The Legal Profession Defends Its Turf

October 13, 1998 • Commentary
By George C. Leef

Chances are that you’ve seen Norman Dacey’s book, How to Avoid Probate! which has been helping Americans steer away from the shoals of probate for more than 30 years, without the expense of an attorney. Today, you will find this book and many other self‐​help legal books available in stores. But did you know that if the legal profession had had its way, Dacey’s book would have been kept off the market?

The New York Bar Association sued to prevent sale of the book on the ground that it constituted “unauthorized practice of law.” Fortunately, the New York Court of Appeals ruled in favor of Dacey and the freedom to publish. But the allure of using government power to stifle competition never goes away.

Currently, the state bar of Texas is waging war against Nolo Press, a publisher of self‐​help law books. A state bar committee has been “investigating” to determine whether the sale of Nolo’s books and computer programs violates the Texas unauthorized practice statute. A hearing before the Texas Supreme Court is scheduled for October 21.

The case ought to be a slam‐​dunk win for Nolo Press. The First Amendment is an awfully clear statement that government must not interfere with freedom of the press. Even if one or more of Nolo’s books were inaccurate or deficient — and there is no evidence of it — there are better ways of dealing with that than to open the Pandora’s box of allowing the government to decide what books may be sold.

The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence.

Nolo’s travails ought to lead us to think not only about the First Amendment, however, but also about the very concept of “unauthorized practice of law” (UPL) itself. In every state except Arizona, there is a legal prohibition against practicing law without a license from the government. When bar organizations bring UPL cases, they almost always say that the laws are necessary to protect the public against dishonesty and incompetence. That’s a weak argument.

To get a lawyer’s license, you must pass the bar exam, and you’re not allowed to take that exam unless you have graduated from law school. In many states, only an “approved” law school will do. The underlying assumption is that only those who have gone through this wonderful course of training can be relied upon to render good legal assistance to others. But that assumption doesn’t stand up.

Many judges, law professors, and lawyers candidly admit that the prescribed route into the legal profession is neither necessary nor sufficient to ensure legal competence. Much of what is learned during three years of law school and crammed in for the bar exam is forgotten once a lawyer actually settles into an area of practice. That’s when the real learning begins.

The problem is, not that the law school and bar exam gauntlet is bad preparation, but that the legal profession has made it the only preparation allowed. The cost of going through that gauntlet is very high, but, as many disinterested observers have pointed out, it does surprisingly little to get the would‐​be practitioner ready to practice law. The result is general overinvestment in legal education that drives up the cost of legal services.

Before the American Bar Association began its crusade for “high standards” in the 1920s, many capable lawyers attended law school for only a year or two, not the now‐​mandatory three, and the majority of lawyers did not attend law school at all. They learned law as apprentices in law offices. When lawyers had the freedom to choose the training they thought best, few decided that three years in school was worth the cost.

The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence. Professionals want to succeed and will find the kind of training they need to do competent work for their clients. Fear of failure and financial loss is a stronger deterrent to incompetent work than any licensing scheme.

Arizona has had no UPL statute since 1986. Consumers can take their problems to lawyers or to clinics staffed by paralegals. The latter specialize in routine work they know well and perform for fees most people can afford. Consumers don’t have to pay for more legal training than they need.

Competition works as well in legal services as in other markets. But we’ll have to get rid of the UPL statutes to enjoy the benefits.

About the Author
George C. Leef

Director of Research, James G. Martin Center for Academic Renewal