Jonathan Wilson says that licensing protects the public and the courts from incompetent and immoral lawyers. Although I have proposed a limited and tentative defense of licensing based on motivating lawyers to participate in law reform, I question licensing laws designed to address the broad goals Jonathan articulates. Although licensing doubtless contributes to these goals, my questions are: how much, at what cost, and compared to what?

As for protecting clients, the problem with legal representation is that it's hard for the client to judge the lawyer, so the client needs some assurance of the lawyer’s quality. But how much assurance does a license provide? As a law professor it would be hard for me to deny that three years of law school do say something about legal competence. But passing a bar exam doesn't guarantee the lawyer’s willingness and ability years later to attend to clients' problems. A fitness investigation at the outset of a lawyer’s career is likely to reveal more about youthful indiscretions than about how the lawyer will face up to the temptations of an adult career. And keep in mind that, unlike a physician, a lawyer need not have any hands-on experience to be licensed.

Yet while a license arguably communicates little useful information, in many respects licensing sets too high a bar. How much legal history, philosophy and economics, to name a few of the subjects students learn in law school, does a lawyer need to handle a real estate conveyance, to name one of the subjects few students learn in law school?

Because all this costly learning reduces the availability and raises the costs of legal advice, licensing hurts the poor and lower income people licensing it is supposed to help. Their only recourse may be self-help. I’m reminded here of a study showing that regulation of electricians increased electric shocks to do-it-yourselfers.

And remember that lawyer licensing turns regulation of the legal profession over to, guess who, the legal profession. In other words, it creates a legalized cartel. How likely is it that lawyers themselves will come up with precisely the regulation that protects the public and no more?

There are better ways to protect clients. Big law firms provide a strong reputational "bond" (see my article, Ethical Rules, Agency Costs and Law Firm Structure, 84 Virginia Law Review 1707 (1998)). Lawyers can be certified by private organizations, including existing bar associations, which can compete with each other by earning reputations for reliability. These are market-oriented, consumer-friendly, ways of dealing with information asymmetry. Private organizations could accommodate a variety of standards, suitable for the range of clients' needs. The main regulation that would be necessary in this market regime is protection against practitioners misrepresenting their level of certification.

What about protecting the courts from the unskilled? Here’s where the anti-litigation folks like Jonathan and the free marketers like me really seem to divide on lawyer licensing. Again I’m skeptical about how much help licensing can provide. After all, abusive litigation has been brought to us by licensed attorneys. Jonathan asks how “an unlicensed attorney, perhaps with no legal training [could] distinguish between those arguments that are valid and those that are not?” The answer is common sense. Only trained lawyers could come up with, and vigorously defend in court, the legal theories and clever tactics that litigation critics deplore. We're not going to get more ethics and common sense from beginning-of-career character and fitness exams. Licensing, which turns regulation over to the very people who got us into this mess, is not likely to be the best way out of it.

There are better ways to deal with excessive litigation. We could have stricter pleading rules, or require losers to pay winners’ fees. Or how about this: let anybody into court, but adopt a loser pays rule for parties that come into court represented by anything less than a lawyer with the highest possible trial certificate.

Even if only licensing would effectively deal with this problem, the licensing scheme should be designed specifically to protect the courts. Instead of requiring the same all-purpose license to handle a real estate transaction and to prosecute a billion-dollar class action, we could have a special licensing law for courtroom practice, backed by tight regulation of trial lawyers’ conduct – something like the traditional barrister/solicitor distinction in the UK.

As I noted above, I don’t propose completely eliminating lawyer licensing. My limited licensing proposal would not impose high legal representation costs on those who can least afford them. Moreover, even without a broad licensing requirement, there would (I certainly hope!) be a significant demand for trained legal professionals. The difference is that the market, and not the legal profession itself, would determine the extent of that demand.

As Jonathan pointed out, the pro-licensing folks won the WSJ poll on lawyer licensing by around 60-40. That’s not an impressive win given all the lawyers and other professionals who read the WSJ. There’s a lot of discontent with lawyers. The masses are ready to storm the citadel. The time has come to contemplate the end of the lawyers' cartel.