Welcome to Carolina Journal Online’s Friday Interview. Today Carolina Journal Radio’s Donna Martinez interviews George Leef, director of the Pope Center for Higher Education Policy, who gives us a look into the regulation of the legal profession. George holds a law degree and he writes fairly frequently about the topic. The interview aired on Carolina Journal Radio (click here to find the station near you).
Martinez: Some legal work isn’t really tough, it seems to me, but it might be time consuming. So, why is it that I could file forms for myself, but I can’t do so for a friend?
Leef: That is because the legal profession in every state has succeeded in protecting its turf, I think is the best way to put it, with what are called “unauthorized practice of law statutes” that make it illegal for someone who is not a licensed member of the bar of that state — no matter how confident the person might be or mundane the work may be, how easy or simple it may be — to perform what is called a legal service, which is a very indefinable open-ended term for someone else.
Martinez: It sounds like this is, basically, a way to screen out competition.
Leef: That’s basically what it is. That’s the history of it. It was originally designed as a way of keeping out non-lawyers so lawyers could have more billable hours.
Martinez: We see that in other professions and trades, where you have licensing requirements that essentially end up screening out additional people coming into the industry, and it’s a protectionist-type behavior.
Leef: This is exactly the same thing.
Martinez: So what happens then, George, if for example, you have someone who maybe has a lower-income household, they need a legal service, they don’t feel comfortable doing it for themselves, but they also feel they can’t afford a licensed attorney. What happens to that group of people?
Leef: Those people have it tough. In fact, a book I recently reviewed, entitled Access to Justice, by Stanford University law professor Deborah Rhode, deals with the serious problem of access to justice for lower-income people. It might be that they can’t afford help with a landlord-tenant problem, or maybe they’re facing criminal charges. But unfortunately, the poor people in the United States either have to do without it [legal help] completely, or do with very incompetent legal representation.
Martinez: Now law firms, as I understand it, also require a lot of their attorneys to do what is called pro bono work — essentially to help people who can’t afford to hire them and pay a fee. It seems kind of crazy to me, frankly, that firms would be requiring that type of work, when really, if more people were allowed into the profession, or people were [allowed] to help one another, isn’t that really a better answer?
Leef: Well, yes, in fact, it is. Professor Rhode, in her book, pins a lot of her hopes for the solution to the problem on increasing the amount of pro bono work that attorneys do. I think that’s a dead-end solution, however. What pro bono amounts to is conscripting the time of attorneys, almost all of whom would prefer to be doing something else — billable hours.
Martinez: Exactly.
Leef: And it almost always entails having lawyers out of their own field of specialization. A lawyer who specializes in intellectual property is not going to be able to do much of anything for a low-income person, and since he doesn’t really have the expertise, he’s more prone to make mistakes. And since he’s not being paid, he has much less interest in making sure that he dots all the legal i’s and crosses all the legal t’s. So I think looking to pro bono work is just a dead end.
Martinez: And really, isn’t it correct that you don’t believe an attorney should be required to do pro bono work in the first place?
Leef: I don’t think there should be a free standing legal obligation — just because you’re a member of the bar, you have to do so many hours of legal work. Now, if you enter into a contract with a law firm, the law firm might say, “As part of working here, you’ll be expected to put in so many hours of pro bono work.”
Martinez: Or if someone wants to volunteer their time.
Leef: Or if you want to volunteer. But my point is, that looking to volunteers or conscripted time from attorneys is not going to solve the problem that large numbers of low-income people have.
Martinez: Let’s talk about actually getting into the legal profession in the first place. It seems to be pretty darn tough, and you have written a number of pieces about this. What is going on? Why is it so tough to become an attorney?
Leef: Well, it’s a large barrier-to-entry the legal profession has established. In order to become a licensed attorney, first of all, you have to get an undergraduate degree.
Martinez: You do?
Leef: Four years. To get into almost any law school, you have to first of all have an undergraduate degree. Then, on top of those four or more years of study, going to law school is set up so that it almost inevitably must be at least two and a half to three years — it can sometimes be done in two and a half years. Most students spend three years to get the credits they need. Now, many of those credits are going to be in subjects they’ll never deal with again; but it adds a lot of time and cost to the preparation. Then once they’ve graduated from law school, they can take the state bar exam, which entails memorizing an awful lot of stuff — again, 99 percent of which they can promptly forget. And once they’ve done all that, then they can go into practice, either for themselves, or more likely, are hired in some firm where they’ll get a specialization and start learning what they really need to know.
Martinez: So essentially, learning on the job is where you think the true learning actually takes place.
Leef: That’s where the true learning really takes place; all of the previous stuff is a very expensive prelude.
Martinez: So let’s just say that I’m a prodigy, and I go to the internet, and I go to some libraries, and I figure that I am prepared to take the bar exam. I don’t have an undergraduate degree, I haven’t been to law school. I can’t take a bar exam?
Leef: In most states, no. Only a few states allow people to take the bar exam just on the basis of their own study.
Martinez: So what happens, then, is that people go to school, they get their undergraduate [degree], they go to law school, and once they actually do become a licensed attorney, they’re sitting with a ton of loans to pay back for this whole process.
Leef: Yes. And that helps explain why they don’t want to take cases and deal with clients who don’t have a lot of money to spend.
Martinez: Because they’re looking at billable hours — making their living and paying back their loans.
Leef: Yes, that’s exactly it.
Martinez: Well, George, what’s the solution to this?
Leef: I think the solution is to allow for a free market to work in the area of legal representation services. And to do that, what we have to do is tear down the barriers to entry. I don’t even favor the idea of mandatory licensed practice of law. I think we can allow competition to ferret out those who are incompetent. In fact, those who are not competent aren’t going to go into the field in the first place. One of the easiest ways to get yourself used and in trouble these days is to try something you’re not capable of doing. And then people could get into the legal field without the tremendous investment in education and cost that entails. And there’d be more people willing to serve low-income people.