The BAR system is corrupt. There, someone said it. Yes, it creates a monopoly on legal representation and prohibits equal access under law. The general theory of the BAR system for legal representation is that having to pass a standardized test to prove competence for legal representation in court helps assure that clients are represented with adequate legal assistance. The truth of the matter, though, is that there are quite a few terrible lawyers out there that have apparently somehow passed the BAR, yet leave all around them shaking their heads as to how they could possibly practice law.
On the other side, the BAR prohibits anyone from helping friends or family members with legal matters in court, no matter how extensive their knowledge of the subject, simply because they don’t have a piece of paper from the BAR. That is what we call a state sponsored monopoly. On the one hand it is certainly protectionism for law schools, but on the other it creates a great divide between those who can pay for good legal representation, and those who cannot pay for any.
Further, it leaves no room for the interposition on their behalf of any individual who may not care to invest the time, expense, or energy in passing the BAR, but who knows the law in that specific area just as well if not better than a lawyer who is expected to have a general knowledge of the law in all areas. Not even paralegals – who many times know the law better than the lawyers they work for – are allowed to even volunteer to help a friend or family member. That individual must either pay out of pocket for representation, or attempt to represent himself in an intimidating situation, on subject matter they may not necessarily understand, with rules they may not fully grasp.
What would be the harm of allowing individuals to represent others in the court of law without passing the BAR? The BAR does not currently prevent bad, or even terrible, lawyering. It merely makes them officially sanctioned by the state to charge a premium for that bad lawyering because they are protected from competition by a state enforced monopoly. Is the market incapable of providing a solution to that problem? No!
People naturally have an incentive to find good legal representation. The BAR merely preserves the inherent premium that law schools can charge, with no guaranteed result of the end standard. Further, what good is the law if the common man cannot understand it or adequately defend himself?
If the problem is that the law is so complex as to require special training, then perhaps the law is too complex – either unintentionally or otherwise – as to be beneficial to the society it is supposed to apply to. If the problem is that the common man is not looked on as capable of adequately defending himself, or others, then perhaps those adjudicating it need to re-evaluate their role in light of the proper purpose of the law, which is to preserve the rights of the individual. The rights of individuals, of course, must be presumed to include the right to defend themselves, or others if asked, in front of a court of their peers.
If the issue is competence, then certainly the current status quo does not achieve it, as evidenced by the myriad stupid things lawyers say on a daily basis in the courtroom; and it should be abolished in favor of a standard that does allow equal access to justice under the law, and includes competition in the marketplace for legal representation, unhindered by state sponsored monopolies like the BAR. This is a simple free market concept. An individual will find the best product or service and the price they can best afford.
Last, the idea that disbarring an individual has any effect on them is quite outdated. Disbarred individuals are often quite successful afterwards despite their clearly flawed ethical and moral standards, and many ethically and morally challenged individuals should be disbarred but aren’t.
In short, no regulatory board will correct moral or ethical issues in an individual, and the notion that it will is simply flawed. Granted, it’s much easier to subscribe to the idea that a regulatory board will fix those issues when there is a substantial protectionist economic incentive for those making that decision. Unfortunately for those who will be affected the most by it, they have neither the means nor the inclination to contribute to such an economic incentive, and so the case remains that they are only able to purchase as much justice as they can afford at artificially inflated prices.
Image: Caricature of Mr John George Witt QC. Caption read “A Sporting Lawyer”; source: published in Vanity Fair, 17 March 1898; downloaded from http://www.antiquemapsandprints.com/scansj/j-20474.jpg; author: Leslie Ward (1851–1922); public domain