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We need MORE lawyers, not less.

September 09, 2009 By: John Kindley Category: Uncategorized

After an email exchange, Scott Greenfield is no longer banning me from commenting at his blog, Simple Justice. That pleases me greatly, as Scott’s blog is one of the best if not the best criminal defense blogs out there, and I continued to read him daily despite the sting of being banned.

Today Scott concurs with Dan Slater in blaming law schools and the ABA for letting too many people into the legal profession. He argues that when there are too many lawyers running around, the oversupply inevitably means there will be too many desperate lawyers in hotpants trolling the streets and the internet for their next client/meal, to the detriment of what was once an honorable profession. Scott thinks the first step in changing this sorry state of affairs is to close the supply valve to a trickle.

I, on the other hand, think the solution is to turn the spigot wide open. Part of the endemic desperation Scott identifies is likely caused by law school debt and the foregone opportunity costs of three years of law school, as well as the unrealistic expectations of those who’ve made this investment that the investment should pay off handsomely. These expectations are all the more unrealistic because law school, despite its significant costs, does precious little to actually prepare students for the practice of law. The expectations are based primarily on the sunk costs, rather than any benefit the newly-minted lawyer can offer clients by virtue of his law school education.

The solution, contra Greenfield, is not to raise the barriers to entry, but to lower them drastically, by eliminating the artificial costs of becoming a lawyer and the artificial attractiveness and expectations of the legal profession associated with those costs. Since I’ve already said something similar in a comment on a previous Simple Justice post, I’m reproducing that comment below and deferring until a later day (when I can say something I haven’t said before) venturing back into the comment threads at Simple Justice:

I’m of two minds on this. As a relatively new lawyer (although I’ve had my degree since 1999, I spent the few first years out of law school tilting at a windmill that ultimately kicked my ass royally, followed by the next several years living in a funk and merely dabbling in law) struggling to get by and grow my practice, I’m not crazy about the prospect of increased competition. On the other hand, I’m a hardcore principled libertarian, and see most licensure laws as a device primarily designed not to protect the consumer but to protect the incomes of the already-credentialed.

Why are so many attracted to the law, leading to our society’s production of so many (some would say too many) lawyers? A major reason is that the lawyer still has a privileged and vaunted status in society, akin to that of doctors, while the 3 year law degree is far more do-able for more people than the education required to become a doctor. What if that vaunted status conferred by merely becoming a lawyer was eliminated by eliminating the current barriers to entry? (You’ve already established on this blog that law school does almost nothing to prepare law students for the actual practice of law anyway.) The profession would undoubtedly become much less attractive to status-seekers and rent-seekers, while those who are genuinely interested in the law and have an actual talent for it would still pursue their calling on that sounder basis.

Just as in the music business (which doesn’t require a license), those of us who are especially motivated and/or talented can still rise to the top of the profession and become “stars,” commanding high fees commensurate with the value provided.

I’m also of the mind that law should be the province of the people and not of the profession. It’s a real problem when somebody without a lot of money is, for example, going through a divorce and needs representation. He or she should be able to afford such representation, but in our current system such representation can be almost or actually out of financial reach. That would be less the case if the barriers to the profession were reduced or eliminated.

As someone who has already gone through the spanking machine of law school followed by bar exam, and has literally paid my dues, it’s not in my financial interest to say to other would-be lawyers, “you don’t have to pay the same dues I did; come on in, the water’s fine.” But if I’m being principled about the question, the relevant point of time in my life to consider is not where I am now but where I was before I started law school. If I had the option then of forgoing law school, at the cost of entering the profession without the benefit of the automatic and artificial credibility and status conferred by a law degree, I would hope that I would have elected that more merit-based approach.

For the record, I think society would also benefit by tearing down the barriers to the medical profession as well, a la Milton Friedman.

22 Comments to “We need MORE lawyers, not less.”

  1. I agree in principle, but I think there’s another way to do it. We should open the practice of law. Specifically, we should simply drop the barrier that prevents non-lawyers from representing people. The model I’ve been using for this, for many years now, is Uncle Fred.

