The attorney licensing system poorly serves those most in need of legal help. Some dimensions of this problem are relatively well-understood. Access-to-justice scholarship about professional licensing has revealed that state barsFootnote 1 create high entry barriers and perpetuate a monolithic definition of the practice of law, both of which contribute to a shortage of lawyers in America.Footnote 2 Attorney scarcity has, in turn, increased the cost of professional services, leaving out of the market the clients most desperately in need of a lawyer – the rural poor, indigent defendants, accident victims, children, older adults, and immigrants.Footnote 3 The Sixth Amendment right to criminal defense counsel and the court appointment process have tempered this effect for some clients. But for other clients – like immigrants and accident victims – there is no safety net at all. Yet in the face of these shortages, state bars have done little to reform licensure with an eye toward access.Footnote 4
This conventional account of how the attorney licensing system fails needy clients is accurate but incomplete. In fact, the state of attorney licensure and access to justice is even worse than many scholars recognize because lawyer licensing is not only over-regulatory but under-regulatory in ways that also harm low-income clients. As strict as state bars are when it comes to entry requirements and ethics rules, they are lax when it comes to professional discipline. In this sense, the lawyer licensing system is hypocritical. In rulemaking, it appears to place attorney quality and public protection above all else, including access to justice. Yet when it comes to discipline, the system puts public protection in the back seat, content to leave unethical and incompetent lawyers in the profession and allow market forces to push them toward the neediest clients.
Every year, thousands of lawyers temporarily lose their ability to practice law or have it significantly curtailed because they have engaged in the unethical or incompetent practice of law.Footnote 5 This roster of problematic lawyers is underinclusive; professional discipline as meted out by licensing agencies is notoriously lax, slow, and opaque, and it likely only catches the worst of the worst in its net.Footnote 6 Thus, the records of public discipline reflect some of the most serious sins a lawyer can commit: conversion of client funds, exchanging sex for services, and severe client neglect. Yet only a fraction of these attorneys lose their ability to practice law.Footnote 7 Far more common are reprimands, probation, and suspensions that allow an attorney to return to practice, even for offenses that suggest that the offending lawyer’s judgment or competency remains in serious doubt.
Where do those attorneys turn for work after having gotten in trouble for serious professional misconduct? The short answer is it’s a mystery. Scholars have for years lamented the lack of data about which lawyers are disciplined and why.Footnote 8 This chapter, however, draws on the limited data available to assert the hypothesis that the disciplinary process drives the profession’s most problematic providers into solo and court-appointed practice, where they are likely to serve the underserved. This chapter further argues that using the profession’s bad apples to bridge the access-to-justice gap is problematic not only because it matches the unethical and incompetent with those least able to protect themselves or change attorneys, but also because solo and small-firm work – where supervision is virtually nonexistent – presents unique incentives and opportunities to behave unethically.
If, indeed, the most unethical and incompetent lawyers are being pushed by market forces toward the neediest of clients, the solution cannot be merely to tighten up attorney discipline. This will further contribute to the attorney shortage problem for which indigent clients suffer the worst consequences. Rather, if the licensing system is to be reformed in a way that meaningfully improves access to justice in America, both problems – the ways in which it is over-regulatory and under-regulatory – need to be addressed simultaneously. Arguments for how to increase the supply of lawyers have been made elsewhere. This chapter concludes by sketching some reforms that would meaningfully ensure that supply remains free from providers who have shown themselves to be unfit.
3.1 Too Few Lawyers
It is by now well-documented that the United States has a severe access-to-justice problem.Footnote 9 A 2022 report from the Legal Services Corporation found that low-income Americans do not get enough legal help for 92 percent of the civil justice issues that affect them.Footnote 10 In most civil cases in state court, at least one party has no lawyer;Footnote 11 in cases involving debt collection, family law, and landlord–tenant cases, well over 90 percent of cases involve at least one pro se litigant.Footnote 12 The rural poor are especially bad off. For example, in Georgia, where 70 percent of lawyers work in or near Atlanta, nearly half the state’s counties have fewer than ten active lawyers. Five counties have none at all.Footnote 13
Part of the problem lies with inadequate governmental assistance. The constitutional right to an attorney paid by the government only exists in the criminal context; federal and state funding for legal aid in civil matters is woefully inadequate,Footnote 14 and out of step with other developed countries.Footnote 15 Lack of free and reduced-fee services, however, is only half of the story. The other half of the problem lies with a regulatory structure that creates a scarcity of legal services – and, in turn, increases the cost of services beyond reach of low- and middle-income clients. There are many jokes about America having too many lawyers, but in fact it would seem we have too few.
