegations are nothing new. But a couple of hours of MPRE review confirms just how insidious some of these responsibility-promoting guidelines really are.

For instance:

Advertising by lawyers is allowed. Personal solicitation is not. If you have the money to send direct mail, buy television time, or purchase space on billboards, you can promote your services. If you don’t — and prefer to rely on more economical methods such as person-to-person contact or the telephone — you have tarnished the profession and are subject to discipline.

Contingency fees, which allow those with low income and meritorious claims to get into court, are not allowed in domestic relations (e.g. divorce) cases. This rule relegates the poorer spouse (usually a woman) to a significant representational disadvantage.

Fee splitting with non-lawyers is prohibited. Do you and an accountant want to set up a tax firm? You’re out of luck — lest your partner who didn’t go to law school give you and your client the cooties.

The legal powers-that-be justify these rules — and many like them — with reference to the so-called unique role of the legal profession in our society. Law is different, the argument goes, requiring the utmost professionalism and intricate knowledge that only an (accredited) legal education can provide. The Bar, and its attendant rules, regulations and obligations, work to promote the highest level of conduct amongst its members, they claim, which ultimately promotes truth, justice and the American way. Moving.

Yet the biggest barriers to justice are a glut of incompetent lawyers and the high price of most anyone who’s any good. Most of the licensing requirements have little to do with effective representation — creativity, empathy and communication are rarely taught in law schools and are in any event not evaluated by the bar exam. Most of the restrictions that claim to protect the public from unseemly advertising or exploitative fee agreements deprive unknown lawyers of clients and non-savvy prospective clients of information.

Moreover, what could be a splendid source of high-quality and economical legal representation — smart, motivated and articulate individuals who are not heavily in debt — is shielded from the practice of law by the requirement that we must drop three years and $150,000 at law school. Okay, back when Story reigned supreme and the law descended from the heavens, maybe some sort of fancy training was required. But nowadays, the ability to think, reason, research, analyze and communicate requires no special degree. Abraham Lincoln was considered one of the legendary criminal lawyers of his time, and he didn’t even go to college. If otherwise qualified, one can partake in sophisticated fields such as investment banking or public relations without any official certification. And the current requirements are ineffective quality-control devices: spend just a few hours at a local criminal court and you will quickly see a large number of J.D.-possessing bozos who are miraculously dubbed fit to practice law.

If we were really concerned with allowing the legal profession to live up to some lofty ideal, we would open up the profession to enterprising and talented individuals of all stripes — whether or not they have jumped through a series of cartel-promoting hoops that would make the folks at DeBeers proud. Column adjourned.

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