Posts Tagged ‘American Bar Association’

https://cdn.morguefile.com/imageData/public/files/g/GromovatayaIrina/03/l/1458732114nc9vo.jpgIf the American Bar Association (ABA) is underwriting something — America’s lawyers be wary. This is the organization led a few years ago by an oblivious President with the stones to blame students for opting for law school in a declining economy — this while the selfsame was roundly criticized for its own considerable regulatory failings.

And despite having done more than its share to create the lawyer glut, the ABA stands around even now, in the words of one critic, “limp-wristed” while law schools race to the bottom repeatedly lowering LSAT admission scores trawling for matriculants as enrollments decline. Any wonder another commentator declares, “The ABA can’t be trusted”?

More recently, politically correct ABA do-gooders have recommended bar associations adopt a “speech code” for lawyers — the violation of which means discipline.

And just days ago, the ABA House of Delegates adopted a new model rule concerning continuing legal education, recommending in part that state bars uniformly impose a 15-hour minimum continuing legal education requirement per jurisdictional reporting period. As usual, the ABA trots out the self-serving claptrap offered without a scintilla of empirical proof that “MCLE continues to play a crucial role in maintaining public confidence in the legal profession and the rule of law and promoting the fair administration of justice.” Pretentious pretextual poppycock notwithstanding, left out as usual is the truth that MCLE mostly serves to line bar association coffers nationwide. Ka-ching!

Such was the context for the announcement of a pro bono survey project launched by the ABA last year. It was just rolled out in Arizona.

On its website, the ABA explains it offered “its pro bono survey instrument, free of charge, to states interested in studying various aspects of the profession’s pro bono culture.” One can only guess what that means although after welcoming survey-takers, the questionnaire reveals its intentions:

“You have been asked to participate in this survey so that we may gain a better understanding of legal services provided to low and moderate income people in your state. This is a nationwide effort to quantify and recognize the pro bono work provided by attorneys, as well as to understand the factors that encourage or discourage pro bono service. We are interested in the perspectives of attorneys who have provided such services as well as attorneys who have not.”

What the “better understanding” leads to, however, is another question. Otherwise, to the frequently asked question, “What are the states expected to do with the results?” — it answers:

The ABA encourages the state leadership teams to review the findings and collaborate to generate state program and policy recommendations. In the summer and fall of 2017, the ABA will facilitate conference calls with each of the participating states to review the findings and discuss recommendations.”

https://cdn.morguefile.com/imageData/public/files/j/Jamierodriguez37/03/l/1426633399eunhs.jpg Carrots turned cudgels.

Since I ignored the first email solicitation from the Arizona Bar CEO to take the survey, last week I received a reminder to “take a few minutes” to participate in “this worthy effort” along with “an incentive to complete the survey.” No further reminders necessary for this resolute non-participant.

Based on the time it took Nebraska lawyer survey participants to complete the survey, it’s anticipated it will take lawyers more than “a few minutes” since Nebraska participants took an average of 32 minutes to finish it. And ostensibly an anonymous survey, that anonymity flies out the window if Arizona Bar members elect the Bar’s incentive to “be included in a drawing for a $150.00 gift card.”

In 2014, the State Bar of Arizona dangled a $250 Visa gift card as the sole prize for contestants vying to create a 15-second Instagram video with the mandatory phrase, “Finish the ballot. Vote for the judges!” To the best of my knowledge, the Bar never disclosed the winner or the wining video most likely because of embarrassing sparse participation. More recently, the Bar offered another gift card incentive to induce participation in its triennial lawyer compensation survey.

Compulsory lawyer servitude.

Ever the jaundiced one, I suspect these surveys will be used to advance program and policy goals of those clamoring for mandatory pro bono. Their salivary glands have never stopped drooling ever since New York became the first state to mandate pro bono work.

In New York, the forced pro bono rule was inflicted on law school graduates as a condition for bar admission. New York bar applicants must perform 50 hours of pro bono work before they can be admitted and some day hope to earn a living as lawyers.

Unlike other professionals, lawyers inexplicably remain the sole special snowflakes compelled to belong to their trade associations as conditions to earn a living. And soon enough lawyers may be the solitary profession whose services should also be compulsorily given away.