3.1.1 The Bar Exam
Scarcity of legal help is perpetuated by a regulatory system that erects high barriers to entry. For decades, the legal profession has controlled entry by requiring an extensive education – about two years longer than in similar countries – that can cost over $100,000. The bar has also held firm to a requirement that lawyers pass an exam that is so difficult that, in some states, passage rates do not rise above 50 percent. For many access-to-justice advocates, it is this examination requirement that represents the most serious and least justifiable barrier to entry into a profession that cannot keep up with demand.Footnote 16
Bar exams restrict entry into the profession in obvious ways – by excluding from practice the 40 percent who fail any given administration.Footnote 17 But bar exams also restrict professional entry in a less observable way by acting as a deterrent to would-be lawyers who are risk averse and would prefer not to invest in an expensive legal education without knowing that they will ever be able to practice. It also acts as a deterrent to people who cannot afford the several thousands of dollars of test prep classes and to candidates who know they perform badly on tests but would otherwise make good lawyers. A disproportionate number of candidates failing the bar are non-white applicants and those from underprivileged backgrounds.Footnote 18 The possibility that the bar exam is racially exclusive is problematic in itself, but its effect on access to justice is particularly troubling because non-white lawyers and those from low- and middle-income backgrounds are especially likely to serve the underserved.Footnote 19
For all these reasons, some access-to-justice advocates have been beating the drum for the elimination of the bar exam as a way of both increasing the supply of lawyers and diversifying that supply. These scholars point to evidence in Wisconsin, where graduates of in-state law schools can become licensed without taking an exam, showing that disciplinary rates between lawyers who entered the profession with and without taking the bar are nearly identical.Footnote 20 Bar exam results are closely correlated with performance in law school, suggesting that the exam, as a predictor of future performance as a lawyer, offers no additional information beyond what is already known about the applicant.
3.1.2 Unlicensed Practice of Law
Another feature of legal professional regulation that contributes to the shortage of services is the capacious and vague definition of the “practice of law.” The unauthorized practice of law (UPL) is a crime in most states,Footnote 21 yet licensing authorities do little to define it other than circularly, as “what lawyers do.”Footnote 22 A definition must therefore be gleaned from cases finding nonlawyers-lia-ble for performing various tasks – such as telling someone the appropriate form to file or describing the current state of the law. The lack of clarity on what is and is not the practice of law has had a chilling effect on nonlawyers wanting to help someone with a legal issue. One scholar writes, “[a]t a time when we desperately need more people to deliver legal services to individuals and small businesses, the foundational rule of our legal system tells anyone who is not a lawyer: ‘Don’t you dare lend a hand.’”Footnote 23 The prohibition on UPL also deters members of related professions, like accountants and real estate professionals, from walking close to the line of legal practice in ways that make their services less efficient and effective. And sometimes these professionals are far more expert about the legal questions than a general practice lawyer would be.Footnote 24
For low- and middle-income clients, the prohibition on UPL, vaguely defined, is especially unfortunate. Hybrid service models providing one-stop shops for clients seeking help with issues that cut across professional boundaries – like housing, immigration, debt, and personal injury (PI) – are innovative ways to reach clients who are otherwise forced to go without representation. Requiring advisors to have separate licenses in law, medicine, and accounting makes these models more expensive if not impossible. Even other legal professionals such as judges and court personnel, who may be especially well-positioned to help low-income clients, are forbidden from providing legal advice.Footnote 25 And a capacious definition of the practice of law is bad for low-income clients because it would seem to preclude online products that help pro se litigants represent themselves. For example, LegalZoom, a repository of forms and basic advice for clients representing themselves, has been sued in several states as violating UPL statutes. A similar problem is posed by rules that prohibit lawyers from working for nonlawyers and also allowing nonlawyers to share in the profits of their enterprise. Critics say this rule, ABA Model Rule 5.4, hinders promising new models for delivering legal services to needy clients.Footnote 26
3.1.3 Self-Regulation and the Scarcity of Legal Services
For access-to-justice advocates, the cause behind these overly strict regulations that limit legal services is clear: state bars acting as self-regulators of the profession.Footnote 27 State supreme courts hold the authority to license lawyers, which they delegate either to the state bar association or to a nominal state agency that is, for all intents and purposes, an arm of the state bar association. These regulators sometimes include nonlawyer individuals on the panels, but they are never in the majority. Practice rules, canons of ethics, and entry criteria are promulgated by the state supreme court – in other words, by more lawyers. This regulatory structure has led critics to observe that law is the most intensely self-regulatory of all the professions.Footnote 28
