Hiring a lawyer can often be a financial drain for those who seek their services. Meanwhile, newcomers to the profession face a series of hurdles that serve more to protect the lawyers from competition rather than the public from questionable legal assistance. However, there are potential solutions: considerate reforms that can bolster both the competition and access to legal aid.
In a paper by the Federalist Society’s Regulatory Transparency Project, the authors
explore various reforms that could significantly enhance justice accessibility by increasing the supply of dependable legal services. A whole sleuth of professions has been subject to reforms aimed at boosting access and lowering entry barriers. Nevertheless, the legal profession seems to be lagging behind in this area. There are evidently feasible changes that policymakers can introduce without reducing important consumer safety nets to bridge the gap between lawyers and clients.
Many argue that the regulators of legal practitioners need to review the unique benefits that the bar exam offers versus other selection methods. Some states have opted to use a graduate degree as a substitute for passing the bar exam. Others have substituted apprenticeship for other professional qualifications based on the theory that the practical experience of ‘learning by doing’ is more effective.
Even after licensure, attorneys encounter continuous barriers. In light of the pandemic, many professionals have discovered that they can work remotely. However, those that are licensed to practice in one state often can’t practice the law of that state if they are based in another. This can put the law licenses at risk.
Another area for reform is the practice of law across multiple states which also currently holds barriers, as lawyers are required to retake the bar exam, regardless of the similarity to previous exams. Legal services can also be provided safely by non-lawyers at a lower cost, much like physician assistants can perform certain medical tasks for a fraction of the expense, so can paralegal professionals.
Utah’s Regulatory Sandbox Program approved in 2020 provides an example of a system which allows businesses to experiment with innovative provision of legal services beyond the current state’s regulatory structure, while substantial oversight is applied to protect consumers. It was reported that in its three-year existence, the sandbox has assisted over 2,500 individuals with a wide range of legal issues. Public concerns about the program seem to be very low, with one complaint per 4,111 services carried out, and just one harm-related complaint from 6,851 services. Interestingly,
Utah’s sandbox data portrays promise and allays fears around harm.
There’s a wide bipartisan consensus that many aspects of occupational licensing often lead to higher costs to consumers without affecting the quality of services. The legal profession is no exception to this critique. It is suggested that there’s plenty of scope for sensible reforms which will protect the public as well as bolster access to justice.
The authors of this discussion;
Shoshana Weissmann, a policy fellow at the R Street Institute;
Braden Boucek, the director of litigation at Southeastern Legal Foundation; and
Dan Greenberg, general counsel for the Competitive Enterprise Institute, posit these problems and potential reforms in a recent
Bloomberg Law article.