The State Bar has reduced dues, reduced MCLE hours, cut loose the
Conference of Delegates, abandoned the ill-advised Brosterhous appeal and agreed
to reform its election procedures.
Thats not enough.
Simply reforming the State Bar isnt going to fix its basic
defect. Mandatory bars are an anachronism, a product of 19th- and early 20th-century
conditions vastly different from those of today.
Lawyers are no longer the only professionals who can provide legal
State Bar apologists claim that a legal profession cannot exist
without a mandatory bar that preserves the core values of the profession.
In the meantime, accountants, consultants, actuaries, paralegals and
others eagerly provide legal services to consumers with or without the assistance of bar
card-carrying Juris Doctors. People who have never set foot in a law school now routinely
do much of what was once considered lawyers work.
I wonder when the last time was a client asked an accountant
preparing an estate plan or a paralegal drafting marital dissolution documents, Say,
do you subscribe to the core values of the legal profession?
They are more likely to ask, Can you do this work
successfully? and How much will it cost?
Such are the core values of clients, who remain disappointingly
results- and cost-oriented.
Some Bar apologists delude themselves that lawyers can claim a
continued monopoly on legal services by loud commitments to vague concepts like
professional competence or access to justice.
To most people this sounds like self-righteous, self-serving double
Passing a bar exam does not guarantee the competence of
any individual lawyer in a particular area. Many non-lawyer competitors are as competent
as attorneys who do the same work.
And a proclaimed lawyer commitment to access of justice
runs smack dab into the inconvenient fact that we attorneys are often the chief economic
beneficiaries of the vast regulatory schemes that make litigation and other legal services
so expensive and thereby so inaccessible.
The antidote to this state of affairs will not be a new entitlement
that guarantees each American his or her own attorney.
Professionals from outside the legal profession are creating new
institutions like multidisciplinary practices that accelerate transformation of what we
now call the practice of law. Critics of the current adversary system are
groping towards a wholesale revamping of dispute resolution, which is why you hear
juxtapositions like collaboration v. litigation in places like Silicon Valley.
Lawyers arent about to become extinct as a profession. But
attorneys are inevitably going to be engaged by broader social and economic forces set
loose by globalization, information technology and the merging of professional
Bar associations with regulatory authority can delay but not prevent
transformation of the legal profession.
Lawyers operating through law firms are gradually becoming less
important than lawyers working collaboratively with other professionals. To the extent
that regulation and qualification of these new associations are deemed necessary, those
tasks will not be done by lawyer-only agencies like the State Bar.
In the broader scheme of things, the State Bars continuing
civil war is simply a sideshow, but an important one. The issues go beyond bar governance,
political lobbying and self-regulation, although the bar has proven indisposed to
self-improvement absent continuous prodding by its critics.
Sooner or later, bar supporters will be forced to recognize that a
closed guild legal profession overseen by a mandatory State Bar is neither
sustainable nor in the public interest. The mandatory bar is an institution whose time
already has passed.
George M. Kraw is a lawyer
in San Jose.