What do lawyers want for their own profession? They want rules that protect the public, both because they care about clients intrinsically and because bad lawyers erode public trust in the profession.Footnote 29 High entry barriers and restrictive practice rules protect the public by ensuring that lawyers are qualified and act in their clients’ interests. But regulatory red tape is also good for the legal profession for reasons that have nothing to do with public protection. Strict rules protect incumbent lawyers from competition and contribute to the profession’s prestige by ensuring that “not just anyone” can provide legal help. The downsides of too much regulation – attorney shortages and high prices for services – are less salient to incumbent professionals who want their profession to be exclusive and remunerative. Thus, attorneys picking their own entry barriers and ethics rules have an inherent conflict of interest between what’s good for the public and what’s good for the profession. In particular, we might expect lawyers regulating themselves to go too far in building barriers to entry and restricting competition. And that, it would seem, is exactly what has happened over more than a century of self-regulation.Footnote 30
Antitrust law, because it prohibits competitors from colluding to suppress competition, theoretically presents a way to curb the regulatory excesses of professional self-regulation.Footnote 31 This idea was put on the table by the US Supreme Court in 2015, when it held in FTC v. North Carolina Board of Dental ExaminersFootnote 32 that professional licensing boards must be “actively supervised” by the state to enjoy immunity from antitrust suits. In practice, however, North Carolina Dental has not led to widespread antitrust liability for professional boards, primarily because courts have been less-than-exacting in their tests for what qualifies as active supervision. And in law, antitrust liability is an even less useful tool to use against licensing authorities, where courts view bar regulatory activity as per se immune from suit. In Hoover v. Ronwin, for example, the Supreme Court held that law licensing decisions by state bars, agencies, and disciplinary authorities are actually, at bottom, decisions by that state’s supreme court.Footnote 33 As such, they are acts of the sovereign and enjoy full antitrust immunity, even if they are created by a self-regulating board or bar that isn’t supervised by the supreme court in any meaningful way.
Although antitrust law would see lawyers’ interests in public and professional protection as conflicting, attorneys tend to emphasize the ways in which they are aligned. Specifically, they argue that strict entry requirements, strong UPL statutes, and the prohibition on revenue sharing protect the public.Footnote 34 In at least one of these categories, they have some evidence to point to: A study has shown that poor performance on the bar exam is correlated with subsequent professional discipline.Footnote 35 For the others, defenders of the strict regulation of lawyers make theoretical arguments. They say that only lawyers are qualified to give legal advice, and so strongly enforcing UPL statutes protects the public from uninformed and dangerous advisors. They also argue that bans on revenue sharing between lawyers and nonlawyers improve service quality by preserving attorneys’ independent judgment.Footnote 36
But critics of the excesses of self-regulation among lawyers point out that the empirical correlation between bar performance and future discipline is minimal,Footnote 37 and that the benefits of strong UPL statutes and prohibitions on revenue sharing may theoretically benefit those who can afford lawyers, but they more concretely and demonstrably harm those who can’t.Footnote 38 To these critics, attorney self-regulation has resulted in a balance of regulation that can only be justified as protecting the public if we define the public as those with financial means.
3.2 Too Little Discipline, Too Light
The professional regulatory system for lawyers also fails low-income clients in a way that is less familiar than these arguments about regulation gone too far. State licensing authorities justify the heavy hand they take in restricting entry to the profession as protecting the public from lawyers who are either incompetent or unethical, or as is all too common, both. Yet for all the measures these regulators take to prevent theoretically bad providers from practicing law, they do very little to remove actually bad providers from the profession.
3.2.1 Procedural Defects of the Disciplinary System
The disciplinary process goes wrong right from the beginning. The system relies entirely on complaints to initiate an investigation into attorney misconduct. Such a reactive system has serious drawbacks. Clients are unlikely to complain about lawyer misconduct for the simple reason that they do not know misconduct when they see it;Footnote 39 indeed the difficulty of knowing whether you are receiving good or bad legal advice is one of the justifications for licensing lawyers in the first place. Even clients who know their lawyer has engaged in misconduct have to feel unhappy about it to complain, leaving out clients whose lawyers have helped them commit fraud or lied to a court on their behalf.Footnote 40 Next, a client must know where to go to complain.Footnote 41 Not all licensing authorities make this transparent, and some actively discourage the filing of complaints by providing ominous warnings on the online complaint form, such as warning that clients often misunderstand what constitutes acceptable practice of law. Others go further by saying that filing a complaint may expose the complainant to a lawsuit.Footnote 42 Finally, complainants must be willing to confront a professional system that is elite, hierarchical, and inherently litigious.
