Nearly two weeks ago, Prior Probability posted a blog entry suggesting that the Bar exam for lawyers should be eliminated . At least for this year. Amid concerns of the Covid-19 outbreak. Stating that going through law school and proper conduct should be enough to guarantee a provisional license. I concur with this sentiment, it does seem superfluous to require an additional exam on top of having already earned Juris Doctorate degree. I will go one step further and suggest we indefinitely suspend it as a requirement. Making it completely voluntary. Also, making membership of the Bar association voluntary as well. What I mean by this is neither should be a prerequisite for practicing law. But, do not abolish either the test or this mentioned organization.
I am going to justify this quirky position on the grounds of consumer sovereignty. If I want a lawyer that is a member that passed the Bar exam, I should have that option. However, obviously at a higher cost. Vice versa, if I require legal services I may want to pay slightly less for a lawyer who does not have any affiliation to the Bar association. Either due to budgetary constraints or even a philosophical aversion to trade associations. Maybe I am willing to give second chance to a lawyer who has been previously disbarred. Regardless of my rationale, making the Bar exam mandatory not only impacts would-be lawyers but consumers. It keeps cost highers and decreases the number of service providers. Precisely what most forms of occupational licensing achieve, less competitive markets.
I know many would deride my commentary as being ill-advised. When need some sort of assessment assuring that the lawyers providing legal services are qualified. Such critics underestimate how quickly words gets around, especially in the age of the internet. There are a plethora of websites dedicated to customers providing critiques of a diverse array of services sectors. Including lawyers. Between Angie’s List, Yelp, and Google Reviews, there are enough resources at the disposal of the average consumer. Also, since when does a test necessarily operate as the ultimate seal of approval? Relying on testing to verify quality and competence often confuses correlation with causation. Higher SAT scores, for example, are correlated with an increased likelihood of academic success in college. However, such test results cannot determine success. In a similar vein, the Bar exam will not guarantee the lawyer you hired is competent or ethical.
To keep consumer interests in mind, I would recommend forming a stratified market. A legal services market with multiple tiers of service levels based upon credentials. Similar to luxury products bargain/bottom-shelf Scotch, premium/Middle-shelf Scotch, and then top-shelf/ ultra-premium Scotch. The comparison is merely to demonstrate how we already have stratified markets in other sectors. A lawyer with a JD, full Bar accreditation, and with no formal complaints would be in the ultra-premium legal services market. Concerning this individual carries such prestigious credentials it is only fair that a potential client pays a little more. Its only common sense, that you can’t get five-star quality on a fast-food budget. The loosening or elimination of credentialing requirements would reflect the same product diversity of other forms of goods and services. Making certain redundant forms of credentials voluntary would assist in developing budget-orientated sub-markets. The market for a fully credentialed and seasoned lawyer is very different than that of one for a less experienced and partially credentialed lawyer.
Another criticism that is likely to arise, such a market will invariably create a discrepancy in legal representation. More affluent people will be able to afford the ultra-premium lawyer and those of lesser means would be stuck with the ne’er-do-well defender. Who presumably graduated at the bottom of their class in law school. These same discrepancies exist in the current system. The innumerable accounts of the dismal quality of public defenders have been well discussed in public discourse. Even anything, there could be a possibility of disadvantaged defendants could benefit from lower prices. Then again, I am purely speculating. This insight makes me wonder if we should eliminate public defenders all together. Create a voucher system where defendants can take their locations to the private market to obtain a lawyer of their choosing. Odds are such a program would still be very costly. If anything, I would prefer to keep the government out of the legal services market.