Credits: Morguefile.com, no attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license.


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I recently attended a seminar where a lawyer-lobbyist opined that non-lawyers should not be lobbyists. Influence peddling, it seems, should be the sole province of lawyers. Not that much explanation was given. Perhaps none was needed. After all, most in attendance were lawyers. Somewhere in the lawyer DNA is genetically grafted an exaggerated belief that “Anything you can do I can do better; I can do anything better than you.” 

Not that it’s true — especially in lobbying where cunning, connections, comprehension and experience count as much if not more than a legal education. Nevertheless, those advocating the supposed advantages of lawyer-lobbyists over nonlawyer-lobbyists also sniff that “Nonlawyer lobbyists lack a system of obligatory ethics norms akin to the Rules of Professional Conduct.” Apparently it matters little that such self-serving smugness is undercut by the likes of former lawyer-lobbyist Jack Abramoff.

File:Theodoor Rombouts - Christ Driving the Money-changers from the Temple.jpg

Bottom line, for lawyers fiercely wedded to the medieval guild’s monopoly-has-its-privileges — free market competition sucks. Or to Ben Franklin’s “nothing can be said to be certain, except death and taxes” — add with certitude the protectionist instincts of lawyers.

The ABA takes the lead.

Under the sheltering cover of “ponderous, backward looking, and self-preserving” bar associations, licensure was the sine qua non to supposedly protect “the uninformed public against incompetence or dishonesty.” Or at least that’s what Professor Walter Gelhorn said in “The Abuse of Occupational Licensing”  where more significantly, he also pointed out how such pretextual public protection always has “the consequence that members of the licensed group become protected against competition from newcomers.”

Ah, the joys of monopoly or as Professor Gerard Clark explains in “Monopoly Power in Defense of the Status Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession,”

“Since its founding in 1878, the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power.”


Lawyer regulation to protect the public sounds good. But by regulating who can practice law, lawyers also maintain a monopoly on who provides legal services. The legal establishment accomplishes this by regulating the unauthorized practice of law (UPL) either by statute or court rule. But the rub is that bar association regulators have an inherent conflict of interest. On the one hand, they’re supposed to protect and serve the public by regulating lawyers. But at the same time, they function like trade associations promoting the legal profession’s common interests.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/m/meowzeroni/04/l/1397514359cws5o.jpgThese two purposes conflict because lawyers and the public often have different interests. When these interests conflict—such as when out-of-state lawyers or lower-cost legal services wish to compete with lawyers — lawyers use their regulatory powers to stop that competition.

Last year, for example, in the aftermath of the U.S. Supreme Court’s ruling against a protectionist North Carolina Dental Board, the State Bar of North Carolina settled its suit against LegalZoom. LegalZoom is now free to offer online document services and prepaid legal services plans to North Carolinians.

Here in Arizona, examples of lawyer interests trumping public interests include the Arizona State Bar’s efforts to stop realtors in the 1960s, legal document preparers in the 1990s, and out-of-state lawyers in the 2000s from offering services in Arizona.

When it comes to access to justice, those at the temple precincts mean access to just-us.


Credits: The governors of the guild of St. Luke, Haarlem, 1675 by Jan de Bray, Wikimedia Commons, public domain; Theodoor Rombouts, Christ Driving the Money-changers from the Temple, Wikimedia Commons, public domain; other photos via Morguefile.com, no attribution required.

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Crosslegged man drinking mug of coffeeReinvented journalist turned healthcare worker Edward Barrera wants to recreate himself — again. This time it’s via nascent fabulations of attending law school.

He said so in Southern California’s Pasadena Star-News, a newspaper not on my usual reading menu. But thanks to Internet aggregatorYahoo! News, I chanced on Barrera’s fatuously entitled essay, “Law school and combat.”

I’m still holding my nose from his brain infarctions, especially talk about “combat,” as though the law was bereft of combatants.

After reading, I was compelled to comment here and on his blog.

Man in a suit with boxing glovesBarrera wants to join in on the so-called “fun” he thinks a lawyer friend is having. By becoming a practicing lawyer, he imagines he’ll re-experience“the thrill of combat” he once got as a journalist.