Relying on other lawyers to file complaints against their colleagues is a more promising avenue for catching bad practice in the sense that lawyers are better positioned to know malpractice when they see it and to know that the state bar exists and disciplines lawyers. But relying on tattling within a professional culture of closed ranks has not proved an effective way to detect misconduct, even with a bar-imposed ethical obligation to speak out against offending colleagues.Footnote 43
The complaints a licensing board receives are therefore likely to understate the number of problematic providers and the depth of their misconduct. Yet even on the complaints the boards do receive, they are reluctant to take public disciplinary action. Only about 3 percent of complaints result in any disciplinary action whatsoever.Footnote 44 About two-thirds of these actions are private warnings to the attorney with no public record.Footnote 45
Legal discipline, when it does happen, is slow. It is not uncommon for a licensing authority to take years between learning of misconduct and taking action against the attorney’s license to practice.Footnote 46 This delay is in part because of the extraordinary legal protections that lawyers have built for themselves into the disciplinary process. A license to practice law is a property right, and it cannot be taken away without due process. But in the context of lawyers, the process “due” has come to mean protections beyond those typical in an administrative hearing and approaching (if not exceeding) those afforded criminal defendants.Footnote 47
3.2.2 Too Many Second Chances
Thus, the lawyer disciplinary system takes action against too few lawyers, and too late. But when it comes to assuring access to quality lawyering for low-income clients, perhaps the most problematic feature of the legal disciplinary system is that it is too lenient, if inconsistently so,Footnote 48 even on providers it does manage to identify for professional discipline. Hard empirical data on the leniency of the legal disciplinary system is difficult to come by, but adding up the information we have paints a picture of a system that is driven by attorney rehabilitation, generous with second chances, and more focused on attorney welfare than public protection.
State bars have kept in practice attorneys whose conduct has called into question their honesty and character, key issues when applying for a license. For example, bars have kept in practice attorneys who have cheated on their taxes,Footnote 49 lied to the government,Footnote 50 and been convicted of major federal crimes involving dishonesty.Footnote 51 Especially problematic for low-income clients, state bars take a forgiving stance toward neglect of client matters,Footnote 52 even when they have ignored repeated complaints from indigent defendants about their appointed counsel’s refusal to communicate.Footnote 53
Perhaps these are venial sins for lawyers. Yet even for one of the legal profession’s cardinal sins – taking money from a client – second chances abound. For example, the state of Tennessee re-admitted Kevin Teets to the profession after he stole $5,454 from a nonprofit providing legal aid and other services to the homeless, for which he acted as treasurer. It took the disciplinary system four years to impose discipline, during which time Teets continued to practice. The Board of Professional Responsibility said his gambling addiction and remorse justified a light sanction in the form of a reprimand, but the Chancery Court imposed a brief suspension “to protect the integrity of the profession.” He was allowed to return to practice in 2020.Footnote 54 Similarly, the District of Columbia allowed Harnan Arneja to return to practice after using a settlement earmarked for his client’s hospital bills to pay his own bills and business operating expenses. The client, a Salvadoran refugee who spoke no English, received none of the settlement, nor did the hospital where he was treated for his injuries. The hospital later garnished the client’s wages to cover the debt. The District of Columbia Court of Appeals allowed Arneja to return to practice after a year, without any showing of rehabilitation or remorse.Footnote 55
Not even sexual abuse of a client is a guarantee of disbarment. For example, Oklahoma attorney Richard Stout was found to have asked one client for sexual photos of herself and sent sexually suggestive texts to another (and demanded that she delete them). Stout coerced a third client into having sex with him by offering her a reduced fee.Footnote 56 The client, a criminal defendant, reluctantly agreed because, as she told the board, she “was in a desperate situation.” The disciplinary authorities allowed him to return to practice after a three-month suspension.Footnote 57
The case of Ohio attorney Jason Allen Sarver presents an extreme case of licensing authority laxity in sex abuse cases. By the time Sarver’s disciplinary case appeared before the licensing authority, Sarver had been criminally charged for repeatedly coercing sex from a defendant he was appointed to represent. The client had agreed to testify against him in exchange for a reduced plea offer for her own criminal charges, a fact that Sarver’s disciplinary panel found mitigating. Its order stated: “[N]ot only was there no harm to the client but the client leveraged her relationship with [Sarver] to get a better plea deal.” Although the Ohio Supreme Court criticized this reasoning, it adopted the panel’s lenient stance by opting for a temporary suspension over disbarment.Footnote 58 A recent study of attorney discipline finds that cases like Sarver’s and Stout’s are not aberrations: “too many attorneys have sexually abused and harassed their clients with relative impunity and returned to the profession with little to no additional oversight, limitations, or safeguards against future abuses.”Footnote 59
There is plenty more anecdotal evidence of inappropriately lax disciplinary decisions about lawyer misconduct. And although more empirical research is badly needed, the few systematic studies that have been done on attorney discipline show the same thing. Professor Gillers’ study of five years of disciplinary cases from New York revealed a system that was “deficient in design and operation.”Footnote 60 He showed that its decisions were too light, often focusing on mitigating factors that might explain the behavior but not why it was unlikely to recur and harm clients. Likewise, Professor Michael Frisch studied the disciplinary decisions of the District of Columbia and found that the decisions were too light to protect the public.Footnote 61
