06 May 2008| Bar None
The absurdity of law licensing
By: Dave Roland
My wife knows that I must really love her because I agreed to move to her home state of Missouri with the full knowledge that I'd have to take that state's bar exam before I could legally practice law there. For anyone who's never had to take a bar exam, trust me when I say that the whole process is a nightmare. Just preparing all the materials necessary to gain approval to take the exam is a hassle, to say nothing of the strain of studying for the test itself. Across the nation, most states require you to graduate from an ABA-accredited school just to sit for the exam, and of all those law school graduates taking the tests, fewer than two of every three will pass any given administration.
More frustrating than the high failure rate of these exams is the fact that they are essentially futile.
I had to take Missouri's exam in spite of the fact that I had already passed the Tennessee bar exam (in 2004), obtained admission to the DC bar, and had litigated all over the nation in my three years as an attorney with the Institute for Justice. Even though my expertise and chosen field of specialization is constitutional litigation, I had to be prepared to answer -- from memory! -- detailed questions on the subjects of wills and estates, family law, secured transactions, and commercial paper. In short, my ability to earn a living in the profession for which I am trained depended on my developing a (short-lived) command of information that would be thoroughly useless to me after the exam. So for a span of about two weeks in February, I did nothing but immerse myself in bar review outlines and CDs in the hopes that I'd retain just enough on the days of the exam to get by. Fortunately, it all worked out and I passed. And, as with most people who have overcome a bar exam, now that a couple of months have passed I probably couldn't tell you much at all about those subjects without first doing some research about the question asked — which is, in fact, what attorneys tend to do in the real world!
All of that is to say that the idea of licensing attorneys is little more than a convoluted way of restricting the services available to consumers and bolstering the rates we are allowed to charge clients, all under the guise of "protecting the public."
Really, the whole thing is silly and patronizing. People recognize the difference between gourmet restaurants and street hot dog vendors, and they can also recognize the difference between a white-shoe law firm whose attorneys graduated from Ivy League schools and a small-time local lawyer who went to night school so he could learn just enough to hang out his own shingle. Those willing to hire a lawyer with questionable credentials are those who otherwise wouldn't be able to afford legal representation at all. Even unproven or lesser-quality legal representation is better than no representation at all.
I'll happily admit that there are some bad attorneys out there already. I'll even concede that there would likely be more if lawyers didn't have to get permission from the state in order to practice. But it should be plain that academic credentials and a license from the state are no guarantee of quality, and bar exams have been known to cause problems even for some of the nation's finest legal minds. In short, since the bar exams are less an evaluation of legal skill than they are a tool to restrict the supply of legal services, the issue really boils down to the fact that the state should not take upon itself the responsibility to tell citizens who they will and will not be permitted to represent them when they need an attorney.