    Say you have a legal problem. You want to sue someone or you’ve been sued or you’ve been charged with a crime. You can represent yourself or you can hire a lawyer or maybe get a public defender or court appointed counsel. But what if you’re smart enough to know better than to represent yourself but don’t want to spend (or don’t have) the money to hire a lawyer and (if it’s criminal) don’t like/trust the lawyer provided for you at government expense? You have no alternative. Why should that be?

    If you look around and find yourself in that position and find yourself concluding that the smartest guy you know is your Uncle Fred, and if he’s willing, why can’t he represent you? You can represent yourself for godssake. Why can’t you choose a non-lawyer proxy?

    Yeah, he probably doesn’t have malpractice insurance. And he might fuck things up for you. But it’s your life, your case – shouldn’t it be your choice?

    There’d still be lawyers, of course. Many (most?) would prefer them to the smart uncle or cousin or woman who lives down the block. Especially, they’d prefer the good ones.

    I’m no more sure that the good lawyers will drive out the bad ones (or the Uncle Freds) than I am that truth wins out in the marketplace of ideas. But I like the marketplace of ideas, and I think I like the idea of Uncle Fred. At least, I think he deserves a hearing.

    15 or more years ago, the Texas Bar Journal decided it wanted to start a section of controversial articles. I wrote up and sent in a longer version of this called: “Uncle Fred in Court: In Defense of the Unauthorized Practice of Law.” They never published it, and never again suggested that they’d have such a section.

  2. John Kindley says:

    Jeff, thanks for your comment! I’ve seen you around in comment threads, but Mark Bennett’s post led me to your blog and I’ve subscribed.

    Your reference to “Uncle Fred” actually sounds familiar, like I’ve read it somewhere before. Is the article you sent to the Texas Bar Journal posted online somewhere?

    What you’re suggesting with Uncle Fred is pretty much what I had in mind when I advocated drastically lowering the costs of entry to the profession: just get rid of UPL statutes entirely. If we did that, Uncle Fred could not only represent his nephew but also actually hang out a shingle if he was so inclined. That is, he could be a “lawyer,” despite never having gone to law school. Now, because today most lawyers have graduated from law school, Uncle Fred should also have a legal obligation to disclose to potential clients that he hasn’t. Uncle Fred, if he’s smart and diligent, would be as well-equipped to represent clients as many newly-minted law school graduates.

    It’s refreshing because so unusual to meet another licensed practicing attorney who doesn’t faint at the idea of unlicensed people practicing law.

  3. John,

    It’s not posted anywhere, and I doubt that I have even hard copy anymore (it’s marginally possible I have it on one of the old 5 1/4″ floppy discs, but I don’t have any way of checking – or reading it if I do have it that way). But I’ve talked about it from time to time, maybe someplace on the web sometime where you might have seen it – or maybe not.

    I got to you through Mark, too. Added you to my blog roll right away. We don’t agree about everything it seems, but that’s what makes this interesting.


  4. There are some very good answers to Jeff’s question, “why not Uncle Fred.” It’s unfortunate that neither of you appear to be aware of them. The validity of your position only begins after you’ve addressed the real problems, rather than silly ones like no malpractice insurance.

    You’ve still got a ways to go.

  5. John Kindley says:

    You know me Scott. I’m always biased in favor of liberty. That’s why when I come across something like Milton Friedman’s argument against MEDICAL licensure [see, for chrissakes, I’m ready to run with it. Friedman provided (in his book Capitalism and Freedom, of which the link is an excerpt) some answers to many of the questions you’re likely thinking of — questions that comprise what is taken for granted as “common sense” and that you could safely presumed I was aware of.

    One problem brought home recently by a local lawyer’s disciplinary case is the problem of attorneys who rip off clients. While I’m all for lowering barriers to entry in to the profession, this doesn’t mean I’d be opposed to people who’ve demonstrated a willingness to rip off clients being banned temporarily or permanently from practicing law in order to protect the public.

  6. That’s a good start, John. But there’s much more. How about distinguishing why Uncle Fred can’t be buddy Fred, who can’t be Fred from the corner, who can’t be Fred who just wants his time paid for and expenses covered, who is then no different than any unlicensed person playing lawyer for a fee, who then lacks the competence, takes the fee, screws the client who doesn’t know any better and has no recourse.