Gillers’ and Frisch’s studies use a commonsense definition of “too light” discipline,Footnote 62 but we might also want a more rigorous and objective measure of whether attorney discipline is working for the public. Here, the limited information we have about how often disciplined attorneys reappear before the disciplinary authorities suggests that recidivism after bar discipline is high.Footnote 63 Somewhere between one-third and half of publicly disciplined attorneys go on to receive a second round of board discipline, and almost a quarter are eventually disbarred.Footnote 64 Put another way, a disciplined attorney is thirty times more likely to get in trouble with a licensing board in the five-year period following his or her initial discipline and one-quarter of all lawyers with a disciplinary history are on their way to losing their license altogether.Footnote 65 (Both Teets, who embezzled from the homeless, and Sarver, whose sexual abuse was “leveraged” by his client into a plea deal, went on to reoffend.) Even “capital punishment” for lawyers – disbarment – is temporary in most states and may present an opportunity to reoffend.Footnote 66 Rates of repeat discipline are so high that several states have had to implement a “three strikes” rule for its frequent flyers.Footnote 67
3.2.3 Self-Regulation and a Forgiving System of Discipline
Again, self-regulation may be to blame for too-light discipline, as has been suggested by many scholars.Footnote 68 Why, exactly, might lawyers go easy on their peers? First, and most obviously, lawyers regulating themselves may identify with the accused. Lawyers, knowing that their own practice is far from perfect, may feel a bit of “there-but-for-the-grace-of-God-go-I” in making disciplinary decisions.Footnote 69 Here, self-regulating lawyers may apply a sort of “golden rule” and treat their peers as they would want to be treated when facing a wrongful accusation.
Second, lawyers may feel the need to protect their profession, as a general matter, from second-guessing by outside voices, even (or especially) if those voices are clients. Professor Frisch concluded that the disciplinary system evinced an “institutional hostility to both [the lawyers prosecuting disciplinary cases] and victims of lawyer misconduct.”Footnote 70 Sociologists emphasize the importance of autonomy in establishing professional identity,Footnote 71 and governmental incursions on that, in the form of a licensure action, may be viewed as encroachments on the professional domain.
Finally, lawyers regulating themselves may be especially receptive to narratives about their peers’ addiction and mental health struggles.Footnote 72 Indeed, self-regulating boards and bars rely heavily on lawyer assistance programs in the disciplinary process, and many states exempt lawyers from the requirement that they report a colleague’s misconduct if that colleague is already involved in a state assistance program.Footnote 73 Lawyers regulating themselves usually view addiction as a mitigating fact, and addiction was argued by the defense in both the Teets and Stout cases (Teets used the money he stole from the nonprofit to feed his gambling addiction; Stout was evidently addicted to sex). It is unclear, however, that an attorney who has stolen from or sexually abused his clients is a safer lawyer because he did so in the grips of addiction.Footnote 74 Disciplinary orders inspired by the idea that an attorney is sick, not unfit, sometimes miss larger issues of ethics and competence. For example, Oklahoma’s condition that Stout not accept female clients overlooks the broader – and profound – lack of judgment it takes to trade your services for sex.
Ading it up, scholars of the profession are essentially unanimous in finding the self-regulatory legal disciplinary system lacking.Footnote 75 It doesnot detect or punish most wrongdoing at all, and when it does act, it is too little, too late. The system is set up to re-admit dangerous, unethical, and incompetent providers in the profession – the likes of which would probably never clear the bar for admission in the first place.
3.3 The Fallen Lawyer
What happens when an inadequate supply of professionals, containing a significant number of providers known to be incompetent or unethical, encounters a market for services where some clients are well-heeled, savvy, and able to choose – and others demonstrably aren’t? Little is known for sure about how this labor market works, but all signs point to the conclusion that the profession’s most problematic providers end up serving the country’s neediest clients.
3.3.1 Discipline and Small Practice Settings
Public discipline can have severe consequences for an attorney’s career. States vary in their systems of disclosure, but often disciplinary authorities publish their decisions in some form. The transparency of this system could be better – there is no easy-to-use, reliable, national repository of lawyer information, so employers and clients have to search state-by-state. Some states do not offer searchable databases where one might look up a lawyer’s disciplinary history by name or bar number, rather one must sift through years of newsletters and press releases to find an attorney of interest. And public descriptions of the facts underlying discipline can be elliptical, to say the least.Footnote 76
The transparency, such as it is, does seem to have an effect on an attorney’s professional prospects, at least with employers like law firms. In a forthcoming study, economist and law professor Kyle Rozema studied the effect of public discipline on the likelihood that a lawyer would separate from his or her law firm.Footnote 77 He found that the rate of separation from law firms during an eight-year period was significantly higher for attorneys who received public discipline during that time. The effect was particularly strong for mid-career lawyers at mid-size and large firms, where disciplined lawyers left their firms at rates 81 percent and 76 percent higher than their non-disciplined peers. Relatedly, his study found that firms of more than one lawyer were net exporters of disciplined attorneys. Yet the study also found that discipline does not decrease the likelihood that lawyers are reemployed after separation. While public discipline changes your professional prospects, it does not end them.
