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their own decisions. That is exactly what UPL prohibitions
do, however, by preventing consumers and service providers
from engaging in mutually beneficial transactions. In a
counterproductive attempt to avoid the few bad transactions
that inevitably happen under contractual freedom, UPL prohi-
bitions have thrown out the baby with the bath water. It is
far better to remedy the occasional instance of incompetence
than to restrict everyone's liberty in futile pursuit of
perfection.
Furthermore, freedom of contract and increased competi-
tion will eliminate the overinvestment in legal education
that results from UPL prohibitions. Reducing the cost of
entering the market will cause the price of many, although
not necessarily all, legal services to decline, thus en-
abling some people who would not otherwise have been able to
do so to obtain legal assistance and resolve disputes. It
will also open up employment opportunities for individuals
who cannot afford the investment now mandated to compete in
the market.
Offset against those tangible benefits is the cost of a
few transactions that turn out unsatisfactorily. But to
insist on a market in which there are zero cases of incompe-
tence or malfeasance is to set a standard so high that it
can never be attained. Even when licensed attorneys are in-
volved, not all transactions turn out satisfactorily. We
should focus our attention on the problem of making the
consumer whole after the rare cases of harm rather than
attempt to prevent harm with UPL prohibitions. The Washing-
ton Supreme Court was certainly correct when it wrote, "We
no longer believe that the supposed benefits to the public
from the lawyers' monopoly on performing legal services
justifies limiting the public's freedom of choice."101
Conclusion
Unauthorized practice of law prohibitions are neither
necessary nor sufficient for their ostensible purpose: pro-
tecting the public against incompetent legal practitioners.
Free markets deter most incompetents from entering an occu-
pation and soon eliminate any who might enter. No one is
able to fail repeatedly in a market; the penalties are too
severe. UPL prohibitions add virtually nothing to the
market's protection against incompetence. The material
typically digested in law school and later mastered to pass
the bar exam does little to prepare an attorney to handle a
case or advise a client; competence comes from practice and