Bar none: Is lawyer licensing really necessary?

Fellow Generation J.D. blogger Stuart Hindman wrote a piece a couple weeks ago about the New York Bar’s recent decision to adopt the Uniform Bar Exam. Stuart wondered whether it might be time to remove barriers that prevent us lawyers from moving to states where we are not licensed to practice.

I’ll take that one step further: I wonder whether lawyer licensing is necessary at all. The goal of the lawyer licensing regime is, presumably, to ensure some minimum level of competency among lawyers. To put it in a negative way, the goal is to make sure that members of the public aren’t taken advantage of by unethical or incompetent lawyers. These are noble concerns, since unskilled or unethical lawyers can do a lot of damage to their own clients.

But does the Bar exam, and the subsequent policing of licensed lawyers by the Bar, accomplish these goals? I’m not so sure. Think of the worst, most incompetent lawyer you’ve encountered. If you’ve been practicing for a few years, you’ve encountered at least one. (Hopefully it wasn’t me.) Please take a moment to reflect on the fact that whoever it is that springs to mind during this thought experiment managed to pass the Bar exam. The Bar exam is a nightmare but can we really assume that all of those who pass it are competent per se? I wouldn’t go that far.

I also wouldn’t presume that lawyer licensing is all that effective at eliminating unethical lawyers, given the number of sanctions the Bar doles out on a regular basis. At best, the state Bar can help clean up the mess after the fact. Criminal and tort law probably provide a stronger deterrent against the most unethical behavior that might be contemplated.

Let’s not forget that a less-noble goal of lawyer licensing, as with all licensing schemes, is to erect barriers to entry, thereby reducing competition. The fewer of us lawyers that exist, the more we can charge. When I hear people talking about law schools churning out “too many lawyers” when there are a large swaths of the population with unmet legal needs, I can’t help but think that reducing competition plays a bigger role in lawyer licensing than any of us would admit.

To me, the strongest argument in favor of lawyer licensing on a state-by-state basis is the fact that each state’s laws and rules of procedures are different in some way. Since a lot of law schools focus more on policy and not on state-specific laws, it makes sense that state Bars should take responsibility for making sure new lawyers know those state-specific quirks.

But a national, standardized Bar exam does exactly the opposite of testing state law. It instead tests the same general principles on which you were tested for three years during law school. What’s the point of that? And if the Bar exam is so important, why do so many states already waive the Bar exam for lawyers who are members of the bar in other states?

I recognize that most people would shudder at the thought of doing away with lawyer licensing, so the more practical change I would propose is this: eliminate the national components of the Bar exam, and instead test applicants on state law. I don’t like that this serves as a barrier to lawyers moving, but it does serve the stated goal of ensuring some minimum level of state-specific competency. (I would also allow anyone who didn’t go to law school to take a more rigorous Bar exam that tests national and state law, but I imagine I’m alone on that island.)

With all that said, I’m in favor of anything that would allow me to practice law in California without having to take its Bar exam. Design a system that would let me open up shop out there without having to take another test and I’m on board, baby.