Cartel Control of Attorney Licensure and the Public Interest
| Author | Robert C. Fellmeth, Bridget Fogarty Gramme, C. Christopher Hayes |
| Position | Consumer advocate and former state and federal antitrust prosecutor/Administrative Director of the Center for Public Interest Law and adjunct professor at the University of San Diego School of Law/Practicing attorney in San Diego, California. Hayes was Volume 52 Articles Editor of San Diego Law Review and Magister of the Wigmore Inn of the Phi ... |
| Pages | 193-233 |
The purpose of regulating any profession is to assure competent practitioners,
particularly where its absence can cause irreparable harm. Regulatory “licensing”
ideally achieves such assurance, while at the same time avoiding unnecessary supply
constriction. The latter can mean much higher prices and an inadequate number
of practitioners. Regrettably, the universal delegation to attorneys of the power to
regulate themselves has led to a lose/lose system lacking protection from incompetent
practice while also diminishing needed supply. The problem is manifest in four
First, state bars—in combination with the American Bar Association—require
four years of largely irrelevant higher education for law school entry. Most of this
coursework commonly has nothing to do with law.
Second, and related, these seven-years of mandatory higher education (that only the
United States requires for attorney licensure) impose extraordinary costs. Those costs
now reach from $190,000 to $380,000 in tuition and room and board per student—
driven by shocking tuition levels lacking competitive check.
Third, attorney training focuses almost entirely on a few traditional subjects, with little
attention paid to the development of useful skills in most of the 24 disparate areas of
actual practice (e.g., administrative, bankruptcy, corporate, criminal, family, taxation,
et al.). And schools often pay scant attention to legislation, administrative proceedings,
or the distinct areas of law that will be relevant to a student’s future practice.
© 2019 Robert C. Fellmeth, Bridget Fogarty Gramme, C. Christopher Hayes, published
by Sciendo. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs
3.0 License.
SeeCartels
San Diego
Law Review
8 Br. J. Am. Leg. Studies (2019)
Fourth, state bars rely on supply-constricting bar examinations of questionable
connection to competence assurance. In the largest state of California, the bar
examination fails about 2/3 of its examinees. This system has fostered an opportunistic
cottage industry of increasingly expensive preparatory courses that further raise the
cost of becoming an attorney—even after 7 years of higher education.
a) Do not treat negligent acts as a normal basis for discipline (outside of extreme
incapacity);
for negligence;
c) Do not allow clients injured by malpractice to recover from “client security
funds”;
d) Do not require post-licensure “legal education” in the area of an attorney’s
practice;
e) Do not test attorneys in the area of practice relied upon by consumers—ever;
and
them in favor of total reliance on often unavailable/expensive counsel.
No area of state regulation has more openly violated federal antitrust law than has
the legal profession. The United States Supreme Court held in 2015 that any state
body controlled by “active market participants” in a profession regulated is not a
sovereign entity for antitrust purposes without “active state supervision.” Yet four
years later, attorneys continue to regulate themselves without such supervision,
overlooking the threat of criminal felony and civil treble damage liability.
Consumer Protection; Antitrust; Attorney Regulation; Legal Education; Student
Debt
194
195
To continue reading
Request your trial