Children of a Lesser God: Lawyers, Economics, and the Systemic Corruption of the Legal Profession

Abstract

This essay focuses on the economics of law practice, the oversupply of lawyers, and the effects on the profession's ethical behaviour as a consequence of the saturation of the competitive fields of private law practice. The claim to principled self-regulation was always questionable but now is absurd. We should abandon the existing regulatory schemes - particularly removing control from lawyers and judges - if effective regulation is to have any chance in the competitive niches of the business of private law practice. The premise underlying this analysis is that the practice of law is a business and nothing but a business. Effective regulation of the business of law practice must take into account the diversity and dynamics of the distinct forms or dominant business models of the industry of law. As part of this analysis it is assumed that the aim of the private law business is to extract the maximum economic benefit from the available assets (clients) with the greatest efficiency and at the least cost to the business in terms of financial expenditure by the lawyer and efficient use of time to maximize earnings. The result is an irresolvable conflict between an "ethical" model of law practice that places the client at the center of the entire process and requires diligence, loyalty, communication, outcome evaluation, thorough preparation and effective advocacy, and a "business" model that focuses on the best economic outcomes for the lawyer and firm. Even though the business model clearly dominates we continue to pretend that the ethical model controls the interaction between lawyer and client. The result is that the entire regulatory system by which we purport to govern lawyers in order to protect the interests of clients is one that is poorly adapted to the real operating conditions of the practice of law as a business.