America faces a shortage of lawyers, due in part to high barriers to entry and a monolithic definition of legal practice. The consequences are well documented in legal scholarship. Attorney scarcity increases the cost of professional services, making it difficult for the neediest of clients – rural poor, indigent defendants, accident victims, children, older adults, and immigrants among them – to secure representation. Despite this commonly acknowledged issue of access, state bars have done little to reform licensure.
The problem, according to licensing expert Rebecca Haw Allensworth, is not just a matter of over-regulation. In her paper “The Hypocrisy of Attorney Licensing,” the Vanderbilt Law Professor explores how barriers to entry, along with a lenient disciplinary regime, steer the most unethical and incompetent lawyers to the clients in greatest need.
“As strict as state bars are when it comes to entry requirements and ethics rules, they are lax when it comes to professional discipline,” she writes. “The system puts public protection in the back seat.”
High Barriers to Entry
Licensing regimes argue that rigorous bar exams and restrictive practice rules ensure that lawyers are qualified and act in their clients’ interest. They also protect lawyers from competition and enhance the perceived value of the profession, Allensworth contends.
She also notes that, as some critics of the attorney licensing system have argued, “attorney self-regulation has resulted in a balance of regulation that can only be justified as protecting the public if we define the public as those with financial means.” High barriers to entry drive up the cost of legal services, making it difficult for people with fewer resources to afford them.
Disciplinary Shortcomings
While regulators have the capacity to protect the public from incompetent and unethical lawyers, Allensworth argues that the process fails to work as intended, for several reasons.
The disciplinary system relies entirely on complaints from clients, who may not recognize malpractice, overlook transgressions when they benefit their case, or be unwilling to confront a system that Allensworth describes as “elite, hierarchical, and inherently litigious.” Some authorities fail to make the process transparent; others warn that complainants may be sued. As a result, she contends that the number of recorded complaints likely understates the number of problematic lawyers and depth of misconduct.
Moreover, complaints that do get filed rarely result in disciplinary action (roughly 3%), which can take years to accomplish, due in part to “extraordinary legal protections that lawyers have built for themselves into the disciplinary process,” Allensworth writes.
Lastly, she reviews studies that uncover a system that exercises lax enforcement and favors “second chances,” even for attorneys who have stolen money or coerced sex from clients.
“Adding it up, scholars of the profession are essentially unanimous in finding the self-regulatory legal disciplinary system lacking,” she writes. “It does not detect or punish most
wrongdoing at all, and when it does act, it is too little, too late. The system is set up to re-admit dangerous, unethical, and incompetent providers in the profession – the likes of which would probably never clear the bar for admission in the first place.”
Why Disciplined Lawyers End up Serving the Most Needful
Allensworth notes that disciplined lawyers gravitate to solo or small firm practice. Citing research from Northwestern Law School Professor Kyle Rozema, she points out that disciplined lawyers at large- and mid-sized firms leave their firms at significantly higher rates than their non-disciplined peers, and that many will go on to start solo firms. This supports existing data which shows higher rates of discipline among solo and small-firm practitioners versus large firms.
Solo practitioners, Allensworth notes, gravitate to areas of “great unmet demand” to maintain their practices. These areas, which include family law, personal injury, workers compensation, and immigration law, often involve lower-income, one-time clients with limited exposure to the law. Compounding the issue, court-appointed attorneys are likely drawn disproportionally from solo and small-firm practice, due to low reimbursement rates.
Why it Matters
The consequences of this system are dangerous for clients and society at large, Professor Allensworth contends. It generates opportunities for sexually abusive attorneys to take advantage of vulnerable clients with limited power and a lot to lose. Attorneys performing low-paying work for low-income clients or as a court-appointed lawyer are motivated to run “settlement mills” – high-case volume operations that involve limited investigation and client interaction. Lastly, problematic lawyers in solo or small-firm practices lack the supervision, accountability, and mentoring provided at larger firms.
“It is true that any market will feature a sorting mechanism by which the most desirable providers go to the highest-paying clients…[but] [p]rofessional licensure is supposed to blunt these forces of capitalism by creating a floor below which providers cannot pass, to assure any client, low-income or otherwise, that their lawyer meets a minimum standard,” she writes. “Incompetent lawyers can create significant harm.”
Proposals for Reform
Professor Allensworth’s recommendations fall into two distinct categories:
- A clearer definition of what it means to practice law, one that allows non-licensed advisors and professionals such as social workers, accountants, paralegals, clerks, and administrative assistants to “walk up to the line of legal practice without fear of bar sanction or criminal prosecution
- An overhauled disciplinary system that can be counted on to remove bad actors, with rules and guidelines that states adhere to. This includes stricter rules around inappropriate sexual behavior with clients, as well as stronger punishments for misappropriate of funds and client neglect. Complainants should be immune from suit, and greater transparency should be baked into the system.
Most importantly, she argues that cases should be decided by panels that are not “dominated by lawyers – other professionals and members of the community should have a say in defining competence and ethicality in the provision of legal services.”
“Only once we are prepared to be held accountable to someone other than another lawyer will we confront the fact that the legal licensing system is designed not to meet the country’s overall demand for legal services but to meet the needs of the elite, and, above all else, the needs of the profession itself.”