The Flood of U.S. Lawyers: Natural Fluctuation or Professional Climate Change?

This paper considers how US courts, which regulate the US legal profession, should respond to the perceived excess of lawyers (i.e. to the lack of adequate employment opportunities for lawyers). It begins by summarizing the courts’ regulatory role. It then situates the contemporary flood-of-lawyers problem in the unavailability of well-paid legal work, not in the absence of a need for lawyers’ services: many people need lawyers, but they cannot afford them. Next, the paper explores whether the problem is simply a product of natural economic fluctuation which will be solved naturally, particularly if potential law school applicants become better informed, and suggests that the problem is at least in part an artificial product of professional regulation. Finally, the paper explores possible regulatory solutions, concluding with the possibility of eliminating lawyers who perform adequate but lowest-quality work. It concludes that using regulatory means of lowering the tide of lawyers is not viable. Many believe that there are too many US lawyers, by which they mean that US lawyers are competing for too few paying clients and too few jobs that require or utilize a law license (Dolin, 2007; Greenbaum, 2010; Tamanaha, 2012). Some unemployed lawyers recently sued the US law schools from which they graduated, blaming the ‘nationwide glut’ of lawyers on law schools’ expansion of admissions while legal employment opportunities decreased (Shaer, 2012). Other possible causes of the perceived overabundance of lawyers include that too many college graduates are attending law school for lack of better career alternatives, out of idealized expectations about their career prospects, or lured by the easy availability of federal loans for tuition (Podgers, 2011; Tamanaha, 2012), and that economic stagnation, technology, and global competition (including outsourcing) have reduced the need for US lawyers among clients who can afford legal services (Henderson & Zahorsky, 2011). Whatever the causes, this situation raises a regulatory question: If there is a flood of US lawyers, can and should courts do anything through their oversight of lawyer INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, 2012 Vol. 19, Nos. 2–3, 193–207, http://dx.doi.org/10.1080/09695958.2013.771122 Address for correspondence: Professor Bruce A. Green JD, Louis Stein Chair, Fordham University School of Law, 140 W. 62nd Street, New York 10023, USA. Email: [email protected] # 2012 Taylor & Francis D ow nl oa de d by [ Fo rd ha m U ni ve rs ity ] at 1 8: 28 1 9 O ct ob er 2 01 5 licensing and discipline to stem the tide? This paper explores this question, concluding with an examination of what most would see as a ‘modest proposal’: that US courts respond to the excess of lawyers by de-licensing the least capable ones. Background: regulation of the US bar – quality and quantity Unlike in many other countries, regulation of the bar in the United States is principally in the hands of state judiciaries. State courts have authority to admit new applicants to practice law, establish standards of professional conduct, and discipline or disbar lawyers who engage in professional misconduct or cease to be competent. Most state courts delegate significant aspects of these responsibilities to professional staff or to volunteer lawyers. The most expensive entry requirements for admission to the US bar are an undergraduate degree and a law degree. Although a handful of states still hold out the possibility of ‘reading for the bar,’ virtually no applicants take advantage of this alternative (Sloan, 2011a). And while law schools may admit applicants without an undergraduate degree, this rarely occurs. Most state judiciaries require graduation from an American Bar Association (ABA)-accredited law school, thereby leaving it to the ABA to determine the length of law school (generally, 3 years for full-time students) and the curricular and other requirements. The cost of a legal education has burgeoned in the past few decades; although the causes are disputed, among those cited have been pressures to provide clinical training, smaller classes, more individualized education, and other expensive forms of curricular and noncurricular assistance in response to accreditation requirements, competition for rankings, and complaints from law firms and clients that law students are inadequately prepared for practice (ABA, 2012b; Bourne, 2012; Tamanaha, 2012; US Government Accountability Office, 2009). After graduating from law school, applicants are required to pass a written bar examination, for which law school typically does not completely prepare them. Bar examinations are administered semiannually. Most states administer standardized written tests generated by the National Conference of Bar Examiners based on federal or nationally consistent law. The tests mainly assess knowledge of the substantive and procedural law and the ability to apply the law to factual scenarios. Some states attempt to test certain lawyering skills as well. Applicants generally devote weeks of study to the examination, purchase a bar review course or written study materials, and pay an examination fee; however, these expenditures of time and money ordinarily pale in comparison to the length and cost of a formal undergraduate and legal education. Most law graduates who sit for the bar examination receive a qualifying score (National Conference of Bar Examiners, 2012) and are then licensed to practice law, but a significant minority of each state’s applicants fail the examination, in which case they may retake it at a later time. Over time, the gap has grown