Is lawyer licensing really necessary?

Brian Woods sued the Akron school board to get an education for his autistic son. He won, his relief including about $160,000.

So what’s the problem? He didn’t have a lawyer. So as discussed in today’s NYT, the Cleveland Bar Association sued Mr. Woods, seeking a $10,000 fine and other relief. The Ohio Supreme Court indicated its skepticism, and the bar association backed down. The US Supreme Court may get the issue of whether non-lawyer parents can represent their children under the Individuals With Disabilities Education Act. The Cleveland Bar may resume its action after the Supreme Court acts on this issue.

Is something wrong with this picture?

As I have discussed here, and in Lawyers’ Property Rights in State Law (published as Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004)) there is scant justification for lawyer licensing laws. My limited defense of licensing is based on encouraging lawyers to participate in lawmaking. My theory would sharply reduce the scope of licensing requirements.

I am beginning to wonder whether it's worth preserving any piece of lawyers’ monopoly on legal representation. Cases like the one the NYT discusses make me wonder more. Clearly there was no client-protection justification. Since Mr. Woods could have acted as his own lawyer, and for his son in finding a lawyer, there's obviously no reason not to let him decide to dispense with the lawyer rather than paying the huge fee a lawyer would have asked or having to drop the case.

One might argue that we need licensing laws to preserve order in the court -- that is, ensure only those inculcated with lawyer knowledge and norms enter the courtroom. But we already let non-lawyers represent themselves. How much do we gain from keeping dads out of court.

Now let's take this further. If people can decide to bring cases on behalf themselves or their children, to make myriad other legal judgments without lawyers, to choose among the wide variety of licensed lawyers about whom all the licensing requirement tells us is that they passed a bar exam sometime in the distant past and spent three years in a law school, perhaps taking courses on the law of the horse or whatever, and to make the zillions of other decisions adults make about their lives, why should we not let people decide to be represented by somebody who is not certified as a lawyer?

Note that I said “certified” – nothing would prevent bar groups from providing the service of certifying people to practice law, or aspects of law, should these people want to do so.  Then non-"lawers could decide whether they want to be represented by one of these folks.

Just asking. 

Comments

[Peter Nordberg]

Over twenty years ago, I published a law review comment arguing that licensure violated the First Amendment right to petition, and noting that a certification regime would pose a less restrictive alternative. I remain stunned that the idea never took off. See Comment, The Petition Clause and Unauthorized Practice Rules, 132 U. Pa. L. Rev. 1515 (1984).

[ADR]

At the very least, licensing lawyers at the STATE level makes absolutely no sense, and it may make no sense on any level.

[Jack Marshall]

I have no problem with a father as a vicarious pro se. But licensing allows the term "lawyer" to have meaning, and to ensure a minimal level of competence and ethical conduct. Pro Se litigants take up time and resources, clog the system and confuse the courts, but we're stuck with them. Self-certified lawyers? What an opportunity for scam artists, frauds and crooks! It would lower the quality of legal services across the board, erode legal ethics,encourage frivolous lawsuits and ultimately harm the ability of citizens to have access to the law.
I can't imagine a worse idea...maybe self-certified surgeons. Okay, self-certified airline pilots. But not MUCH worse.

[Billy]

The problem with having non-licensed lawyers is certainly not that of having articulate family members represent someone, it is rather, having someone who has been disbarred for unethical practices, or someone who couldn't pass the bar in the first place, advertise their services, while being able to by-pass all ethical rules that the profession imposes on itself. I suppose that since I believe in a free market, such people should be able to represent people as long as their non-certified status is made clear, and a strong caveat emptor is also made clear. I am a licensed lawyer, btw.

[vnjagvet]

Pro se rules should extend to one's family and dependants, in my judgment. The Ohio case is, and should be, a PR nightmare for the Ohio Bar.

Guild-protective laws are self-defeating.

[Wesley Smith]

The Bar Associations control who can play attorney, and thus control what arguments can/will be made in court. Right now I can't hire an attorney that will point out that the argument my opponent makes in unconstituional. Why? Because it goes against the Bar Associations political agenda and they will take away the license of any attorney who opposes them. In Virginia an attorney is MUCH more likely to be disbarred for being ethical rather than unethical. Licensing by the Bar Association, means the Bar Association is the real client, and the paying "client" gets only secondary representation.

If licensing was to ensure qualified attorney's, why do attorney's still make errors that many non-attorneys won't, and when an attorney makes a mistake why is the paying "client" punished instead of the attorney?

Take this case for example where the woman was denied an appeal due to her attorney having his license suspended (and unaware it was suspended). If the Bar Association was really ensuring qualified attorneys it would punish only the attorney not the paying "client".
http://www.courts.state.va.us/opinions/opncavwp/2426054.pdf

Given that judges and attorney's are members of the same union "Bar Association" licensing also supports and encourages a conflict of interest.

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Liam's Dad - Wesley Smith
http://www.liamsdad.org
liamsdad@liamsdad.org

Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.
- Patrick Henry