Where do these lawyers go? The rest of Professor Rozema’s analysis completes the picture of a disciplined lawyer’s professional trajectory: Discipline makes it more likely that a lawyer will go on to start a solo practice. In fact, he found that 12 percent of solo practice lawyers with a disciplinary record moved into solo practice after discipline. He also found support for the idea that discipline makes it hard to get out of solo practice and join a firm. As for small firms (defined as fewer than ten lawyers), Rozema found that disciplined attorneys tended to cluster together in a subset of firms with a high tolerance for disciplinary records.
These new data enrich the existing statistics showing high rates of discipline among solo and small-firm practitioners (and correspondingly low numbers of disciplined attorneys at large firms). In the years 2000 and 2001, 78 percent of disciplinary decisions against attorneys in California were against solo practitioners, even though they accounted for only 23 percent of the state’s attorneys. Similarly, in Texas, lawyers working alone or in firms with fewer than five partners accounted for 59 percent of all lawyers but made up 98 percent of disciplinary cases.Footnote 78 Data from the last decades show the same thing.Footnote 79
How to interpret these statistics has long been disputed, because some of the reasons for high rates of discipline against solo and small-firm attorneys probably have nothing to do with attorney competence.Footnote 80 Licensing authorities may hold solo-practice bias, or, relatedly, large firms may have more leverage with the disciplinary authorities in disciplinary investigations. Additionally, clients of large law firms may be less likely to complain about their lawyers because they have the luxury of choice and may decide that firing their incompetent lawyer is punishment enough.Footnote 81 On the flip side of this argument, scholars have noted that the clients of solo practitioners, who tend to work in matters of great emotional importance, may be especially likely to complain to the bar.Footnote 82
Of course, the possibility that firm lawyers actually are more competent and ethical cannot be ruled out as a factor contributing to the disparity. By showing that discipline pushes firm lawyers into small-practice settings and locks them in, Professor Rozema’s study provides at least modest support for the idea that the bar’s disciplinary focus on small-practice attorneys is rational – it’s where the disciplinary system itself puts lawyers more likely to break the rules.Footnote 83
3.3.2 Solo Practitioners and the Underserved
The mechanics of this sorting process by which disciplined providers are pushed into solo practice are not hard to imagine, although little is known empirically. Firms making employment decisions are likely to be savvier about researching an attorney’s disciplinary history than an individual client hiring a solo practitioner. Indeed, most individual clients probably believe the fact of licensure is enough to ensure a lawyer’s minimum competence and ethicality; law firms know better. There is another reason – one perhaps more troubling from an access-to-justice perspective – why the labor market may be tilted toward solo practice for disciplined attorneys. Solo practitioners tend to represent clients and work in areas of legal practice for which there is great unmet demand.
The idea that solo practitioners serve the underserved has been recited at least as far back as 1970, when a student note in the Yale Law Journal made the following observation after remarking that the income of a solo practitioner is less than half of that of firm lawyers: “It is this large group of solo practitioners that serves the poor and much of the middle class, and its failure to perform this function effectively has led to renewed interest in the problems of ‘marginal practice.’”Footnote 84 Today, we know that solo practitioners are a diverse group, and some serve very sophisticated, high-paying clientele. But we also have data that suggest this kind of lawyer is not the modal solo or small-firm practitioner. When the practice of law is subdivided into twenty-three areas of practice, the four with the smallest average-sized firms are criminal, property, PI, and family law, all practice areas with limited access-to-justice and low-income clients. And there is evidence that a significant proportion of disciplined attorneys in these areas moved into them after receiving discipline. In contrast, some of the largest firms are those that handle intellectual property and antitrust matters, and these are among the biggest exporters of attorneys with professional discipline on their records.Footnote 85 These data are consistent with qualitative empirical work by Leslie Levin, who interviewed forty solo practitioners in the New York City area. She found that the most common areas of practice in her sample were “personal plight” legal needs, including family law, PI, workers’ compensation, and trusts and estates,Footnote 86 all areas lacking in adequate legal help.
Immigration law – where access to justice is particularly dire – has an extremely high proportion of solo- and small-firm practitioners. A study of immigration courts in New York state revealed that only 37 percent of immigrants secured representation in their removal proceedings, and 90 percent of those clients were represented by a solo or small-firm practitioner.Footnote 87 Immigration law may be an especially attractive practice area for attorneys with a disciplinary record not only because of the large unmet demand but also because foreign-born and non-English-speaking clients are especially unlikely to learn about their attorney’s past bar discipline. Moreover, the overall quality of the immigration bar, as revealed by a survey of immigration judges, is deplorable.Footnote 88 The prevalence of attorneys with disciplinary histories, though still likely to be only a fraction of immigration attorneys, may contribute to this state of affairs.