    When we’re done with that, we can move onto the misplaced reliance on competence issues, then the do-over problem.

    Then we’ll get to the tough issues.

  7. John David Galt says:

    I agree with the basic point that licensure laws are unfair, and are not there to protect consumers. Nevertheless, the law *is* complicated enough, and difficult enough to use, that if I’m ever accused of anything serious, I’ll want a real law-school graduate on my case, not some smooth-talker with a shingle who will lose in court.

    It seems to me that the underlying problem is that the law *is* that hard. All laws, both civil and criminal, ought to be written so that any high school graduate can read and understand them, and should mean what they say. I would like to see this requirement written into the Constitution, along with a rule similar to the one for contracts of adhesion: if there’s ever room to read a law more than one way, then courts must follow the interpretation that gives the individual more freedom to do what he wants.

    While we’re at it, let’s eliminate the need to pay someone for legal advice by allowing anyone to walk into a courthouse and get an instant ruling on whether it’s legal for him to do thus-and-so. (This means setting aside the present rule that prevents courts from considering this type of case.) If they say it’s OK, that ruling would be binding on the government; if they say no, you could appeal. The point of this is to eliminate uncertainty about the legality of any behavior, thus making government’s actions as predictable as the “Rule of Law” is supposed to imply.

    (Yes, this last item amounts to “socializing the profession of law”. I’m no socialist, but I’m willing to make an exception in this case, because I regard lawyers as a cost, rather than a help, to every transaction they touch. I see a parallel to David Hume’s argument with Adam Smith about the desirability of established religion: Hume pointed out that if Britain were to dis-establish the Church of England, the market would produce a greater variety of religious institutions to serve different tastes; Smith agreed that that would happen, but asked whether more and better religions would really be a good thing.)

  8. John Kindley says:

    Scott: you’re deftly putting the burden of proof on me, when I think the burden should be on you to demonstrate why people shouldn’t be free to hire whomever they want as their attorney. Although it’s a lazy way of meeting the burden you assume is on me, here’s a 48-page policy analysis from the Cato Institute that makes “The Case for a Free Market in Legal Services”:

    But a few of my own thoughts: as the previous commenter suggests, even in the absence of UPL laws most people aren’t going to pay any random person good money to represent them in the absence of any evidence that the person knows any more about the law than they do themselves. Auto mechanics, I don’t think, need a license to work on cars. Some of them are more competent than others and some are more honest than others, but I don’t think you’ll find many holding themselves out as auto mechanics who really know nothing about fixing cars. Your qualms seem to be all about ensuring competence, but even now having a license doesn’t guarantee competence, and simply graduating from law school makes the graduate hardly more competent to practice law than your average intelligent person who’s read at least one book about legal research and legal reasoning. True, if the freedom to practice law cost nothing to obtain, “lawyers” might be more willing to risk losing it by misconduct than they are now. But attempting to keep lawyers in line by giving them something substantial to lose isn’t a very principled justification for imposing artificial barriers to entry such as law school and a bar exam. If we’re going to do that, we might as well require every person who wants to practice law to post a reasonable bond, instead of requiring them to pay through the nose for the privilege of wasting away in law school for three years when they could be doing something useful like actually practicing law. Practice makes perfect.

  9. John Kindley says:

    John David Galt: Thanks for your intriguing comment. I agree with you that laws could and should be written so as to be more readily understood by intelligent laymen. The tax laws are a prime example. Regarding your other idea: you can already obtain “declaratory judgments” in the kinds of situations you identify prior to doing something that is conceivably illegal, so long as there is a genuine “case or controversy.” On the other hand, it would be just too expensive and unmanageable to allow any person to come into court and demand an “advisory opinion” where there is no genuine case or controversy, particularly when many of the questions people have are genuinely tough and don’t lend themselves to an “instant ruling.”

