No One Hates Lawyers More Than The Lawyers Who Regulate Them
Portrayals of lawyers in literature, media, and popular culture are rarely flattering. The quintessential attorney is a caricature: Obnoxious, greedy, arrogant, tedious, and dishonest. With semantic flourish, he rakes in money using clever trickery mislabeled as justice. Today’s lawyers win by shamelessly taking advantage of a rigged system.
Unfortunately, legal industry regulations are premised on the same stereotypical canard. State supreme courts and the bureaucrats who serve them assume their colleagues (big firm lawyers excluded) are inherently lazy, unintelligent, dishonest, and unethical. They insist that without “helicopter regulation” — constantly monitoring attorneys and peppering them with reminders of basic morality — practitioners will engage in a never-ending pattern of lying, cheating, and stealing.
Professional oversight serves two important purposes: Rooting out the truly unethical and unfit and protecting an industry image that is under constant attack. Some lawyers are incompetent or abuse their client’s trust; they pose a public threat that needs to be abated. Furthermore, scapegoating the bar for societal ills has long been an important page in the playbooks of business leaders and elected officials. For example, as medical prices soared in the 2000's, doctors, hospitals, big pharmaceutical companies, and insurers blamed greedy “ambulance-chasers” incessantly filing frivolous medical malpractice lawsuits. Congressional Republicans and President George W. Bush pushed tort reform as key to making health care affordable for all. In reality, malpractice suits — usually prohibitively expensive to prosecute and therefore brought only in the most egregious cases — were not primarily responsible for the surge in medical pricing. Ethical prohibitions on asserting baseless claims gave tort lawyers some cover and a means of countering the suggestion that they were running amok.
However, the current regulatory system has devolved into a glorified plutocracy, and some within it are focused primarily on protecting their own relevance. The role of the overseers is diminishing with the changing economy. Technology has moved many functions that were once the exclusive province of attorneys outside the sphere of legal practice. People can inexpensively obtain online many of the documents— contracts, wills, certificates of formation— for which they once paid lawyers. The role of the individual state as industry regulator has also waned. Transactions, intellectual property protection, environmental regulation, and many other areas of law are national and international in scope. As the roles of both plutocracy and plutocrats shrink— as more matters fall outside of their regulatory ambit— their perceived need to demonstrate ongoing relevance and importance grows.
As a result, some bureaucrats are now behaving like petty tyrants, justifying their absurd actions by perpetuating the stale caricature of the inept, immoral lawyer. The draconian treatment of bar examinees by some state supreme courts and boards of law examiners in the wake of the CoVid epidemic demonstrates remarkable overreach. Every test taker is presumed to be engaged in an intricate cheating plot. As a result, boards of law examiner have adopted some patently outlandish rules. Test takers have been warned that they could be accused of misconduct if they twirl their hair, look around too much, or act “nervous”. In some states, women cannot use their own tampons and maxi pads during the exam. Comfort products like lip balm may be also prohibited. Some states are forcing examinees to sit without access to a restroom for hours before the test even begins.
The assumption that all test takers are cheaters and the suggestion that Kotex, Chapstick, or bathroom access somehow enables them to hatch their fiendish plots are as moronic as they are insulting. They’re also convenient. Exaggerating the risk of rampant cheating shifts focus away from the boards of law examiners wholly inept response to the pandemic. Kentucky cancelled its summer seating only eighteen days before the scheduled test date. When applicants protested, noting that the Commonwealth had months to prepare suitable accommodations, they were chastised for attacking the law examiners whose noble mission is protecting the public from unqualified would-be lawyers. There was no explanation of why, despite having plenty of advance notice, a bureaucracy with the sole mission of administering the bar exam was unable to come up with some reasonable solution that didn’t involve canceling the test.
Blame avoidance is only part of the equation. The health and logistical issues of conducting an in-person exam during the pandemic have led some to question its overall efficacy in determining whether a candidate is fit to practice law. Is the bar exam a true barometer of qualifications, or is it simply a useless hazing ritual administered because “that’s how we’ve always done it”? If there is no test this year, perhaps decision-makers less consumed with preserving their own status will conclude that taking the bar need no longer be a licensing prerequisite. That in turn could threaten the role and import of boards of law examiners. For the regulators, the status quo is much safer and simpler.
The high-minded aspirations that helped shaped the legal industry’s regulatory scheme have minimal value in the plutocracy created to administer it. The one-dimensional illustration of the lawyer as a cheat, liar, and thief is no longer viewed as an odious threat to the practice of law. Rather, it is now a convenient tool for industry bureaucrats clinging to the antediluvian regulatory system from which they derive power, status, and significance.
Steven Fried is an entrepreneur, attorney, and the founder of OlyverApp, a web-based platform that helps entrepreneurs manage their businesses. Visit at www.olyverapp.com.