Another area of practice that may be attractive to disciplined practitioners is PI. Like immigration lawyers, PI attorneys tend to serve unsophisticated, low-income clients who are not repeat players. We have only anecdotal evidence about the rate of discipline among PI lawyersFootnote 89 (and even that evidence concerns lawyers who received discipline because of their work in PI, not lawyers who turned to PI after discipline), but we do know they tend to work in solo or small-firm settings.Footnote 90 And PI law would seem to represent a financial opportunity to disciplined lawyers looking for clients who won’t learn about their history, don’t care, or don’t feel they have a meaningful choice of attorney.Footnote 91
Some clients literally have no choice at all. Courts will often appoint an attorney to represent a client unable to afford a private lawyer. Courts must do this for indigent criminal defendants in cases where there is no public defender’s office, or where an existing public defender’s office has a conflict of interest. Courts will also appoint lawyers for children, the mentally ill and incompetent, and respondents facing termination of parental rights. We know very little about the proportion of disciplined attorneys taking court appointments, but even without systematic data about appointed attorneys, we can make an educated guess about whether disciplined lawyers gravitate toward this work.
First, court-appointed lawyers are probably drawn disproportionately from solo and small-firm practice, a group especially likely to contain disciplined providers. Second, we know that courts have difficulty – sometimes extreme difficulty – finding attorneys who will take appointed cases because of the abysmally low reimbursement rates,Footnote 92 implying that courts may need to scrape the bottom of the barrel. We also know that appointed criminal defense attorneys underperform salaried public defenders and private counsel.Footnote 93 The difference is particularly stark in capital defense, where defendants represented by an appointed attorney are twice as likely to be sentenced to death than those with private counsel.Footnote 94 Perhaps relatedly, several studies have shown that among lawyers whose clients were sent to death row, professional disciplinary rates are extremely high – in Texas, one in four.Footnote 95
3.3.3 Why It Matters
If indeed lawyers with a disciplinary record gravitate toward the populations of clients who typically can’t afford legal services, is that a problem? After all, the market for legal services is just that, and sorting providers and clients according to professional strength on the one hand, and ability to pay on the other, is inevitable in any market. According to Adam Smith’s “invisible hand” theory, it’s also efficient. As the saying goes, “you get what you pay for,” in legal services and in everything else.Footnote 96
It is true that any market will feature a sorting mechanism by which the most desirable providers go to the highest-paying clients. But professional licensure is supposed to blunt these forces of capitalism by creating a floor below which providers cannot pass, to assure any client, low-income or otherwise, that their lawyer meets a minimum standard. Incompetent lawyers can create significant harm, both to their clients and society at large.Footnote 97 The licensure system cannot have it both ways. State bars should not be allowed to use ethics and entry rules to fetter the market for legal services in the name of minimum competency, and then abandon their obligation to hold the line against unethical and incompetent providers and allow market forces to shunt these providers toward the clients most harmed by the very scarcity they created in the first place.
There are other reasons to condemn a system that pushes bad apples toward solo and appointed practice. First, the economics of solo practice may contribute to unethical practice, creating a vicious cycle.Footnote 98 Serving the underserved, especially as an appointed lawyer, means accepting relatively little money for each case. The most efficient way to make ends meet, therefore, is to run volume through your practice.
The most notable example of high-volume practice serving low-income clients can be found in PI,Footnote 99 but the phenomenon of the legal mill is not unique to PI. Similar incentives can be found wherever lawyers are effectively paid by the case, rather than an hourly rate. Many attorneys serving low-income clients price their services by the piece – $1,000 for a driving under the influence (DUI) defense; $595 for a divorce.Footnote 100 The same incentives may be present in appointed work, where caps on fees turn nominally hourly rates into a pay-by-the-case arrangement. For example, Tennessee caps the total an attorney appointed in a murder case can bill at $3,000.Footnote 101 The most lucrative way to make a living as a court-appointed lawyer is to run it like a settlement mill – to take on as many cases as possible, without performing extensive investigation or investing in much client interaction.Footnote 102 The twenty busiest court-appointed lawyers in Nashville, Tennessee, handle nearly 50 percent of the appointed work, each billing the courts, on average, for over two hundred matters a year. And at 10 percent, their rate of public discipline is several multiples of the average.Footnote 103 Putting attorneys who have shown themselves willing to cut corners into a practice environment where cutting corners is virtually required by the system is a recipe for recidivism.
Second, solo and appointed practice presents sexually abusive attorneys with opportunities to take advantage of particularly vulnerable clients. Attorney sexual abuse of a client almost invariably involves a power dynamic that goes beyond the typical attorney–client relationship. In every case reviewed for this chapter where an attorney coerced a client into sex, either the attorney was appointed to represent the client (so the client could not walk away from the representation) or the victim faced dire personal consequences (like losing her children or freedom), or both.Footnote 104 In the areas of legal practice with the widest access-to-justice gap, a sexually abusive attorney will find the most vulnerable of clients.