between the abilities of newly admitted lawyers and the necessary skills and knowledge to practice law. But the assumption that graduates’ ill-preparedness is attributable to the deficiency of legal education seems doubtful. The expansion of legal writing, simulation and clinical courses, while running up 194 BRUCE. A. GREEN D ow nl oa de d by [ Fo rd ha m U ni ve rs ity ] at 1 8: 28 1 9 O ct ob er 2 01 5 the cost of a legal education, probably makes graduates better prepared than in the past. The gap nevertheless has expanded because law has become more complex and highly specialized over time (Morgan, 2010) and because there is a lower tolerance for learning at clients’ expense. Once admitted to practice, lawyers have no significant regulatory requirements to maintain their licenses other than to refrain from professional misconduct. States have no postgraduate apprenticeship or articling requirement for new lawyers. Most states require lawyers to pay periodic licensing fees and take a modest number of hours of Continuing Legal Education courses of unproven utility (Grigg, 1998). No state requires lawyers to demonstrate continued competence or proficiency in their areas of concentration as a condition of retaining a law license. As far as I know, no state has ever seriously considered adopting a certification or relicensing requirement. A law license provides relatively exclusive authority to perform the full array of legal work. The legal profession’s monopoly is given legal effect by laws forbidding the “unauthorized practice of law” (UPL; ABA, 2012a). These laws generally prohibit nonlawyers from representing clients in court, giving clients legal advice, or drafting legal documents for clients. A law license in the United States is a general license to hold oneself out as a lawyer and to perform virtually any or all of the work reserved to lawyers. The profession is not formally divided into particular areas of practice, and lawyers may practice in multiple areas or move freely between different practice areas and settings. Although some professional organizations certify lawyers as specialists in certain areas of law, state courts do not require such certifications as a condition of practicing in particularly complex areas. Lawyers are expected, as a matter of self-restraint and the professional duty of competence, to refrain from offering services that they are unequipped to provide. New lawyers may perform relatively simply legal tasks and/or work under supervision or in collaboration with more experienced lawyers while obtaining on-the-job training necessary to perform more demanding work. In theory, and subject to constitutional or other legal restrictions on their authority, the US regulatory process affords courts various opportunities to regulate the size of the bar directly or indirectly. Most directly, courts or the admissions authorities to whom they delegate responsibility might keep numbers down by restricting entry to the profession or by delicensing some number of admitted lawyers. Indirectly, they may limit the number of lawyers by establishing more difficult or expensive eligibility or licensing requirements – e.g. a requirement of even lengthier and more expensive legal education as a prerequisite for admission, or high licensing fees or other onerous requirements to retain a license. Since the late nineteenth century, the requirements for US law practice have evolved, but never expressly with an eye toward limiting the number of lawyers (Jarvis, 1996). The express aim of the court-supervised admission and regulatory processes has been to maintain the quality of the bar, not the quantity of practitioners. Of course, the legal profession’s entry requirements in a given jurisdiction have an impact, to a greater or lesser degree, on the extent of the profession’s monopoly (Abel, 1996). In the United States, the attorney admissions requirements coupled with UPL provisions have the effect of limiting the size of the legal profession. But FLOOD OF LAWYERS IN THE UNITED STATES 195 D ow nl oa de d by [ Fo rd ha m U ni ve rs ity ] at 1 8: 28 1 9 O ct ob er 2 01 5 courts have never acknowledged that a purpose of admissions requirements is to maintain the economic viability of law practice by maintaining an artificial limit on the bar’s size, and the steadily increasing number of lawyers indicates that this is not a substantial unacknowledged motivation. Even if by happenstance, however, regulatory requirements and market forces do establish increasingly significant barriers to entering the legal profession and maintaining a law practice. In the early twentieth century, the legal profession in the United States was viewed as a vehicle for social mobility for lower-income individuals because entry was relatively inexpensive and little capital was required to establish a law practice (Auerbach, 1976). Today, however, it is questionable whether law will remain an affordable path to social mobility other than for those admitted to toptier law schools or who receive scholarships to attend law school (Segal, 2011b). In 2012, many students borrow more than $100,000 to attend private law schools (Tamanaha, 2012). If a student performs reasonably well at one of the most prestigious law schools or exceptionally well at a lower-ranked one, he or she will likely be able to enter a mid-size or large law firm, earn a starting salary in excess of $100,000, and pay down student loans while gaining useful experience and contacts. If not, starting salaries (or fees from clients if an entrepreneurial graduate strikes out on his or her own in a solo or small firm practice) may be too low to make loan repayments feasible. Despite efforts to make the