Then there are
the unauthorized practice of law regulations. In
thirty-seven jurisdictions, it is a misdemeanor for
a nonlawyer to practice law (and “practicing law” is
construed to include a large number of activities
that on the surface do not require legal training,
such as assisting people in filling out
do-it-yourself divorce forms); seven other
jurisdictions have formalized the power of courts to
cite unauthorized practitioners for contempt.
By restricting the practice of law to members of the
bar, of course, a professional monopoly is
guaranteed and a higher-than-otherwise level of
lawyers’ fees is maintained. The situation is
exacerbated because courts usually delegate to bar
committees the power to investigate and initiate
actions against unauthorized practitioners; this
striking conflict of interest has resulted in some
amazing cases of turf protection against rather
innocent (cut-rate) interlopers.
In 1974,
two law school deans wrote a report for the U.S.
Senate Judiciary Committee suggesting that
deregulation would be a plausible way to reduce the
costs of legal services;
but such schemes have been strenuously (and
understandably) opposed by the bar. The official
reason for unauthorized practice regulations is to
protect consumers from the legal equivalent of
Laetrile and orgone boxes. But Rhode’s survey of
unauthorized practice enforcement showed that in
1979, only 2 percent of all inquiries,
investigations, and complaints about unauthorized
practice originated from consumers and involved
specific consumer injury; and, of these, 19 percent
concerned laymen pretending to be attorneys. In
fact, only twenty-two incidents out of 1188
concerned consumer complaints about unauthorized
alternatives to lawyers (as opposed to phony
lawyers).
Of course, it could be argued that this low figure
is the result of the deterrent effect of the
unauthorized practice regulations currently in
place; but, since 1166 bar-initiated actions were
reported, such an argument would be hard to make
out, because the deterrent does not seem to be
generally effective. The clear conclusion is that
unauthorized practice regulations ―state actions―
prop up legal fees without serving any other
significant public interest.