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No Need to Deregulate Lawyers if We Debunk An Economist

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.

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