What about legal blogs where the lawyer does not identify himself?
Think this will ever happen? Unlikely, but it's fun to think about. <g>
xrlq.com
Unlicensed Lawyers
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by Xrlq @ 6:30 pm
A recent editorial in the Richmond Times-Dispatch advocates abolishing the requirement that lawyers be licensed. What say you?
timesdispatch.com
Comments (22)
damnum absque injuria
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1.
I don’t know, having passed that “barrier to entry” I don’t know that I’m a fan of having it taken away now.
The real problem is that I’d like to see a return to apprenticeships as a genuine way to be a lawyer (after a 4-year degree perhaps). I think it’s reasonable to require the aspiring attorney to demonstrate some element of competance before they can hold themselves out as an attorney, but I don’t think people become competant solely through law school and then passing the exam.
I don’t think anyone is suggesting that we should get rid of CPA licensing, if it’s the result of anti-lawyer sentiment that’s driving the differnce that seems a silly reason to get rid of the bar.
Comment by Joel B. — 9/15/2006 @ 7:41 pm
2.
Right now, society presumes that a licensed attorney is a competent attorney (problem with assumptions, I know). Incompetent attorney are deemed to be the exception to the rule. That would no longer be the case if society got rid of its licensing/competency standards for people who want to play attorney.
Since our society has a sorry track record of holding people responsible for the choices they make, society would - not necessarily immediately, but eventually - end up making good on the collateral damage that would result from people using ‘unqualified’ attorneys. Anyone using such an attorney would have a prima facie case that they were denied competent representation… with the end result being a whole bunch of do-overs. Convicted criminals who used such an attorney would get another day in court. Home buyers and sellers would claim their interests weren’t properly represented and seek to reverse the transaction. Mothers giving up their kids for adoption would move to get the kid back on the grounds that they were denied competent advice. Parents using a discount attorney who found themselves on the losing end of a custody battle or having to pay more than they want in alimony would seek to retry the case… the next time with someone qualified.
Of course, society could decide that there are certain tasks for which it is too risky to let an unlicensed attorney deal with… like criminal trials and civil litigation, dealing with complex estates, adoptions and so on, and letting the pretend attorneys deal with everything else. Oh yeah, that’s the system we have.
Comment by steve sturm — 9/15/2006 @ 8:05 pm
3.
Steve’s comment is interesting; when I was in law school, a wise man once said to me, “You know, Jim, you go to a good law school, get good grades, pass the Bar easily, and you don’t know SHIT about practicing law.”
I don’t know if I’d do away with lawyer licensing, but I might do away with the territorialism. I confess, however, that it’s probably self-interest speaking here.
Comment by James Young — 9/15/2006 @ 9:19 pm
4.
I’m not sure. The weakness in the paper’s case, similar to what Steve said, is that while the market might eventually reward the more competent attorneys and weed out the less so, the individual has much more to lose in picking a poor attorney than, say, buying a faulty product (which the market will also weed out). Criminal cases especially so, one presumes, but many other examples that Steve gave.
Comment by Anwyn — 9/15/2006 @ 9:42 pm
5.
Plus, the lazy factor in me says that choosing a lawyer is a momentous decision that’s difficult enough–subtract the presumption of a certain standard of competence, and … ? I’m just not sure.
Comment by Anwyn — 9/15/2006 @ 9:44 pm
6.
Eah, on rethink, I’m not so sure about my last comment. Like the paper says, you can still take the bar, and I for one wouldn’t hire an attorney who hadn’t passed it. I guess the question is, how do you be sure they’re not lying about having passed it, without licensure? Course I know some people scam the system even now, but …
Comment by Anwyn — 9/15/2006 @ 9:47 pm
7.
I’m 100% for it. Everyone’s an expert on the law as far as I can tell. Heck, it’s been less than 40 years that my state has required judges and prosecutors to be licensed attorneys. Let them all hang up their shingles.
Comment by nk — 9/16/2006 @ 12:21 am
8.
In that case, it’s be just like accountants. Sure, you could practice without a license but most folks won’t hire you. And those that did would pay a reduced rate.
Comment by SayUncle — 9/16/2006 @ 11:49 am
9.
I agree with James - licensing is necessary but the territorialism is not. The California Bar thinks Arizona lawyers aren’t good enough to practice in California without taking a brand new test, and the Arizona Bar thinks the same of California attorneys. Like the two men who say they’re Jesus, one of them must be wrong.
Comment by Xrlq — 9/16/2006 @ 8:54 pm
10.
Speaking as a disinterested observer (that is, not a lawyer), I like the idea of allowing anyone to practice law, but still having the bar exam. There is a strong public interest in having a reliable way for non-experts to judge the competence of experts that they wish to hire. The government should license lawyers, doctors, mechanics, builders and anyone else who offers his expert services to the public, in order to give the public a reasonably reliable way to avoid fraud and quackery.
But at the same time, the government has no business forcing anyone to take precautions or involving itself in private contracts between individuals who wish to use their own judgment in such matters, so the government should license experts, but should not forbid unlicensed experts from working. The government should only require that unlicensed experts inform potential clients that they are unlicensed.
On the other hand, Steve pointed out a special problem with this in the case of lawyers — the claim of incompetent counsel that would let anyone hire a non-licensed attorney, and then claim a do-over if he loses in court. Something would have to be done to prevent that.