Presumably, he’s no callow youth — despite the ‘visions of sugar plums dancing in his head.’

Yeats wrote, “The best lack all conviction, while the worst are full of passionate intensity.” So against my better judgment, I find myself rescinding an earlier vow to stop weighing in on law schools and their unconscionable hosing of students and graduates.

I do so perhaps, less from Barrera’s delusions or his invocation of the overworked oft ill-used Shakespearean quotation, “The first thing we do, let’s kill all the lawyers.” (To his inestimable credit, he pointed out the quote is usually out of context and misinterpreted).


More likely, I’m posting because I contemporaneously read one more law school dean’s self-interested prescription on fixing law schools and by extension — the 21st century legal profession.

File:Noaa-walrus22.jpgThis time, it was James Huffman, dean emeritus at Lewis & Clark Law School, who at least courageously confirmed the identity of the 800-kg. poop-making producer in the punch bowl — the American Bar Association (ABA).

business,business metaphors,businessmen,kneeling,males,men,metaphors,persons,pray,prayers,praying,prays,religions,worshippers,worshipping

The self-interested stakeholders inside law school academia are always too quick to offer self-serving solutions that safeguard sinecures, preserve privileges, and bless all their benefices . . . forever and ever, Amen.

But in his Wall Street Journal epistle, Perverse Incentives of the Lawyers Guild, Dean Huffman did at least state the obvious: “The ABA should start by looking within: The organization is a major source of the problem. Those large law-school faculties with some of the highest salaries in the academy, the palatial facilities, a persistent emphasis on theory instead of practical-skills training, and a limited reliance on online instruction have all been encouraged, if not mandated, by ABA regulations and the accreditation process.

“As often happens with regulatory systems, whether governmental or professional, the ABA accreditation process was long ago captured by legal education’s most influential stakeholders. ABA accreditation site-visit teams routinely include a dean, tenured classroom faculty, clinical faculty (historically untenured but now increasingly tenured, thanks to ABA requirements), a librarian, a university administrator and one judge or member of the practicing bar—but no students or consumers of legal services.”

Years ago, a high-end hotel executive described the problems cost-conscious innkeepers encountered from guests when they tried eliminating a room amenity — whether chocolate on a pillow or a packaged shower cap. “Once given, always expected,” he despairingly muttered.
Likewise, Dean Huffman’s proffered solution is no solution at all. It does nothing to disturb the entitled classes: avaricious law schools-turned-university-cash-cows; overpaid, under-worked tenured faculty; and high-level administrators ensconced in fancy facilities.

Dean Huffman instead looks elsewhere. He wants the ABA to release law schools from most current standards so that “the enormous intellectual power of their faculties” can sow innovations and make “a thousand flowers bloom.”

Oh, puh-leeze. This will merely wrest the keys away from the ones running the asylum and give them to the inmates instead.

Moreover, the dean emeritus forgets his own criticism of the insular ABA accreditation site-visit teams who do not deign to include “students or consumers of legal services” in their sacred process. Apparently, flowers never bloom from those infertile fields.

In sum, before considering law school, aspiring lawyers should first read Tucker Max’s list of “The 6 Wrong Reasons to Go to Law School” at the Huffington Post’s: “Why You Should Not Go to Law School.”

And deans, emeriti or not, should revisit law professor Brian Tamanaha’s apostasy, “How to Make Law School Affordable.

The former will be prudential simethicone for mental vapors. And the latter will provide the proper prescription, which is to inject overdue rationality into a madhouse.

Recast, then, the busted business model and reform the economics. Rein in the money. And align the incentives so that besides a commercial interest in their own prosperity, law schools finally have an accountable stake in the post-graduation success of their students.


Photo Credits: “Large walrus on the ice – Odobenus rosmarus divergens – contemplating the photographer – Alaska, Bering Sea,” by Captain Budd Christman, NOAA Corps, at Wikipedia Commons, public domain; Antelope Valley Poppy Preserve by Rennett Stowe at Flickr via Creative Commons-license requiring attribution; The Madhouse by Francisco Goya, at Wikipedia Commons, public domain.

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