  10. As a law student with a little experience in the real-world practice of criminal law, I agree that law schools don’t create competent lawyers. Still, I think knocking down all barriers to the profession is a little absurd. I’ve listened to several defendants spout legal doctrine they pulled from jailhouse lawyers; defendants who have complete faith that their fellow inmates are keyed into all the necessary processes for their acquittal. They all seem shocked when they discover how wrong their cellmates were. Protecting the ignorant from themselves requires some licensing of attorneys with the threat of revocation. Half the population is of below average intelligence. Living in an area where defendant’s rights aren’t the primary concern, libertarian-lawyer-unlicensing seem like a trap “compassionate conservative” judges would use to skirt inadequate counsel issues.

    Generally, I think the barriers to entry have already been knocked down. Public law schools have very reasonable tuition requirements. If you consider scholarships, most of the current barriers to entry are intellectual or effort based. Yes, we incur an opportunity cost in the time required to graduate but those are the choices we make. There aren’t too many or too few lawyers graduating now; I think the market will tolerate as many as are necessary.

    Still, I will back you up on the medical licensing. I think I should be able to get whatever drugs I want whenever.

  11. John Kindley says:

    Blake: You raise some very good points and some very legitimate concerns. I’ve met some of those jailhouse lawyers, some of whom are no longer in jail. I could see them wreaking some havoc on the unjailed unwary with their plausible-sounding but harebrained interpretations of the law. The fact that their cell-mates are taken in is cause for concern that in a free market people on the outside will likewise be taken in, although prisoners are a bit more of a captive audience for such hucksters. On the other hand, some intelligent people wind up doing time, and wasn’t there a story recently about an ex-con who had convinced (by what he wrote and said) many genuine sentencing experts that he was himself a sentencing expert and lawyer, before somebody realized he was practicing law despite never having gone to law school?

    I’ve had some clients (who weren’t in jail) who were getting some advice of the jailhouse variety from friends whom I assume had done some time. In one of those cases, I had to break it to the client that what his friend was recommending just couldn’t be done. So I suppose that’s one instance of a licensed lawyer preventing from being filed in court what would have been a frivolous motion. But notably, the client had the sense to contact an attorney before filing the motion. In fact, his friend had recommended that he contact me. It’s also notable that in an earlier (less serious) case the friend had ghost-written a motion that was granted — although the client could in fact have simply made the motion orally and it was a motion that was certain to be granted.

    These are foreseeable problems, but the artificial scarcity of affordable legal services caused by artificial barriers to the profession is also a serious problem. It might be hard for us to imagine precisely what a genuinely free legal market would look like and all that it would entail, and we might question whether the resulting benefits would be outweighed by the resulting problems. To me the potential benefits seem to outweigh the potential problems, but even if I wasn’t exactly sure of that I’m in favor of resolving reasonable doubts in favor of liberty. Something Milton Friedman said in the essay I linked above is apt here: “The impossibility of any individual or small group conceiving of all the possibilities, let alone evaluating their merits, is the great argument against central governmental planning and against arrangements such as professional monopolies that limit the possibilities of experimentation.”

    The philosophical anarchism I espouse on this blog, arrived at after thoughtful study and consideration, is primarily a compass to steer by. It doesn’t mean I think it’d be desirable to change everything overnight. Getting rid of the third year of law school, internet law schools, more practice-oriented training in law school, the incursion of non-lawyers into areas such as preparation of simple estate planning documents and bankruptcy petitions, are all steps in the right direction. Now if all that and more happens and ten years from now I can’t get anyone to pay me more than $10 an hour for my services, I may regret my principled stance. But needless to say, I don’t see that happening.

  12. John Kindley says:

    Another thought: Likely many lawyers would get out of the profession but for all the time and money they’ve invested in it and because (partly because of the protections afforded by licensure) they can make more money lawyering than they could, say, teaching. But if artificial barriers to other professions like teaching were removed along with the artificial barriers to lawyering, these unhappy lawyers who’ve discovered they made a mistake by becoming lawyers could more easily move on into these other professions. Lawyers could move out of the profession as easily as they could move in. This would somewhat mitigate the numbers of lawyers.

  13. As the proponent of radical change, John, the burden is on you to recognize the problems raised by your proposal and address them. The first step is a depth of appreciation of how your proposal would affect the system, not just tweaking around the edge or a few simple and obvious problems, but a deeper recognition of what it means.

