Lawyer self-regulation and the public interest: a reflection

Abstract

Lawyers in the US and the UK justify their self-regulatory powers as serving the public interest, a claim that prominent sociologists in both countries long credulously accepted. But there are ample reasons for skepticism. Western societies are founded on the belief that individuals are self-interested. Free markets allow them to maximise utility. Free alienability of property ensures it will be put to its best and highest use. The laws of copyright, patent and trade mark protect intellectual property in order to encourage creativity. Meritocratic educational systems motivate students to acquire knowledge and skills. We seek to align the interests of lawyers and clients, for instance, through contingent or conditional fees; because this is not always possible, however, ethical rules require lawyers to avoid conflicts of interest. Liberal democracies allow citizens to shape governmental action through interest group pluralism. The legal system promotes justice by encouraging the adversarial clash of zealous advocates. Laws respect individual autonomy through doctrines of informed consent, the right to die, and privacy. Competition is the driving force behind artistic expression and athletic contests. And our understanding of international relations is dominated by the realist view that every nation does and should pursue its self-interest. Given all this, why expect the legal profession to be different? History documents the self-interest of lawyer self-regulation. The primary challenge for any occupation seeking to become a profession is to control supply. The first task is to restrict the production of producers. Civil law professions, like the notary, achieved the ultimate protection: a numerus clausus (in which positions often were handed down from father to son). Common lawyers had to use other devices. As Weber noted, examinations became the dominant entry barrier in the twentieth century. These have an unproven – and arguably dubious – relationship to the knowledge lawyers actually utilise in their daily practice (in the language of psychologists: they have never been validated). Let me offer some exotic