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No Need to Deregulate Lawyers if We Debunk An Economist

by Carolyn Elefant on October 25, 2011 · 24 comments

in Legal Profession Trends, MyShingle Solo

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Clifford Winston, an economist at Brookings continues to gain mainstream media coverage for his new book, First Thing We Do, Let’s Deregulate All the Lawyers in which Winston and his co-authors argue that non-lawyers can do the same job as lawyers only faster, cheaper and – in many instances better.  In that respect, Winston may be right – because as a non-lawyer, Winston has been able to drum up coverage of his piece in the Wall Street Journal and now, in the New York Times  whereas those lawyers who oppose Winston’s view haven’t gotten equal coverage.

Of course, one reason that Winston’s book is gaining traction is because admittedly, it contains some truth.   Many lawyers do charge too much for too little.  Just take a look at the blogs by many marketing gurus who advise lawyers to under-promise so they can over-deliver, or who encourage a four-hour workweek where the lawyer not the client comes first.  Moreover, there are certainly, there are plenty of bad apples in the legal profession, just as there are in any profession.

As a lawyer who blogs on ethics issues and provides a deep bench of resources to help solos provide top quality service to clients, I am committed to improving the practice of law.   If Winston could show that deregulation would correct the problems in our profession, I’d be all ears.  But Winston’s proposed deregulation solution doesn’t address any of the evils that he identifies.  And if that weren’t bad enough, Winston ignores evidence of harmful conduct by non-lawyers and gets a bunch of basic facts wrong.   The lack of rigorous analysis combined with the factual errors and oversights suggests to me that Winston isn’t interested in a real debate on how to improve the legal profession but rather, that he has an agenda. Thus, rather than discuss the big picture questions related to regulation, I’ll simply pick apart Winston’s assertions piece by piece in an effort to diminish his credibility.

1. Winston says that the legal profession’s monopoly gives rise to higher costs and poorer service. Citing the ABA’s statistics, Winston writes that 125,000 complaints were filed against the million or so practicing lawyers in 2009, with only 800 resulting in disbarment. The numbers sound bad, but Winston doesn’t say how many complaints were truly unfounded or how many resulted in discipline less than disbarment but still very serious – such as a one or two year suspension.

2. Winston says that legal costs would be reduced because non-lawyers would not have to pay for a three year legal education and thus, could open solo practices and charge less. First, individuals entering the legal profession wouldn’t necessarily be debt free – presumably, they will have educational debt from college (unless Winston doesn’t believe that college is required either). Second, while a non-lawyer might charge slightly lower fees to bring business through the door, they still have to charge enough to make a living. If a messy divorce or tricky criminal matter occupies hundreds of hours of a non-lawyer’s time, he’s not going to be able to charge $50 and still stay in business. As I’ve said, though there are many situations where legal fees could probably stand to be reduced, in some situations, a case by its nature takes a long time.

3. Winston says that the poor would benefit from lower prices for non-criminal matters but again, there is no indication that prices would come down. Lawyers already face competition from non-lawyer providers such as Legal Zoom and unbundled legal services are also an option. These providers offer alternatives for basic matters but they still haven’t resulted in legal costs coming down.

4. Winston argues that non-lawyers can be regulated more effectively and there would be more accountability. If that’s the case, why isn’t anyone regulating the non-lawyer debt settlement companies that “negotiate” debts for clients, secure settlements that their customers could have gotten on their own and counsel them not to show up in court to defend the case thus resulting in wage garnishment and a poor credit record? Likewise, who regulated the non-lawyer foreclosure assistance programs that collected $2500 from clients and did nothing to defend them in foreclosure proceedings? In fact, it was lawyers who discovered the banks’ robo-signing scams and helped consumers ward off foreclosure.

5. Winston says that third party providers can monitor law firms’ performance and effectiveness. What metrics would be used? Results won? Money charged? A lawyer can charge $1000 for a criminal matter and rank high on cost but it doesn’t mean the lawyer produces great results.

