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LAWBIZ COACHES CORNER: Web may be key to cracking ‘monopoly’ of law

Ed Poll

The Brookings Institution is one of the premier think tanks in Washington, D.C. Clifford Winston, a senior analyst at Brookings, recently expounded on a truly subversive thought: By requiring lawyers to have a law degree and pass the bar exam, the profession seeks to restrict the supply of new lawyers and thus perpetuates a monopoly.

Calling the requirements “barriers to entry,” Winston wrote that, rather than improving the quality of legal practice, the prerequisites of graduating from an accredited law school and passing the bar “exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance.”

He advocated allowing individuals to take online courses or attend vocational schools to do “simple” tasks like wills at far lower costs than lawyers now charge.

Longtime readers of this column should not be surprised that I believe Winston has a point, though he likely overstates it. The law is a professional service that is also a business. Doing business with prospective users of legal services should be restricted only by truth, fairness and honesty. The problem is not that lawyers are too few and are too expensive, it is that they cannot truly compete for clients in a businesslike way.

Unfortunately, attorneys still risk bar association discipline for using traditional marketing tactics. The rules of professional conduct are replete with restrictions on marketing, advertising, solicitation, the use of social media and more.

It is one thing to regulate for truth and fairness in promotional statements and to restrict hyperbole so as not to create false expectations. It is another thing to dictate how the communication can be framed.

Bar associations seek to regulate lawyers in ways that other governing bodies do not, would not and could not regulate (as with doctors, accountants or plumbers). The losers are small firms and sole practitioners — and those clients who would benefit from learning about them.

So far as the ultimate concern of the client and legal ethics, the quality of legal service, and not the degree of salesmanship and promotion, should be what is important.

The Internet has been the great marketing equalizer, allowing small firms to educate consumers about their services just as effectively as large firms do. Yet, state bars still seek to restrict them.

For example, the Virginia State Bar recently charged a lawyer with professional misconduct for discussing his completed cases on his blog without adding an advertising disclaimer stating that results depend upon factors unique to each matter and that results in one case do not predict similar results in others.

The Internet marketing efforts of small-firm practitioners are typically designed to generate awareness and to get potential clients to initiate contact, leveling the playing field among all firms. Potential clients can decide whether the firm’s skills are a match and make decisions as educated buyers.

If an Internet presence is advertising, it also furthers the process of educating the public about which lawyers can best help them, what they do, and how to reach them. That process — not eliminating law degrees and bar exams — is the path to more affordable legal services.

Ed Poll J.D., M.B.A., CMC is the principal of LawBiz Management, a national law firm practice management consultancy based in Venice, California. For more information, visit his Web site www.LawBiz.com or email him at EdPoll@LawBiz.com.

4 comments

  1. Philip M. Kober, JD, MD, PhD

    I cannot think of anything more idiotic. This is the equivalent of saying that we should allow any Tom, Dick, or Harry practice medicine even though they do not have an M.D. or D.O. degree and have not passed a licensing exam. Most wills are not mere formal documents that can be filled out by anyone who can write. Paralegals can and do some simple tasks with regard to preparation of documents, but the practice of law is much more than that. One of the troubles these days is the internet makes too many people think they are instant experts in fields like law and medicine when nothing could be further than the truth. These professions are restricted to people with the requisite training and experience with good reason and Ed Poll quite simply does not know what he is talking about!

  2. Kevin Scheunemann

    Mr. Kober,

    Your comment comes off as elitist.

    Many people cannot afford lawyers, especially in the civil arena. The Wisconsin Bar Association has been pathetic addressing this issue of those who cannot afford civil representation.

    Jealously guarding the the bar cuts off reasonable court access for the poor and middle class.

    If we want a court system that only protects the interests of the wealthy, that is certainly what we have today.

    The monopoly rates of bar lawyers need to be broken to provide reasonable access to court to all.

    Kudos to Ed Poll for saying this. This took a lot of guts, given how some jealously protect $500/hour lawyer rates.

  3. I respectfully completely disagree with Kevin Scheunemann when he says the State Bar is “pathetic” in addressing the issue of civil lawyers for poor people. The State Bar has done a great deal in this area – more than any other organization in the State of Wisconsin. For example, the bar conducted an extensive survey – called “Bridging the Gap.” It was used by Governor Doyle to appropriate millions of dollars to WisTAF which then gave the money to low-income legal service providers. Gov. Walker eliminated that funding. Moreover, the bar has been behind many efforts to find lawyers for poor people at the Wisconsin Supreme Court and other places. The bar also has a “Modest means” program to link people with limited means to lawyers willing to take a reduced fee.

    $500/hour? Who outside a few lawyers at few giant law firms makes that much? My guess is $200/hour is an average rate in Wisconsin and it may be less.

    A good question is this, if people are entitled to free lawyers for civil cases, are they also entitled to free rent, food, gas and medical care? It’s easy to talk about giving away other people’s money. There is no “free.” Somebody has to pay for it.

  4. Kevin Scheunemann

    Nick,

    I completely agree with you on sense of entitlement.

    However, the unmet civil legal need is so great… free, or even subsidized, legal service is not going to fix it.

    There needs to be a representative/specialized advocate that someone can hire for $40-$50 and hour that can be certified by online courses or training vs, the tremendous expense and limited admission of law school.

    The State bar has paid lip service to the problem and done little to fix it. Again, even if the civil program you describe had not been cut by the current budget, it was just a “feel good” thing and not a real fix.

    The State Bar will not embrace this solution because it jealously guards itself to the severe detriment of the poor and middle class, especially in the area of consumer law. I’m still shocked this article got published!

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