Comment by Doc Rampage — 9/17/2006 @ 5:01 pm
11.
That’s easy. All we’d need to do is adopt a bright-line rule that anyone who knowingly hires an unlicensed attorney automatically waives any right to argue ineffective counsel. I’m pretty sure that’s already the case for anyone who proceeds pro se. If not, it should be. The only safeguard we need there is to have the judge explain this rule at the beginning of the trial.
Comment by Xrlq — 9/17/2006 @ 9:41 pm
12.
Bear in mind that “licensing” and “certification” are not the same thing at all. I hold over a dozen different certifications in things like project management and network engineering. Not one of them carries any form of license. Not one of them is issued by the government. They’re issued by independent bodies such as COMP/TIA, Microsoft, and Colorado Technical University. And they’re meant to serve as a form of reassurance to my employer and/or customers.
By the way, not all states require that judges be attorneys. Nevada, for example, does not.
Comment by Dean Esmay — 9/18/2006 @ 9:57 am
13.
Licensing Lawyers…
A discussion….
Trackback by Dean's World — 9/18/2006 @ 11:04 am
14.
Xrlq, you’re on the right path, but let’s add these waivers:
1. The client waives the right to make an ethics complaint about the lawyer to a body that can fine, suspend or disbar the lawyer for his actions or failure to act pursuant to the standards of legal ethics (since he’s already not admitted).
2. The client waives the right to sue for malpractice, because professional malpractice is premised on a special duty running from a licensed professional to a client. (The client could still sue for breach of contract, however.)
3. The client acknowledges that there is no longer any such thing as malpractice insurance, since no one will insure a lay person without training or licensure. This means any claim against an attorney is only as good as his personal assets and your ability to reach them.
4. Clients would have to see to their own arrangements for escrow needs. Currently attorneys, unlike butchers, software designers and doctors, have strict fiduciary requirements over trust accounts, including costly and burdensome bookeeping requirements; many states will disbar an attorney, no questions asked and no second chances, for misuse of a penny of escrow money. With no bar admission, this is no longer a means of protecting clients. So now clients will need to contract for fiduciary agents with financial institutions and the like — for a fee.
Interesting, no?
Comment by Ron Coleman — 9/18/2006 @ 12:06 pm
15.
I’m with Doc. I think that a Bar is a good idea, but we should get rid of the JD requirement. (In which case I would get some BAR/BRI and test out in three months.)
Plus, I’m not sure how an unlicensed attorney would secure malpractice coverage.
Comment by Phelps — 9/18/2006 @ 1:21 pm
16.
Ron, a couple of comments: on your (2), I should think that in the case of serious incompetence or misbehavior one could still sue for fraud if not malpractice, no?
As to (3), I expect that insurance companies actually would ensure non-licenses attorneys against various sort of misbehavior, sort of like bonding companies do. The market could come up with various solutions such as certifications (as Dean suggested) that would allow a bonding agency to certify someone on just wills, or just prenups, or the like.
The end result, relying on the market rather than on just the government could very well end up being much more flexible and much more responsive to changing conditions than is the current system.
Comment by Doc Rampage — 9/18/2006 @ 7:55 pm
17.
Nope,
I am against all youse guys qualifications on non-licensing. Any man who has read a lawbook should be able to hang up his shingle. Well, maybe one qualification, he should be expected to face down Liberty Valence with his Saturday Night Special while not knowing that John Wayne is backing him up with a Winchester.
Comment by nk — 9/18/2006 @ 10:14 pm
18.
You are mixing credits, nk. Either he shoots Lee Marvin while John Waynes backs him up or he shoots Liberty Valance while Tom Doniphon backs him up.
Comment by Doc Rampage — 9/19/2006 @ 3:19 am
19.
[…] There is an interesting debate going on over at Damnum Absque Injuria (Xrlq’s place) about whether or one should be required to be licensed with the state in order to practice law. It was inspired by an article arguing against licensure in the Richmond Times-Dispatch. […]
Pingback by A Second Hand Conjecture » The Attorney Cartel — 9/19/2006 @ 12:35 pm
20.
Not to impose my religious beliefs on you Doc (Comment #18), but Tom Doniphon was merely the avatar of John Wayne.
Comment by nk — 9/19/2006 @ 3:46 pm
21.
Lawyers get all shirty about this ‘protect the public’ and their ‘costly’ accounting and it’s nonsense. The legal computer accounting packages might cost $.02 a transaction more than standard AccPacc. Any of you lawyers ever mark that up by a 100% and charge 4 cents? Thought not.
Anyone out there every try to collect after lawyer incompetence or theft? Guess what. You often need to hire another lawyer and sue. What fun. Could go on forever if lawyer number two is also an idiot.
License everyone, certify the skilled, allow for the fact that even the best have bad days and screw ups.
Comment by BlacquesJacquesShellacques — 9/19/2006 @ 5:30 pm
22.
Phelps’ comment reminds me of the convocation at Emory during my first year. The Dean of the law school got up, made a few introductions, and informed us that he could teach us all that we needed to know to pass the Bar exam in three months. Half the people in the room immediately wondered why in Hell we were going to spend three years, $60,000, and countless hours with the heirs to Socrates in law school!
There’s a lot about a legal education which is left to be desired. But I must confess that there are times when it IS useful.
Unlike, say, continuing legal education.
Comment by James Young — 9/19/2006 @ 11:32 pm |
