US LAWYERS: Corralling the Thundering Herd

It was so cold last week that I saw several attorneys with their hands in their own pockets.

Q: What's the difference between a catfish and a lawyer?
A: One's a slimy scum-sucking bottom-dwelling scavenger; the other is a fish.

Taking his seat in chambers the judge faced the opposing lawyers saying “I have been presented by both of you with a bribe,” the judge began while both lawyers squirmed uncomfortably.   “You attorney Blowhard gave me $15,000 and you attorney Pompous gave me $ 10,000.   The judge reached in his pocket and pulled out a check, which he handed to Blowhard. “Now then, I’m returning $5,000 and we are going to decide this case solely on its merits.”

ScalesJustice

It is the role of lawyers to argue either side of a case, usually depending on who happens to be paying them.  Some believe lawyering is the Second Oldest Profession.

It is the role of lawyers to end conflicts between people by acting as hired pirates dueling over a treasure-chest.   The weapon of choice is thick stacks of paper tossed against one another in a gothic-style building, with all players donned with $800 suits, except for the judge, sitting high above, wearing his gown and grumping out commands. 

Somehow, people feel forced to pay huge fees for all such craziness.

Any occupation defined by these two fundamentals is bound to become the butt of sarcasm and dark humor, often deservedly so.  In US Colonial times the art or lawyering was of such low repute some communities barred lawyers from living within their boundaries.

To make things far worse America’s legions of lawyers take a disproportionate role in the making of the law itself.  In the new Congress a full 40% of House members are lawyers while in the Senate the number climbs to 55 out of 100.  The proportion is identical for state governors, 55% lawyers.  The President is a lawyer.  The state legislatures manage somehow to keep the number down to 22%. 

Is this not a bit like the baseball teams appointing its members as the umpires calling the game?  By the way, is that not how judges are selected too?  The judiciary is 100% lawyers.

However, when criticism of America’s lawyers’ guild turns to the more serious the reaction makes people shout rather than laugh.  In the US, with enough lawyers to blot out the sun, the worst of the wreckage is the profession’s failure to even get the fundamentals covered for the public. 

A Self-Concerned US Profession

With one practicing lawyer for every 250 Americans the United States is the longtime major-league champion of litigious culture.  By comparison, Japan gets by with one lawyer for every 3,000 citizens.  Denmark has approximately one lawyer for every 10,000 citizens.

One might conclude that the tidal flood of US lawyers would seriously drive down average salaries in the profession there, but the opposite is clearly the case. 

The median income for all US lawyers, tax sliding aside, is $79,000/year.

The median annual income for lawyers in Germany, the best paid in Europe, is about $70,000.  In Japan it is $60,000.  The same figure for Australia.  In Italy the figure is $45,000. The median law firm pay in any large country does not compare favorably to US incomes for lawyers, even though there are many more lawyers per capita in the US than almost anywhere else in the world.

When measured on the scale of serving the legal needs of the public the United States also stands out in the rankings. 

Alarmingly, amid all of the riches, the US legal profession only manages to represent half or less of civil litigants in the state courts.  Civil cases are just about any case that does not involve criminal charges.

In comparison almost all civil litigants in Europe and Asia do enjoy the advice of counsel one way or another.

If that figure is shocking so is the US figure on the criminal side of the courts’ docket.

Only about 10% of felony defendants in the US state courts have representation by private counsel.  The remaining 90% are “served” by the public defender’s office or court-appointed counsel in a guilty plea assembly line for justice.

In short, the vast majority of Americans cannot afford effective access to the courts.  The few who can afford to pay large fees to the legal profession are the only parties to enjoy all of the many protections the law may provide in a given case. 

The legions of unrepresented US litigants is a most shameful example of class privilege, one that dominates the very halls of justice where equality before the law is to be strictly practiced.


Little Bang for the Buck

The practice of law in the US is regulated not by a public agency, but instead by a private association of attorneys, the State Bar Association.   This private guild has been cloaked though with a number of governmental powers, including adjudications in the area of attorney misconduct and, most importantly, a monopoly on the practice of law itself.  State law compels paid membership in this private association in order to be an attorney.

If one begins to look under the hood of the bar associations’ effectiveness in fighting for the people who have managed to hire one of its members, the picture deteriorates more.

Fewer than 2% of the high court civil suits end in a trial.  Less than 5% of criminal cases go to a trial.  Many more domestic relations cases are tried in court, but more often than not by unrepresented litigants.

One has to wonder if so few trials are held why so many cases end up in court in the first place.  Are the lawyer bills outlasting the litigants’ resolve in court?    

What if surgeons so seldom had to perform the most crucial work they get hired for?

The handsomely paid trial lawyers in the US postpone far, far more civil trials than the trial dates they keep.  That is on a court calendar that takes two years or more to get to a first trial date.  The number of trial continuances granted vastly exceeds the number of trials ever held.

So few requested trial continuances are contested and then denied, those instances are hard to locate in any number.  Obviously, it is not an absence of space in our typically empty courtrooms that drives trial continuances, as the above figures so clearly show.

So, it seems the anecdotal horror stories one often hears about high-priced ineffective lawyers do add up to a quite frustrating situation.  The public is simply not being adequately served by its legal profession. 