    Your point, that removal of barriers would remove the status incentive for people to become lawyers, is understood. But that’s one issue amongst many. Before your proposal is worthy of being taken seriously, you need to do a lot more work. Otherwise, it’s just another absurd proposal of no consequence, and unworthy of anyone’s time to consider it.

    There are plenty of radical proposal out there by people who haven’t given them the time and effort required to be given serious consideration. If you want to be taken seriously, then do the legwork.

  14. John Kindley says:

    Scott, I agree with you that to the extent I’m proposing radical change, the burden of proof is on me. I in fact agree somewhat with the sentiment seemingly approved by one of my idols, Albert Jay Nock (a radical, an anarchist, AND a “conservative”), that “when it is not necessary to change, it is necessary not to change.”

    But I’m not seriously proposing that all barriers to the profession should be torn down overnight. Insofar as my post was not qualified with that clarification, it was incomplete. Just as you proposed (non-radical) change in the direction of raising the barriers to the profession, as a practical matter I’m proposing (non-radical) change in the direction of lowering them. But there’s a principle behind my proposal (as I recognize there’s a principle behind yours) and the logical end of that principle is a completely free market in legal services. Therefore I expressed myself with that end in view, trying to point out what could be seen as the benefits and suggesting that the disadvantages might not be as real and dangerous as imagined. Presumably, less radical changes in the direction of that end would confer some of the benefits with less of the dangers. From the new vantage point of that non-radical change we could hopefully take stock of the situation and see better whether we’re headed for disaster and whether that direction and moving even further in that direction is in fact ill-advised.

    I have neither the time nor the incentive to do the legwork you suggest I would need to do to be taken seriously. In fact, I’m guessing that moving in the direction I propose would be contrary to my direct financial interests. Others, like Milton Friedman and the Cato Institute in the essays I’ve linked above, have already done much of that legwork. No need for me to repeat it. And as Friedman suggests, in any event, it is exceedingly difficult to imagine and anticipate all that a radical change (any radical change) would entail. No such envisioning of the results of such a radical change are going to be entirely persuasive.

    All a blog post can do or should try to do is to provoke some thinking. It can’t be expected to conclusively prove whatever case it’s trying to make. Even well-researched law review articles generally don’t accomplish that. I didn’t take the post any more seriously than the nature of a blog post deserves, and I didn’t expect anyone else to either.

  15. A quick wading back into this thicket.

    I’ve never been altogether comfortable with the slippery slope of my argument for Uncle Fred. I do recognize the dangers that bad lawyering (let alone bad non-lawyering) cause. A significant part of my practice has always been trying to help people dig out of those holes. And a significant part of the rest of what I do is trying to get lawyers, criminal defense lawyers, to do a better job and to care about the quality of the job they do.

    I’m as hostile to the slackoisie as Scott is, and I’m passionate about criminal defense, always willing to help lawyers who care and want to do the job properly.

    That much said, the point about Uncle Fred isn’t to encourage him (though that’s one place you slide on the slippery slope). It’s to help his nephew or niece.

    The idea that I can be represented by a lawyer, who’s been vetted by a law school and bar exam but may or may not be even marginally competent, or by myself but not by someone else I choose, someone smarter than me (or so I believe), strikes me as fundamentally flawed. If I have the right to self-representation (Faretta certainly says that and sometimes I have no alternative because I can’t afford counsel, don’t qualify for legal aid given the issues, and can’t find a volunteer), why don’t I have the right to representation by my smart friend?

    All the relevant dangers and concerns don’t answer that question for me.

  16. That’s an interesting question, Jeff. I suppose that the reason we can represent ourselves is a matter of affirmative individual right, preserved and protected by the Constitution. No one can force a lawyer on me and thereby deny me my right to act on my own behalf.

    But the right is a one-way street. While I can’t be compelled to be represented by another if I decide not to be, it doesn’t grant me an affirmative right to be represented by anyone I want. And frankly, if it didn’t, it would implicate all the problems that would flow from the elimination of barriers to entry into the practice of law. Arguably not at first, but surely in a very short period of time as there would be no conceptual ledge to stop the slide down the slippery slope.

