http://responsivelaw.org/index.php/news/blog/item/86-new-book-first-thing-we-do-let-s-deregulate-all-the-lawyersYesterday's New York Times features an op-ed by Clifford Winston, an economist and senior fellow at the Brookings Institution, and co-author of First Thing We Do, Let's Deregulate All the Lawyers. Winston focuses on reducing barriers to entry for those who wish to provide legal services, including the elimination of legal licensing and allowing non-lawyers to invest in law firms. These changes, Winston argues, would promote innovation and lower the price of legal services. We commented on these proposals in an earlier post.
Winston is absolutely right: Licensing laws must be adjusted to allow greater competition in the provision of legal services across the spectrum of legal needs and ability to pay. Responsive Law has commented at length to the American Bar Association about the need to promote innovation by allowing outside investment in law firms. Consumers are not well-served by the current one-size-fits-all system that assumes that every legal need must be met by someone who has attended law school, passed the bar exam, and practices law in a solo practice or partnership.
I wrote a few weeks ago about how the high cost of law school is driving prospective lawyers away from the profession. Another recent opinion piece, by the dean of Massachusetts School of Law, raises another reason why we're facing a shortage of lawyers: the ABA's reluctance to accredit new law schools. This reluctance is particularly strong (and often mandated by the ABA's standards for law school accreditation) when schools deviate from tradition by allowing "too much" credit for experiential learning, or by relying too heavily on adjunct faculty who can share ongoing real world experience with their students, or by taking of advantage of virtual facilities that don't meet outdated requirements about the types of volumes required to be physically present in the library or the amount of space required for studying there.
Some people have asked why Responsive Law, which promotes alternatives to the use of lawyers, isn't rejoicing about a decrease in the number of lawyers. The truth is, even in an ideal system with a range of services available to meet the continuum of legal needs, lawyers will play an important role in providing legal services. The most complex legal issues are almost always best resolved by using a lawyer. And for simpler matters, even when alternatives are available, consumers may choose to use a lawyer because the lawyer provides a better set of skills for their particular problem. However, when the supply of lawyers is capped by the limited number of accredited law schools, the price of using a lawyer increases. And when the cost of a legal education increases, the rate that lawyers must charge increases. Allowing more people to become lawyers–and allowing non-lawyers to provide legal assistance–will give consumers of legal services the greatest range of options at the lowest possible price.
Several recent articles, including this one in the New York Times have described the bursting of the law school bubble, with record low numbers of law school applicants in response to increasing tuition and declining job prospects for graduates. However, the United States is faced with a growing legal services gap, where only the richest Americans can afford the exorbitant hourly rates needed to hire a lawyer to help them with legal matters. With the demand for legal services increasing, why is there a decrease in the supply of people who can provide legal assistance?
The answer lies in the overly restrictive licensing system that governs who may provide legal assistance. Law schools are propped up by the requirement that anyone practicing law (with very few exceptions) be a graduate of a three-year law school program. "Practicing law" is defined so broadly in most states that it applies to anyone offering any kind of advice or service that has an impact on legal rights. Therefore, anyone who wants to make a career out of helping people with legal matters, no matter how simple, must pay for and attend three years of law school, or face prosecution for the unauthorized practice of law.
Want to help tenants with housing issues? Working for a tenants' rights organization and taking some courses in housing law would be a good way of learning the law and procedure regarding these issues, but without a J.D. you won't be allowed to give advice to a single tenant. Want to help people draft forms to write a will or get an uncontested divorce? You may have done so for twenty years as a paralegal working for a $300-an-hour lawyer, but without three years of education at a cost of over $200,000, you won't be allowed to offer those services directly to customers at a far lower cost.
To fix this disconnect between supply and demand, we need to allow a wider range of service providers, with training appropriate to the tasks they are performing. This could take the form of intermediate-level licenses for limited types of services. For example, a licensed social worker could be allowed to perform divorce-related legal services, either by virtue of her existing license or with some additional testing or coursework. California and Arizona (soon to be joined by Washington) allow licensed document preparers to provide services directly to consumers.
In the field of health, we don't require everyone to get a medical degree to provide services. Nurse practitioners, pharmacists, and physicians' assistants have less burdensome educational requirements. Massage therapists don't have any formal degree requirements and usually have a simple testing and coursework requirement for their licenses. Fitness trainers aren't required to have any licensing to guide people through exercise and diet regimens. In the field of law, however, we require everyone providing services to have a law degree. That's like requiring your massage therapist or your spin class teacher to have a medical degree!
If we right-size legal training to the types of services we're training people to provide, then the deflated law school bubble will consist of schools that train lawyers to deal with the most complex legal matters. At the same time, states could experiment with other models of licensing and training for simpler legal services, so that people with a desire to work in the field of law could be trained at a lower cost. These service providers, who would not face crushing law school debt, would be able to provide services to consumers at an affordable rate, easing the access to justice burden.