It seems the regulators of the legal profession are of the very same clan as the regulated, always working together primarily for mutual, personal interests, to keep their overall numbers down, the competition outlawed, their pay high, even largely set by the guild, and their workload light. 

The US lawyer combine is one of the most powerful and effective of guilds ever, shaping in large ways the law itself.

Solutions to the Guild System

What can be done to better serve the nation’s legal needs?  What possible changes in the profession would have a positive effect on the many lawyers who end up serving in the legislatures and executive branches across the country?

The primary vehicle must be pushing our legion of lawyers off their favored perches so they can join and serve the general economy in a free-market way.  The guild excesses and its way of thinking must be purged along the way.

Better Defining the Practice of Law

The first most obvious reform needed is to allow basic legal services to be provided by companies other than law firms.  There is simply no need to have attended law school and passed a bar exam in order to draw up a simple will or a deed or a marital separation agreement or many, many other tasks the law presently says only licensed attorneys may do for others. 

This simple measure of more narrowly defining the practice of law will fill in a large way the unmet needs of people for simple things like wills, deeds, collections, uncontested matters and more.  There are many Americans who cannot deal with court paperwork at any level, frozen-out in effect.

A great beneficiary of this simple reform would be the judges and court staff who today end up charged with meeting this unmet need for legal help.

This is trust busting at the heart of the guild privilege enacted into law.  It is the restoration of capitalism to a captured market.

Making Certain Licensed Lawyers are Proven Capable

The more narrow definition of the practice of law need not jettison attorney licensing altogether as an unregulated free-market would operate; on the principle of “buyer beware”.  Regulation of a positive sort can be, of course, desirable.  For something as important as the potential loss of your liberty or your life savings it is a proper role of the state to license the practice the law, but at a much higher margin of technical proficiency. 

The present bar examination method is the obvious cornerstone for attorney licensing, one that needs though to offer a wider testing of the many skills a good attorney needs.  

Historically, the bar exam in the United States has only covered scholarly subjects.  In Germany, for instance, the examination and licensing regime for lawyers is multi-faceted.  The German system is an expansion of the scope of the British Barrister/Counselor tradition, the system the US common law tradition derives from.

In order to keep the quality of attorneys high it would be best for the states to maintain a bar examination that is quite rigorous, one more diverse and uniquely challenging than the present tests.  That is clear anyway.

What is not needed though beyond a rigorous bar exam is the need for applicants to have completed college and law school as the admission rules presently require in almost every State.  Those very high-cost, additional, paper qualifications are simply unnecessary and even illogical when one already has the protection of a challenging bar exam.  The wonders of independent learning in the digital age are quite empowering compared to past times.

This is not to say colleges and law schools are unnecessary.  Many people undoubtedly benefit greatly from formal training of this sort in order to learn a high profession.  High academic achievements are impressive for any business hiring new people.  Certainly, most lawyers licensed to practice would still be college and law school graduates anyway.  Even within that highly trained category today only about 70% pass the bar exam.

The college and law school graduates though should not be given a monopoly of the legal profession; given the power to keep other equally qualified people out of the profession altogether.

Should the States expand the scope and difficulty of the state bar examination and at the same time dispense with the remaining artificial requirements for licensing, there will be a gold rush of highly capable self-learners to the legal profession.  They will have to prove their worth and many will.  Many of the best lawyers in the world will come from this gold rush, the ones who pick up the law and people like a bloodhound on the trail. 

Placing the Law for Lawyers Before the Court

Two other areas of lawyer elitism that feed the guild mentality have an obvious solution.  Those areas are attorney discipline and client fee disputes, both now largely entrusted to the bar associations.

The first measure is to take the private bar association out of the attorney disciplinary system entirely and generally remove the matter to the court system for civil cases we already have in place, a hall of justice that seems to be good enough for everyone else. 

Ditto goes for attorney-client fee disputes and any other official function the state bar presently holds.  Such an organization should be a private association of lawyers, not one donned with government powers.

It is time for lawyers not to be judged by their fellow lawyers, especially concerning their own deficiencies.  Transparency is needed and lacking in the present guild system.  So is objectivity.

Oiling the Wheels of Justice

One other part of the legal guild needs an energizer pill, the state court dockets.

When excusing-making for trial continuance seeking by lawyers becomes futile the good lawyers straighten up and speed up.  The bad lawyers are forced to step aside. 

Time to end court delays for weak excuses, especially when represented by counsel.  The rocket docket should be the rule.

A Profession to be Admired Again

Every State in the Union has each of these legislative options readily available for pursuit.  This is one area of life, believe it or not, where States are not largely dictated to by Washington, D.C.

With these four general reforms the quality of legal practice in the US will rise considerably over time, while the cost of legal representation, especially in non-complex matters, plummets quickly.  The profession will be restored from decades of crony statism and guild maneuvering.  Achievement rather than special privilege would become the new cornerstone in the American legal marketplace.

As a result, the public will have many more options and much more satisfaction with the legal professionals they select.

And, possibly best of all, the lawyers who get elected to public office will come from a profession that is competitive, effective and self-reliant, as all professions should be. 

The goal is a legal profession and a legislature that takes pride in its refusal to bend to self-advantage the law itself.


Here is a similar article for the medical profession.   Editor