  17. That’s certainly the rationale the Court laid out in Faretta. But Martinez specifically says it doesn’t apply to direct appeal (or doesn’t apply enough to have any Constitutional mandate). So on appeal, then, and at trial for non-criminal matters the story changes. Self-representation isn’t a constitutional right, but it may be an obligation if you can’t find anyone to represent you. The argument can be made that those who voluntarily enter the fray should deal with the consequences of their choice, but what about the involuntary civil defendant, not entitled to appointed counsel, not in court by choice at all? Must that person suffer because we won’t allow someone smarter to do the case? What’s the rationale for saying that person can represent herself but Aunt Philomena can’t step in and do the job? Bad options are perhaps better than none at all.

    I can outline ways the legal system could be changed so that everyone who wants counsel, for any reason, gets counsel. You could have a system of exclusively appointed attorneys or of appointed ones for everyone but you can hire your own if you like. (You know, like health care with a public option.) But that’s not just tweaking, it’s crafting a whole new system.

    Like I say, I worry about that slope, but I’m not sure we shouldn’t be working on ways to control that rather than being in a rush to bust Fred.

  18. John Kindley says:

    Discussions of this topic seem to get bogged down just a little too much in cost-benefit analysis and worries about the slippery slope. There is a fundamental principle involved, which Jeff neatly identifies with the character of Uncle Fred. Yes, if a clear and present danger of societal implosion looms, we may have to be pragmatic and possibly second-guess or refine our principles. But with a principle so seemingly clear and sensible (i.e., a person’s right to represent himself necessarily implies a right to appoint a relative or friend or even an acquaintance whom he thinks could do a better job for him than he could himself), I return to my earlier suggestion that the burden really should be on those who support outlawing the exercise of this apparent right to prove that not doing so would lead to social disaster. In the absence of such proof, it’s hard not to suspect that the long-standing traditional barriers to entry into the legal profession have really all along been all about (or primarily about) protecting the established from too much competition.

  19. Let me try to say this gently. Because a proposition is “so seemingly clear and sensible” to you don’t make it so. Thus far, you’ve got a chorus of one with some harmony by Gamso. I do not find your thesis, that self-representation “necessarily implies a right to “appoint [I have no clue why you chose that particular word] a relative or friend or even aquaintance. . .” That’s your view, but hardly a sound argument. Because you think it “necessarily implies” does not make it so, and does not shift the burden to the rest of the world (or me) to prove you wrong.

    One of the issues I’ve found with some frequency in your arguments, John, is that you seem to see yourself and your views as the center point, the middle ground of obvious reason, and therefore obvious. This ignores the fact that you are constantly in the position of outlier, always urging a radical political solution. It doesn’t make you wrong, but it does demand that you provide both a sound line of reasoning and adequately address the faults of your position. As you don’t care to do the legwork, which is fine, you can’t keep pressing your position.

    When your purpose is to urge change, take responsibility for doing it in a rational way. Merely saying that your position is the clear and sensible one is belied by the fact that it is not the position adopted by the vast majority of people. The majority can be wrong, but it’s your job to persuade them.

  20. John Kindley says:

    You don’t have to be “gentle,” Scott. While I’m prone to return tit for tat, my feelings aren’t that easily hurt, and there’s not much you could say that would diminish my respect for you.

    Sorry, but I found your explanation in comment 16 above of why we have a right to act in our own behalf but not a right to act in our own behalf by appointing a smarter relative or friend to act in our behalf to be almost no explanation at all. I realize that this issue cuts to the very heart of the matter — it’s pretty much the whole ball of wax. (Not sure what your issue is with my use of the word “appoint” — that’s the word people use when they appoint an attorney-in-fact.) The weakness of your explanation is brought home by the fact that you immediately supported it with the familiar slippery slope argument. You find plausible the idea that our right to act on our own behalf in legal matters comes down to our right not to have representation forced on us; I don’t. I think the right to act on our own behalf facially includes the right to have other willing persons of our choosing act on our behalf, to assist us. In just about any context other than the legal context this principle would be recognized as self-evident. (It’s kind of fruitless to argue about whether something is or isn’t self-evident. Either you see it or you don’t.) The fact that it isn’t recognized as self-evident in the legal context is due largely, I believe, to the pressures brought to bear on public opinion and legislatures by the legal profession and justified by utilitarian arguments. Again, I think utilitarian arguments should take a back seat to bona fide principles.