On the third party evaluations, Winston briefly mentions Avvo, but claims that Avvo hasn’t been able to obtain all of the information required from state bars because of lawsuits. While it’s true that Avvo faced some challenges, it persisted and now, according to its website, has a database that covers all 50 states.  That’s a pretty obvious fact to miss – and I hope that Avvo takes Winston to task for it.  Of course, in addition to Avvo, there are plenty of other places for consumers to make known their views on lawyers – such as sites like Yelp or Google Local Ratings.

6. Winston also says that deregulation would put customers in a position to demand credible and complete information about a practitioner. But is that happening with Legal Zoom? Legal Zoom makes claims that its costs are three to four times less than what an attorney would charge – even though an apples to apples comparison by one lawyer shows that the lawyers fees are 1.5 times more expensive – and also include attorney involvement. Again, another fact that would have been easy for Winston to check if he were not intent on proving an agenda.

7. Winston concludes by noting that two of the finest lawyers in our country – Abraham Lincoln and Clarence Darrow would not be allowed to practice law today since Lincoln was self taught and Darrow did not graduate from law school. Here, Winston is wrong again. In fact, an article a few years back from the Christian Science Monitor on the practice of reading for the bar (basically, self-study and apprenticeship) describes that this is exactly what Lincoln did. The article says that seven states allow the reading for the bar option.

As I said at the outset, there are certainly many aspects of the legal profession that need fixing. The cost of legal services for many consumers is too high, and often lawyers – from solos to big law partners – do cut corners, providing lesser service than clients deserve. But I have no interest in discussing solutions for the legal profession with an author who resorts to false facts – either by intent or accident – to make his point. Besides, Winston would probably justify his shortcomings by saying that he’s been hanging around lawyers too long.

  • Edward Adamsky

    There are many professions that could be deregulated.  Let’s start a discussion on them and go over the issues.  In fact,  let’s start with some simple professions and see if any problems crop up. If they don’t, then maybe we can move to lawyers and doctors.  Some suggestions would be Hairdressers and Barbers, Plumbers, Electricians, Pharmacists, and taxi drivers.  While discussing the issues, try not to come up with any arguments that could apply to lawyers, like protection of the public.

  • http://twitter.com/joshuamking Josh King

    Carolyn, with respect to Winston’s point re Avvo:  We’ve had to do an awful lot of work to access what should be public records data, and on several cases we’ve been threatened with lawsuits by state attorney regulators.  And while we have a database that now covers all 50 states, there are several states where we cannot obtain full information on attorney licensing and discipline, or have to do so on an attorney-by-attorney basis.  

    While we certainly wouldn’t agree with all of Winston’s points re deregulation of the legal profession, the public availability of records is one obvious area – along with advertising regulation and overreaching UPL and MJP rules – where self-regulation of the industry has been a mess.
     

  • Anonymous

    Maybe Avvo wasn’t able to get all disciplinary records but presumably they are available to anyone who calls the bar. By contrast how will people get information on unlicensed providers? How do they find out if a company has been sued about a product? The answer is they don’t. Winston holds lawyers to a higher standard than unlicensed providers never pointing out any problems and saying that the market will take care of it. People are free to choose their own lawyers.

  • Michael

    What malpractice carrier would cover any of these untrained people? Could these non-lawyers avail themselves of contractual limitations on their malpractice liability, something we generally can’t do as regulated professionals? Once the costs of those risks are realized, I suspect these ideas will quickly diminish.

  • Guest

    AVVO is nothing more than a content farm.  They publish a directory of lawyers and have bogus “legal” articles (“how can I beat a speeding ticket?’) to drive content to their site.  In bound links from Avvo to subscribing lawyers sites then increase subscribing lawyers SEO rankings.