legal profession more accessible, the result may be to make the pool of applicants increasingly less diverse. Is there a flood of lawyers? Are there too many lawyers in the United States? The answer depends on what one means by the question. In the midto late-nineteenth century, the complaint might have been that there was a flood of incompetent and unethical lawyers because of the ease of entry (MacCrate Report, 1992). That is the complaint that prompted the establishment of the ABA and state bars beginning in the 1870s. The establishment of higher barriers to entry in the early twentieth century, while reducing competition, did not guarantee lawyers a livelihood, however. In the 1930s, at least until the New Deal era, even top graduates of top law schools had difficulty landing employment in the law. At a more recent point in history, the complaint about the excess of lawyers reflected a perception not that there was too little available legal work but that there was too much. That we appeared to have so many more lawyers per capita in the United States than in other industrialized countries was said to be symptomatic of an over-regulated, overly litigious society. The complaint about the flood of lawyers became a trope of opponents of environmental, safety, and business regulation and proponents of tort reform, among others. However, the charge that the legal profession is overpopulated has become less prominent in the rhetoric of those who complain that laws and lawsuits are bad for business. Since the recent economic downturn, lawyers and law students in the United States have taken up the charge, albeit with a different meaning. Their complaint is that there is not enough legal work to justify the number of lawyers (Segal, 2011b). 196 BRUCE. A. GREEN D ow nl oa de d by [ Fo rd ha m U ni ve rs ity ] at 1 8: 28 1 9 O ct ob er 2 01 5 At first, one might be skeptical, given the common understanding that there are significant unmet legal needs. The legal profession presumes that those with legal problems are best served by obtaining legal assistance, because it is difficult for individuals to navigate the law and legal processes on their own. Most lowand middle-income individuals with legal problems, such as tenants in eviction proceedings, individuals seeking divorces, and applicants for government benefits, are unrepresented (Rhode, 2000, 2005). This might suggest that there are not too many lawyers but too few. A trio of scholars – Clifford Wilson, Robert Crandall, and Vikram Maheshri – recently made this argument (Winston & Crandall, 2011, pp. 82–94). Their proposed solution to the unmet need for legal assistance is not to reduce the professional ranks but to deregulate entry into the legal profession in order to swell the ranks. Eliminating or liberalizing UPL restrictions would allow individuals to provide legal services without the necessity of an expensive, three-year legal education. For less expensively trained legal professionals, representing low-income individuals would presumably be economically viable. Increased competition would, thus, expand access to legal services. Other countries offer models for licensing and regulating paralegals or other categories of legal professionals to perform law-related work, including certain legal work that US lawyers now monopolize, but for which quicker, inexpensive legal training will suffice. However, the organized bar in the US has traditionally defended both the idea of a unified profession and the professional monopoly (Green, 2009; MacCrate Report, 1992). Implicit in the idea of deregulating the admission process is recognition that, under the current regulatory regime, which demands that lawyers be highly educated, laws of supply and demand will not reduce legal fees enough to make lawyers more broadly accessible to lowerand middle-income individuals. Legal services are not a commodity that a seller has an economic incentive to unload at the lowest price. Lawyers’ stock in trade is their time, and if they cannot use their time profitably enough by rendering legal assistance, they will use their time in business or some other pursuit. The obvious ways to make legal services more accessible to lowand middle-income clients, other than by subsidizing them, is to lower the educational barriers to entry and open professional practice to individuals who cannot use their time more profitably. This would seem to be at odds, however, with courts’ regulatory objectives, particularly if one assumes that the extensiveness of legal training reflects the complexity of law practice. The contemporary flood-of-lawyers complaint, then, is not that there are too few clients but that there are too few well-paying clients and well-paying legal positions to support the number of highly qualified lawyers produced by US law schools under the current lengthy and expensive licensing processes. At least for new lawyers, complaints about the number of lawyers are implicit complaints about the cost of becoming a lawyer: If one could become a lawyer without the costs of tuition, living expenses, and deferred earnings, and without having to repay debt incurred by many young lawyers to finance seven years of higher education, more lawyers could afford to serve the lowand middle-income client population and, in any event, fewer would FLOOD OF LAWYERS IN THE UNITED STATES 197 D ow nl oa de d by [ Fo rd ha m U ni ve rs ity ] at 1 8: 28 1 9 O ct ob er 2 01 5 have cause to complain about the scarcity of career and employment opportunities in the law. As so understood, the complaint that there are too many US lawyers seems undeniable. If there were doubt, testimony would be offered by the many recent US law school graduates