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.

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: http://blogs.law.harvard.edu/ethicalesq/unauthorized-practice-of-law/

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 http://www.halt.org/reform_projects/freedom_of_legal_information/unauthorized_practice_of_law/

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.

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.

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.

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.

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.