We Don’t Need No Stinkin’ Badges
As I am writing this post on Thursday afternoon, I am not officially licensed to practice law in the state of Missouri. Tomorrow, when many of you will be reading this post, I will officially be licensed to practice law in this state. In order to convince the powers that be to give me their blessing to use my lawyering skills, in February I had to take and pass an arduous and mostly useless ritual called a bar exam. The test is insanely difficult, in no small part because it requires each examinee to demonstrate memorization of a range of legal concepts that they will likely never use in their practice. For example, even though my expertise is in constitutional litigation, I had to be prepared to answer from memory detailed questions related to wills and estates, family law, secured transactions, and commercial paper.
As with most people who have passed a bar exam, now that a couple of months have passed, I probably couldn’t tell you much at all about those subjects without first doing some research about the question asked which is, in fact, what attorneys tend to do in the real world! In short, my ability to earn a living in the profession for which I am trained depended on my developing a (short-lived) command of information that would be thoroughly useless to me after the exam.
All of that is to say that the idea of licensing attorneys is little more than a convoluted way of restricting the services available to consumers and bolstering the rates we are allowed to charge clients, all under the guise of "protecting the public." Well, that’s just silly and patronizing. People recognize the difference between gourmet restaurants and street hot dog vendors, and they can also recognize the difference between a white-shoe law firm whose attorneys graduated from Ivy League schools and a small-time local lawyer who went to night school so he could learn just enough to hang out his own shingle.
I’ll happily admit that there are some bad attorneys out there already, and that there would likely be more if you didn’t have to get permission from the state in order to practice. But academic credentials and a license from the state is no guarantee of quality, just as many fine, smart lawyers might have trouble passing the bar exam. In fact, the people most likely to hire a lawyer with questionable credentials are those who otherwise wouldn’t be able to afford legal representation at all. So the issue really boils down to why the state should be in a position to tell citizens that they are not permitted to choose who could best fulfill their need for legal representation.
The Post-Dispatch carried a story today that touches on this question. Attorneys from Missouri’s Office of Chief Disciplinary Counsel are trying to strip Mark Belz an attorney with a distinguished 30-year career of his law license because several years ago he used $175,000 of his clients’ funds for his own purposes. This is serious business, as attorneys are ethically bound never to breach their clients’ trust in this way, and those who do are almost always disbarred. But several facts make Mr. Belz’s case unique.
First off, he recognized that what he had done was wrong without being caught. He confessed, apologized, and made restitution for the funds used. Second, at the time of his wrongdoing he was suffering from bipolar disorder an illness for which he is now being treated and his psychiatrist has testified that he is unlikely ever to repeat such behavior. Finally, and most importantly, his clients forgave him and continued to use Mr. Belz as their attorney. To the best of my knowledge, no one is interested in pressing criminal charges.
No one, not even Mr. Belz, is contending that he is without fault. But the market provides a ready solution for situations like this, without depriving someone of their right to earn a livelihood. When any service provider, regardless of their profession, breaches the trust of a client or customer, word gets around. Potential clients or customers can discover these sorts of transgressions by exercising a little bit of diligence on their own part. Armed with such information, it should be up to the consumer rather than the government to decide whether they value the provider’s services enough to risk similar experiences.
Removing the state’s authority to exclude people from the legal profession is a market solution that would address a number of issues. Aspiring attorneys could apprentice under practicing attorneys, and thereby would not have to waste thousands of dollars and years of their lives in law schools whose courses are heavy on theory, but do little to teach students how to be lawyers. This would lower the costs of entry to the profession, relieving young attorneys of the pressure to charge high rates in order to pay off student debt. The larger pool of service providers would also result in lower-cost legal service, meaning that more people would be able to afford representation. And, most importantly, it would move us that much closer to being a society in which ordinary people are free to seek their own happiness and prosperity without first obtaining the government’s permission.