who cannot find full-time legal positions or who cannot find any entry-level positions in the legal field, by the many unemployed mid-level lawyers who cannot find new positions, and by solo and small-firm private practitioners struggling to keep their heads above water. Natural fluctuation? One might be tempted to view the flood of lawyers as a product of natural fluctuation that will eventually be resolved naturally: Sometimes there will be too many lawyers for available legal work, sometimes too few, and the market will eventually take care of the problem (Sander & Williams, 1989). The need for lawyers will vary at any given time based on various factors, including the level of economic activity, the nature and extent of regulation, and the availability of alternatives to lawyers such as the use of paralegals or technology (ABA, 1973). That seems to be the lesson of the post-World War II decades, during which the number of US lawyers and law schools increased explosively, despite occasional ‘market gluts’ during temporary economic downturns (MacCrate Report, 1992; Bickerton, 2003). That is evidently the organized bar’s assumption in reaction to claims, including legal claims, by recent law school graduates who assert that they were induced to attend law school by misleadingly rosy projections about the availability of wellpaying jobs (Shaer, 2012; Segal, 2012). Instead of promoting regulatory solutions, such as higher barriers to entry into the legal profession (which might well incur the opposition of antitrust authorities in any event), the bar has promoted market solutions. It has called on law schools and other institutions of the legal profession to provide more, and more accurate, information, to enable the market to work more efficiently (Tamanaha, 2012). Presumably, the expectation is that college graduates will then make better informed choices about whether to attend law school in pursuit of a legal career, and more will make the economically intelligent choice not to seek entry into the legal profession, thereby gradually bringing the number of lawyers seeking paying work into alignment with the number of clients seeking to retain lawyers. One might question, however, whether the flood of lawyers is primarily a problem of inefficient markets and asymmetrical information that can be solved by greater candor. The theory is not necessarily supported by recent experience: Since the most recent economic downturn, there has been abundant, accessible information in the popular and professional press about the scarcity of legal employment prospects, but interest in attending law school, although sharply diminishing, has remained high (Segal, 2012). This may be explained, for example, by the unrealism or wishfulness of college graduates or the absence of alternative employment. Either way, it does not ensure a natural thinning of ranks. 198 BRUCE. A. GREEN D ow nl oa de d by [ Fo rd ha m U ni ve rs ity ] at 1 8: 28 1 9 O ct ob er 2 01 5 Moreover, the flood of lawyers is at least in significant part a creature of lawyer regulation. There is nothing free about either the market for law licenses or the market for legal services. As previously discussed, both are heavily regulated. Those needing legal services are limited to hiring lawyers or representing themselves. The requirements of undergraduate and graduate education along with bar passage make lawyers expensive. The regulatory premise is that consumers of legal services lack the necessary sophistication and information to distinguish between competent and incompetent legal practitioners, and, therefore, for the protection of the public, the licensing and disciplinary processes and the UPL laws must limit the pool of legal practitioners to those who are competent to practice. When there seemed to be a high demand for paid legal services, universities and entrepreneurs decided to establish law schools that exploited the lawyer monopoly created by courts as regulators. Once a university opens a law school, it is unlikely to close it, even if the quality of the applicant pool decreases. Having fixed costs, law schools have a disincentive to reduce the size of their entering classes too drastically, although many have begun enrolling smaller classes. As potential consumers of legal education become savvier and the number of applications drops, law schools may enroll less capable applicants in order to meet their costs. An alternative market-driven answer is that competition among lawyers for limited numbers of clients and positions is good, or at least tolerable, because clients and employers will retain the best lawyers and the least competent will be forced to leave law practice for other labor. The problem with this theory is that, from the legal profession’s perspective, clients (and especially unsophisticated ones) cannot effectively distinguish good lawyers from bad ones (Wilkins, 1992). That is both because clients lack the specialized knowledge adequately to judge the quality of lawyers work and because client confidentiality obligations preclude lawyers from giving prospective clients enough information on which to make effective assessments. Were it otherwise, courts would not perceive a need to protect the public by denying admission to applicants who, based on a bar examination, appear to lack the requisite competence to practice law. Just as clients cannot distinguish the incompetent from the competent, they cannot distinguish the mediocre from the proficient. The flood of lawyers may trigger an unseemly competition over clients but not necessarily generate the benefits to clients that are already expected to accrue from wider choice. Regulatory responses: stemming the tide