Russell G. Pearce*
What's the most effective way to improve the reputation of lawyers,
increase respect for the legal system, and make access to justice
more equal? Declare that law is a business and end lawyers' monopoly
on the practice of law.
To many lawyers, this approach would be heresy. They believe professions
and professionals are superior to businesses and business people.
Professions are allowed to regulate themselves, while businesses
are not. The justification for self-regulation is that professions,
unlike businesses, possess specialized expertise and that professionals
seek the public good while business persons seek to maximize profits.
But continued reliance on this ideology of professionalism only
perpetuates the bar's current crisis. Clients, whether businesses
or individuals, resent being told that they are unable to understand
and evaluate legal services and are seeking greater control of their
lawyers. Members of the public, and some lawyers, see the profession
as maximizing its own profits at the expense of society as a whole.
To be fair, there are leaders of the legal profession who frankly
acknowledge that it faces a crisis. They describe lawyers and their
ethics as "lost," "betrayed," "in decline"
and "near death." They try to address these problems through
exhortation, creation of professionalism commissions or schools,
and by urging the increased provision of pro bono services.
But these efforts have accomplished little to date and offer scant
promise for success in the future. As long as many members of the
bar and the public believe lawyers are largely concerned with financial
self-interest, appeals to a professionalism grounded in a distinction
between a business and a profession will be unpersuasive.
Moreover, such efforts will only sink the profession deeper into
crisis. To lawyers and laypeople who believe lawyers are indeed
self-interested, proponents of lawyer professionalism appear to
be hypocrites who preach one thing and practice another, cynics
who spout an ideology in which they do not believe, or naive fools
who believe what everyone else knows to be untrue.
The answer to the current crisis comes from a different direction.
Lawyers should embrace the business aspect of their work. Like other
businesses, law practice should be subject to regulation by the
market and the government, not by the producers of the services
themselves.
Acknowledging what most lawyers and members of the public know
would remove at least one layer of cynicism about lawyers and the
legal system. But it would leave open a variety of possible options
for implementation.
At the extreme, the organized bar could dissolve itself and law
schools go out of business. A more likely option, however, would
abolish the restrictions on unauthorized practice, while maintaining
the existing institutional arrangements, such as bar associations
and law schools. While anyone could practice law, the bar could
certify "lawyers." If those certified as lawyers behave
ethically and provide high quality services, they will earn success
in the market for legal services. Moreover, the increased total
number of legal services providers will function as in other markets
to decrease prices and improve quality.
Where the market proves unable to protect consumers, the government
will intervene with regulation.
The resulting improvement in the quality of legal services and
the decrease in their costs offers significant advantages over the
bar's current ineffectual efforts to police lawyer conduct and increase
access to legal services for low and middle income people.
In addition, the frank acknowledgement of our self-interest offers
the hope of developing a consensus on how legal services providers
can best advance the public good, given that our livelihood is so
closely tied to the delivery of justice. This would contrast sharply
with the current efforts to promote professionalism, which so often
meet with ridicule and disbelief.
In the end, the so-called decline of law from a profession to a
business is not a problem. Rather, it is an opportunity to take
a dramatic step to improve the delivery of legal services and make
our legal system more just.
*Professor Pearce is an associate professor of law at Fordham University
School of Law in New York. This piece appeared in the November 1996
issue of National Law Journal. Professor Pearce also is the author
of "The Professionalism Paradigm Shift: Why Discarding Professional
Ideology will Improve the Conduct and Reputation of the Bar,"
70 N.Y.U. L. Rev. 1229 (1995).
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