Written by Tom Gordon
A new book published by the Brookings Institution is calling for massive deregulation of the legal system. The book, First Thing We Do, Let's Deregulate All the Lawyers, uses statistical analysis to prove that the cost of legal services is made artificially high by monopolistic practices. These practices include restrictions on who may practice law (and the broad definition of the practice of law), unnecessary restrictions on the number of graduates from accredited law schools, and a legal system that is often impossible to navigate without professional help.
The authors spend a good portion of the book providing the statistical proof for what many of us would take as a given: The lawyer monopoly allows lawyers to charge more for their services than they would in a free market. Their proposed policy solutions include eliminating mandatory licensing of lawyers, and allowing non-lawyers to own or invest in law firms. Responsive Law has advocated steps toward both of these solutions.
While it's not clear that completely eliminating mandatory licensing would provide consumers sufficient protection against unqualified service providers, it is clear that the current level of licensing requirements exist only to protect lawyers, not consumers. The oft-cited parallel to medical licensure applies here. It's certainly reasonable to require neurosurgeons to go through several years of education and training and to pass a test before they are allowed to cut you open. On the other hand, the cashier at Walgreen's doesn't need any medical training to sell you a bottle of aspirin. Other medical service providers—such as nurse-practitioners, physician's assistants, pharmacists, and physical therapists—have licensing requirements that are less burdensome than those of doctors. In law, the licensing structure treats every legal issue as if it's brain surgery. As a result, consumers have minimal access to the "in-between" levels of service that they do in medical services. Anyone wishing to obtain an uncontested divorce or a simple will must either go to a full-service lawyer or fill out legal forms without personal assistance. As we've pointed out numerous times, the legal profession needs to loosen its restrictions on who can provide legal services so that people can obtain affordable legal assistance at a level of expertise appropriate to their needs.
Permitting outside investment in law firms is also necessary to facilitate the innovation required to create new models for delivery of legal services which will benefit consumers. Currently, with only minor exceptions, US law firms may not have non-lawyer ownership. The American Bar Association is considering this issue right now in its Ethics 20/20 Commission. However, the Commission has already said that it will consider only active outside investment in firms. Responsive Law's comments to the Commission made it clear that if consumers want to benefit from the innovation that has occurred in other industries, then lawyers will need access to capital beyond their own pockets.
The authors of this book provide important statistical support for arguments that Responsive Law and other advocates for greater legal access have been making for decades. We hope that this book will shine greater light on this important issue and create greater awareness of how the lawyer monopoly cripples access to justice.
Tom Gordon is Executive Director of Responsive Law.