The final reason to be worried about a system that pushes problematic providers toward solo and small-firm work is that it severs the troubled lawyer from whatever supervision and accountability he or she may have at a firm. In solo work there is no structured mentoring, case review, hours reporting, or conflict disclosures. Essentially, there is no one to regulate a lawyer’s practice but the state bar itself, such as it is. Given the economic pressures, opportunities for abuse, and lack of supervision found outside of firm practice, it is not surprising that nearly half of disciplined lawyers find themselves back before the disciplinary authority that relegated them to solo practice in the first place.
3.4 Conclusion
In solving the problem of hypocrisy at the heart of lawyer licensing, the stakes are highest for those who have the least access to justice. As it stands, low- and middle-income clients suffer the most for a disciplinary system that keeps in practice dangerous, predatory, and incompetent lawyers. But single-minded reform aimed at cracking down on the profession’s bad apples could also hurt those same clients, either through false positives or by chilling innovative ways of delivering legal services that may end up in the crosshairs of an overactive disciplinary system. Solutions, therefore, should be synthetic.
First, the fetters of legal practice need to be loosened to allow for more access to justice. State bars should promulgate a clear definition of the practice of law that allows non-licensed advisors and other professionals to walk up to the line of legal practice without fear of bar sanction or criminal prosecution. The definition should only include tasks for which an elaborate legal education is required; whatever can be handled competently by a social worker, accountant, paralegal, court clerk, or administrative assistant should be excluded. State bars should get out of the business of strictly regulating the corporate form of legal practice and allow for more novel business models to reach clients in need of legal help. Self-help tools, like online forms and algorithmic legal advice, should be allowed to help pro se litigants learn their rights and make their arguments clearly and persuasively. States should build on their progress in streamlining the bar exam across states, and perhaps revisit the need for a bar exam altogether. And states and municipalities should expand access to justice by guaranteeing appointed representation in more civil matters,Footnote 105 with a rate-of-pay that would attract not only the providers at the bottom of the barrel. If we are to bridge the access gap in law, the supply of legal services needs to be expanded.
Second, the disciplinary system should be overhauled to ensure that supply is reasonably free of unfit lawyers. I have made a detailed proposal for how to fix the professional disciplinary system for other professions,Footnote 106 and its lessons can be imported here. States need to promulgate and adhere to disciplinary rules and sanction guidelines aimed at public protection. Specifically, the rules should make clear that clients cannot consent to sex with their attorneys in the course of representation, misappropriating client funds creates a presumption of disbarment, and client neglect, especially where it results in prejudice, is a serious offense. Addiction and other mental health issues, when resulting in actual client harm, should be seen as aggravating, not mitigating factors, especially in cases of misconduct like exchanging services for sex or stealing money to support an addiction.
The disciplinary system should be more transparent, investigative agencies fully funded and pro active, and complaints easy to file and immune from suit. Information about disciplined lawyers, including anonymized complaint data, should be easily accessible and centralized at the national level. At the same time, it’s also important to note that transparency can help only to the degree that someone has a choice of lawyer, which is often not the case for many clients with limited access to justice.
Above all, legal disciplinary authorities need to be more clear-eyed about the likelihood of recidivism and recognize that when a disciplined attorney reoffends, his victims are likely to be the rural poor, the mentally ill or incompetent, immigrants, and indigent defendants. To this end, the monopoly of lawyers over the disciplinary process should end, as self-regulation seems a likely contributor to lax professional discipline. Cases should be decided by panels that are not dominated by lawyers – other professionals and members of the community should have a say in defining competence and ethicality in the provision of legal services. This could be achieved by using a pool of hearing officers that are only one-third lawyers, who hear cases in panels reflecting that balance of expertise in law (one-third) and expertise in community and client legal needs (two-thirds). All hearing officers should be paid appropriately for their time and trained in the regulatory imperatives of the legal profession.
None of these ideas is especially radical, and most of them have been made before. Some have been on the table for many years. And yet little in the attorney disciplinary system has changed. On paper, most lawyers can agree that the system should protect the public from incompetence, abuse, and graft. Why, then, have we made little headway toward a fairer and safer system of attorney discipline? Because even the legal profession’s most vocal critics – lawyers themselves – are unwilling to give up self-regulation. For the most part, reform proposals have gone to the substance of professional rules and the procedure of their enforcement. These proposals have had little impact without changes to the institutional structure of professional regulation in law. Only once we are prepared to be held accountable to someone other than another lawyer will we confront the fact that the legal licensing system is designed not to meet the country’s overall demand for legal services but to meet the needs of the elite, and, above all else, the needs of the profession itself.
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