    Improvements in Google’s ranking algorithm (especially the Panda update) have decimated content farms like Avvo and will continue to do so. (Same with Justia, Findlaw and the multiple Avvo like content farm competitors)

    As for their “attorney ratings”:  Corporate GCs know who the good lawyers are and don’t need Avvo’s “ranking algorithm”.  Unsophisticated small-law consumers might be impressed with Avvo’s 5 star ratings; but then any fool lawyer can put a bunch of stars under his picture on a website and ghostwrite rave reviews about himself; and the clients won’t know the difference.  If small-law clients started to take Avvo seriously, some competitor service would just pop up and start selling 5 star ratings to lawyers.

    I don’t buy Avvo (or Justia, Findlaw, Superlawyers, Yodlelaw or any competing scam).  SEO has already moved past content farms. 

  • Guest

    In addition to everything in the above comment; I think the Avvo scam will fall apart when one judge lets a lawsuit against Avvo get past a motion to dismiss (which will eventually happen).   The ratings are not an “opinion” (algorithms don’t have opinions).  The ratings are supposed to reflect an attorney’s reputation in the legal community.  A lawyer’s having a good (or bad) reputation is a matter of fact that may (and is) being inaccurately represented on Avvo’s website.  Lots of lawyers circle jerk each other on Avvo to increase their rankings (as should be alleged in a complaint).  
    The fact that Avvo doesn’t let lawyers quit the program is also a basis for a fraud lawsuit. 

  • http://www.wiestlaw.com Edward Wiest

    Winston may be making his argument in extreme terms, but lawyers have to face up to the fact that as many of the services we provide become (or seem to become) commoditized, there is going to be increasing pressure to reduce the scope of activities over which attorneys possess a monopoly under unauthorized practice of law statutes.  Indeed, in Massachusetts, mortgage lenders, title insurers and lawyers have been battling for years over what the role of lawyers is to be in residential real estate transactions.  I think it bears remembering that the phrase “admitted to the Bar” reflects that lawyers were first subject to regulation in their role as advocates before the courts, not as transactional consultants or sherpas through a regulatory state.  If you ask me, Winston is right inasmuch as high costs and the democratization of information will lead to shrinkage of the scope of services lawyers _must_ provide.  To that extent, lawyers mus be vigilant to remain part of the discussion on the issue, so as to demonstrate where their real value exists to utilitarian economists.
      

  • Concord Grad and Proud of It

    What needs to be killed is the ABA rules on taking the Bar.  There is no justification whatever for the rules about brick and mortar libraries, etc.  Anyone with a law degree from any school should be able to sit for the Bar exam in any state, and be licensed if the person passes, period.

  • JimB

    As a retired lawyer (no dog in this hunt) I think a lot of lawyering can be done by specialized lawyers only…antitrust, patents, tax, etc. But a lot of lawyering is already being done by paralegals…many of whom know more about procedure than the lawyer monitoring the effort.

    The general nature of the bar exam evidences its…shall I say uselessness? Specialized exams such as those posed by the IRS are much more efficient in gauging proficiency in the actual work being done.

  • Proud Lawyer

    “Deregulation” never solved any industy’s problems.  That is a Republican ideal that if we operated in the wild, wild west of unregulated capitalism, we’d all be the better for it.  Winston fails to mention the largest U.S. industry that might benefit from his brand of deregulation, namely the medical industry, where there is a shortage of primary care physicians, and where people cannot afford health insurance coverage.  Using Winston’s reasoning, if we just eliminated the requirement for doctors to attend medical school, eliminate their need to complete a residency training period (where they are paid next to nothing), then there would be more “doctors” available to treat anyone and who would undoubtedly work for less money than those licensed as doctors who attended medical school.  Winston also fails to cite other examples of individuals who attended law school but did not graduate, as he could include Ted Bundy in that category.  Mr. Bundy attended a year of law school, and when on trial for murder, elected to represent himself believing that his legal skills were adequate to give himself quality legal representation.  Mr. Bundy was subsequently executed for his cross country  murder spree, and you have to wonder if he might have at least escaped the death penalty if he had a high quality, experienced, and probably expensive criminal defense attorney taking up his case.

