The Legal Labor Cartel

“The truth is that legislatures and Courts have made lawyers a privileged class, and have thus given them facilities, of which they have availed themselves, for entering into combinations hostile, at least to the interests, if not to the rights, of the community – such as to keep up prices, and shut out competitors. The natural result of such combinations also is, that the mass of the members will do more or less to screen individuals from suspicion. The consequence is, that the people have imbibed an extreme jealousy towards them…. Now if the profession were thrown open to all, lawyers would no longer be a privileged class – they probably could no longer enter into combinations that would be of any avail to them, and the jealousy of the people towards them would be at an end.” Lysander Spooner, To the Members of the Legislature of Massachusetts, August 26, 1835.

Lawyers, like doctors, are part of a class of people who must join what amounts to a labor cartel in order to lawfully ply their trade. Bar associations have territories, and they drive up the price of legal services in those territories by limiting entry by service providers. Talk of the lawyer’s “professional responsibility to provide legal services to those unable to pay” stems from guilt about this anti-competitive status quo in the legal services market. Why should lawyers owe anyone relief if they didn’t first create the burden to be relieved?

Now, this is not to say that lawyers ought not engage in pro bono work–to the contrary, making a habit of being generous towards others can be an ennobling exercise. But it is hardly charitable to bang out the recommended fifty hours of pro bono work annually and then to wash one’s hands of the labor cartel’s negative externalities. Nothing could be more self-serving than assuaging one’s own guilt.

Lawyers shouldn’t have to feel guilty. The use of intercessories for dispute resolution is a hallmark of civilized societies throughout history. A careful, conscientious advocate and counselor has no reason to be ashamed of his vocation per se. The reason lawyers are resented is in large part because many people see that lawyers have special access to the levers of the State and jealously control that access.

Specialization and the division of labor are crucial in a free society of any scale, and certainly some individuals are better equipped than others to advocate a position before a judicial body. However, we are all best served when specialists are subjected to the rigors of competition: consumers are unburdened by artificial price inflation and are empowered to make informed decisions, while those practitioners with particularly sharp skills are most reliably rewarded for their excellence.

Promoting a free market in legal services, where lawyers truly compete and can fully differentiate their services from those of their competitors, is the surest way to reduce the ranks of those who are “unable to pay” for an advocate. Competition drives prices down. Cartels drive them up.

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