Walter Olson on Careful What You Unleash

totmauthor —  19 September 2011

As a libertarian, I mostly concur in the critique of occupational licensure made famous by (among others) Milton Friedman. For the most part, licensure is a consumer-unfriendly affair that protects incumbent practitioners from competition, locks out promising new methods of service provision, and interferes with voluntary dealings between professional and client. It is dubious enough as applied to occupational groups such as doctors and plumbers, and downright ridiculous (as the Institute for Justice keeps reminding us) as applied to groups like cosmetologists, florists and interior designers.

But lawyers are different. No, seriously — they are. Most other professional groups deal with a clientele that, even if unsophisticated, is at least participating voluntarily and exercising a choice of providers. This is true of lawyers as well for the majority of the services they provide — advising on the state of the law, drafting contracts, negotiating business deals, devising estate plans. But lawyers also are given a litigator’s hunting license to initiate compulsory civil process against unwilling (often wholly innocent) opponents and third parties, and deregulating that power is a good bit more problematic.

The coercive powers wielded by private lawyers are more akin to the powers wielded by prosecutors and other government officials than to the powers wielded by, say, optometrists or dentists. They include the power not only to initiate a lawsuit — something that, even if disposed of at an early stage, can inflict hundreds of thousands of dollars of financial cost (plus reputational damage and distraction) on an adversary — but also the power to pursue discovery under our remarkably broad American rules, an extraordinarily coercive and invasive process by which opponents are compelled to hand over private emails, memos and doodles for hostile scrutiny, attend and endure hostile depositions in person, undertake vast file searches at an unreimbursed cost that can exceed the value in controversy in the suit, and more. I am not convinced that deregulating the power to commence this sort of civil process and demand money from an opponent for calling it off — in effect, to widen the existing pro se exemption so as to allow anyone to proceed pro se on behalf of anyone else they can get to sign up — would reduce the amount of unjustified legal aggression in a system that already has plenty of it and to spare.

It will not do to say that abuse of the power to litigate can be sorted out after the fact as it allegedly was in the cases of Scruggs and Lerach, years after the ethical lapses began. Much experience suggests that sanctions, disbarments, countersuits and prosecutions are typically belated and spotty as it is (for many examples, check my website Overlawyered). True, abusive lawyering would be far better checked if we had loser-pays, a strong Rule 11, serious constraints on the use of discovery for cost infliction, and so forth. But we don’t — and the Law Lobby will not let us win those remedies any time soon.

The way forward might be to split the tasks of a lawyer in two, moving to deregulate the advisory and document-preparation functions (which could indeed be a way of saving consumers large sums) while continuing to apply appropriate scrutiny to those in the profession who presume to wield coercive litigation powers. Although the British separation of highly regulated barristers from less highly regulated solicitors does not precisely track this distinction, it is worth keeping in mind as a possible model for a division between an “outer” legal profession whose operation might be entrusted to general business principles and an “inner” group of professionals of whom more is expected, as we expect more ethically and legally from judges themselves, public prosecutors, and others cloaked in public authority.

11 responses to Walter Olson on Careful What You Unleash

  1. 

    That the judiciary regulates the practice of law is an abomination. A society can hardly be considered free where an agency of the state decides who can challenge its edicts or redress its wrongs.

    In the United States, no grant of power was given to the judicial branch to regulate the practice of law. Obviously, there is no textual support for the proposition that the judiciary has the power to decide who, and under what circumstances, can ply the legal trade.

    Given that one has not specifically surrendered his natural and inalienable right to engage in whatever trade one so chooses, including the law, the state’s regulatory scheme governing lawyers is a repugnant affront to all of the rights one has retained.

    Thus, all state licensing laws and regulations and rules of professional conduct are flagrant, per se, violations of one’s ninth amendment right to engage in any tfade one so chooses. The text of the ninth amendment does not admit of any exceptions; nor does the plain meaning of the amendment lend itself to having any such rights asserted to be protected by the same to being subject to “balancing tests” as against some governmental or public interest.

    Had the framers and the ratifiers intended to confer the power upon the judiciary to regulate the practice of law, they would have so said. Had they intended to limit the sweep of the ninth amendment by subjecting its alleged protection of a specified right to a balancing test as against a state interest, they would have so said. They did not so say.