    A very plausible explanation for why there is not a chorus of other attorneys arguing against UPL laws is that it is not in our financial interests to do so. And as a class we have a disproportionate influence on what laws are enacted and enforced.

    Your friend, David Giacalone, appears quite sympathetic to “my” view:

    According to HALT (Help Abolish Legal Tyranny), a legal reform organization favored by David Giacalone, “One of the most effective ways to increase consumer choice in legal services would be to abolish unauthorized practice statutes. . . The ‘unauthorized practice of law’ means saying you are a lawyer when you are not.” See

    Here’s the conclusion of that 48-page Cato Institute policy paper I linked to above, with some insights into the burden of proof:

    Unauthorized practice of law prohibitions are neither
    necessary nor sufficient for their ostensible purpose: protecting
    the public against incompetent legal practitioners.
    Free markets deter most incompetents from entering an occupation
    and soon eliminate any who might enter. No one is
    able to fail repeatedly in a market; the penalties are too
    severe. UPL prohibitions add virtually nothing to the
    market’s protection against incompetence. The material
    typically digested in law school and later mastered to pass
    the bar exam does little to prepare an attorney to handle a
    case or advise a client; competence comes from practice and
    additional studies that are not mandated by law but undertaken
    out of self-interest.
    While the benefits of UPL prohibitions are negligible,
    their costs are considerable. By raising the cost of entering
    the legal services market, UPL statutes also raise the
    cost of obtaining legal assistance. Some consumers cannot
    afford help. As a result, they must either do nothing or
    attempt to handle the problem themselves. When high standards
    are set by the political process rather than the market,
    prices of some legal services are inflated and contracting
    options of consumers are diminished.
    But this is not just a dollars and cents, costs versus
    benefits issue. UPL prohibitions are an attack upon freedom.
    They threaten and sometimes impose legal sanctions
    against individuals merely for having rendered a legitimate
    service that another person desired. Legal punishments
    ought to be reserved for those who have harmed or threatened
    others, not visited upon peaceful individuals who wish to
    serve others. Liberty is diminished when the law compels
    practitioners and aspirants to comply with a competition-suppressing
    licensing mandate before offering services to
    willing buyers.
    UPL prohibitions and many similar attacks on economic
    liberty have flourished because for decades the Supreme
    Court has chosen to accord economic liberty cases only
    minimal scrutiny, tantamount to a rubber stamp for government
    regulations. There is no reason to assign economic
    liberty to the underworld of constitutional jurisprudence.
    If the Court were to move to a higher level of scrutiny in
    economic liberty cases, insisting that the state demonstrate
    that it has chosen the least intrusive means of accomplishing
    an objective of compelling state interest, UPL prohibitions
    would have to be stricken. Until that happens, state
    legislatures can and should repeal their UPL prohibitions,
    thus allowing their citizens to benefit from a free market
    in legal services.

  21. I expect that the more you argue your point, together with the conspiracy of lawyers as explanation for why it isn’t the rule, the more naive and silly it becomes. My buddy David is sympathetic, believing that lawyers are, for the most part, greedy leeches on society. I don’t necessarily disagree, but find the abolition of licensure a non-solution.

    The free market approach to solving all of life’s problems is a religious debate. I don’t believe in your god, and free markets, in my view, has produced some very poor results. As for your characterization of my explanation of why a person has a right to go pro se but not use his Uncle Fred, allow to try to explain it in a way that might make it clearer to you. Allowing a litigant to go pro se is not a positive, but something society suffers because of a right due him. This shield of his rights doesn’t become a sword to justify using Uncle Fred. The right stops with the pro se litigant, the most extreme limit of the right.

    You will likely disagree with the point, which is fine, but I hope this at least makes it clearer so that you will disagreeing with the correct argument.

  22. John Kindley says:

    Fair enough, Scott. I suspect we’ve reached an impasse, having an essentially religious disagreement about how sure we have to be that something is a crime before we treat it as one.


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  1. Self-Evidence | People v. State 20 09 09
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