Face the Facts: Law is Business
 

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).

   

2001 The Federalist Society