  • Sasha Golden

    Carolyn — I do hope you sent this post to the Op-Ed editor at the times. They need to see it.

  • http://twitter.com/BetsyMunnell Betsy Munnell

     Thank you Carolyn for this excellent piece, and to Edward for bringing it to my attention. I read Winston’s absurd OpEd a few days ago, and am still irritated.  The Times should know better, by the way.

  • http://twitter.com/BetsyMunnell Betsy Munnell

    Correction–apologies to Ed Wiest for mis-reading the commenter list.  And thanks to YOU for callling my attention to this excellent article, and your equally excellent comment.  (But I like Ed Adamsky’s comment as well! :))

  • Warrior9504

    Are you really a lawyer? This article was written with very weak arguments that didn’t do much to refute the points made. For example, your first point regarding his failure explore the results of the the complaints made me wonder why you didn’t do it either? Perhaps you are just unable to see past your own self -interest? I’m not in total agreement with his book but one thing we should do is remove the law school grad requirement to sit for the bar in ALL 50 states.

  • Anonymous

    I agree with removing jurisdictional requirements also and having multi state reciprocity. In fact, I routinely move colleagues into my jurisdiction at no cost pro hac vice as a means to reduce barriers. Likewise, I don’t believe that someone needs to be licensed in State A if they operate a firm serving only State B clients – and in fact, I’ve submitted comments to ABA ethics 2020 on that topic. As for the bar complaint issue, I didn’t get the stats but I do follow cases and I see that some of the complaints are for minor advertising violations not stealing client dollars. Also I have no self interest here I compete with non lawyers in my industry. Some do great work, others fail to preserve objections or think strategically and compromise their client’s cases. True if I spent more that 30 minute on this post, it would have been even stronger. But Winston presumably spent a long time on his book and I am not persuaded

  • http://twitter.com/FollowtheLawyer Jay Pinkert

    I’m not following this rebuttal at all. The medical industry example doesn’t make sense because its cost/availability issues are a function of distortions created by the insurance industry (e.g. reimbursement rates to doctors, profit pressures), not training and licensure requirements.

    And how does lamenting what might have been had Ted Bundy completed law school and sat for the bar win converts to your point of view?

  • http://twitter.com/FollowtheLawyer Jay Pinkert

    Since we’re discussing hypotheticals, I’d like to see a robust discussion of the pros and cons of  retaining licensure and regulatory oversight, but expanding the reading for the bar option to all 50 states AND abolishing the law school graduation requirement.

    What if legal education were “unbundled,” and students could cherry pick among schools, classes and instructors based on core competencies required for bar passage? Law schools would be forced to improve quality and reduce costs in order to attract and retain students. Students would be better prepared and less burdened with debt, which in turn would lower the cost of legal services, improve access to justice, make it possible to earn a decent living as a lawyer, improve job satisfaction, lower stress — all sorts of good stuff.

  • http://twitter.com/FollowtheLawyer Jay Pinkert

    A good free market rebuttal.

  • Rjma

     How about just letting the market decide?  

  • Victor R Salazar

    It is pathetic how you people try to defend the job security you enjoy for the time being. It will disappear. It is just a matter of time.

  • Anonymous

    Actually, I regularly compete with non-lawyers. The agency where I practice, Federal Energy Regulatory Commission, permits non-lawyers to represent parties before the Commission – and that happens quite a bit. I’m not afraid of competition from non-lawyers.

  • Anne Marie Smith

    Bravo!  Karen.  This is Alexander Smith’s mom… your former intern.  I read this article of your’s for a paralegal class I am taking.  Alex is ding well, he is a second year law school student.  2 down 1 to go!

  • Smitha

    Sorry, Carolyn….

  • Pingback: Are Law Schools and Bar Exams Necessary? | IAALS Online

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