California Bar Journal
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Wholesale reform — not a mandatory bar — is needed
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George M. KrawThe 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.  

That’s not enough.

Simply reforming the State Bar isn’t 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 services.

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 talk.

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 aren’t 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 disciplines.

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 Bar’s 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.