    It has been under the stewarship and watch of the judiciary that the legal profession has flourished. That Mr. Olson thinks we need more of that or even a continuation of the same, is cognitive dissonance for one so dedicated to the cause of tort reform.

  2. 

    The post’s point that trial lawyers are agents of the state is good, but there is a more mundane point that parallels it. Lawyers help court proceedings run smoothly. If the lawyer does not know what he is doing, then the judge has a lot more work to do, and everybody— including jurors, bailiffs, and the other side’s lawyers— has to wait around more while the mistakes of the incompetent lawyer get sorted out. We tolerate that for pro se, but that’s why there’s a case even now for raising bar entry standards.

    Just do it with a tougher and cheaper exam rather than requiring 5 years of law school instead of 3.

  3. 

    On discovery: the problem is the judges, isn’t it? I don’t know procedure well, but if a party is asked to produce something unnecessary, he can’t be forced without an order from the judge.

  4. 

    Good post. Walter Sobchak noted that anyone can initiate compulsory process and loser pays might be a better deterrent to harassment, and Bob Crandall also noted that we don’t currently have a good deterrent. Both are good points, tho they don’t respond to the argument that with our current lenient judges it woudl be dangerous to expand the number of people who can run lawsuits.

    One good thing about the current system is that a lawyer can be disbarred, even tho not enough of them are. His valuable law license acts like a bond he has posted, so he is somewhat cautious, or, if not, he’ll be disbarred and exit the system.

    We could, however, require anyone who acts as a trial lawyer to post a bond first, or, in my fantasy world of efficiency and justice, to put himself at risk of jail time as an alternative to a bond. This is like loser pays, but better since it’s hard ot collect and since a judgement-proof front person could be used.

  5. 

    I fail to see how the current system of occupational licensure of lawyers limits the abuses that Waler Olson addresses. Surely, three years of law school and passing a bar exam does not weed out those inclined to exercise “coercive litigation powers,” to use Olson’s language. How wolud opening the legal profession to entry exacerbate this problem?

  6. 

    “But lawyers also are given a litigator’s hunting license to initiate compulsory civil process against unwilling (often wholly innocent) opponents and third parties, and deregulating that power is a good bit more problematic.”

    Anyone can pursue a lawsuit pro se and use it as a vehicle for extortion. The Ohio Supreme Court dinged one such guy last week. Rhodes v. New Philadelphia 2011-Ohio-3279. What we need is looser pays.

  7. 

    A bifurcated system makes a great deal of sense on separation of powers grounds as well. Until around the 1930s, bar membership was required primarily to represent someone in court. At that time, it was more reasonable for the legal profession to be regulated by the judiciary rather than the legislature, as lawyers’ primary function was within the court system. Now, however, far more law is transactional. Yet, we still exclude the legislature from regulating the legal profession on the grounds that lawyering is properly within the sphere of the judiciary. Separating professionals who operate primarily in the courtroom from those who engage exclusively in transactional work could permit better regulation of lawyer conduct while maintaining the separation of powers doctrine.

    Of course, there are areas that litigators and their clients confront, such as billing issues, that are economic in nature, rather than judicial. For those issues, status as an “officer of the court” should not exclude lawyers from generally applicable consumer fraud law, as it does in many states. However, bifurcating the profession would go a long way towards making lawyers more accountable to their clients. It would also lead the way to allowing competent non-lawyers to provide transactional services, as the “outer” group would have less need for the regulatory barriers to entry that may be maintained by the “inner” group.

  8. 

    Very interesting observations.

    Fred Carr, the noted general counsel of FMC Technologies, a major consumer of legal services, has long taken the position that legal services are divided into four buckets: counseling, advocacy, process and content. (See, for example, http://kowalskiandassociatesblog.com/2011/09/14/the-clock-is-ticking-in-five-years-traditional-law-firms-may-be-extinct-what-are-you-doing-to-avoid-being-an-artifact/ ).

    Olson apparrently takes the position that the only place where regulation might be appropriate would be in the advocacy bucket. Perhaps, the better expression of this view would be the system long in existence in the UK, under which two classes of lawyers practice their craft, solicitors and barristers, with only the latter subject to licensure and extended training and rigorous apprenticeships as a condition for admission to practice as a barrister.

    But will that, together with loser pays requirements, solve any problems? A deep pocket litigant, with a claim or defense lacking in merit, will still have a substantial advantage over a less moneyed adversary.

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