You’re gonna have to serve somebody.
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody
Bob Dylan: Gotta Serve Somebody
State Bar Associations need to decide who they serve and then develop regulations that actually serve that group. Too frequently, Bar Association try to serve their lawyer members and give lip service to the public interest in access to justice.
I learned a new term this week courtesy of Leo LaPorte, aka the TechGuy. LaPorte hosts weekly radio shows on Saturdays and Sundays and then pushes the shows out to his podcasts. I like to listen to his shows since they are full of tech news and developments unfiltered through the lens of legal tech.
On last Saturday’s show, LaPorte called attention to the Facebook ads that appeared with various weekend football games. The gist of the ads, which featured Mark Zuckerberg as a spokesperson, is that regulation is good and there needs to be more of it.
When I first saw the ads, I frankly didn’t pay much attention. I thought maybe I misheard: why would Zuck want more regulation? I really didn’t give it much thought since I was more interested in watching football and eating turkey (not necessarily in that order!).
Regulatory capture occurs when a public authority charged with regulating an industry in the public interest comes to identify the public interest with the interests of producers in the industry, rather than the i the general public
But LaPorte clarified that what Zuck really was lobbying for was more regulation that helps Facebook (excuse me, Meta) and puts up barriers to competitors like TikTok, etc. There’s actually a term for this: regulatory capture. According to Oxford, regulatory capture occurs “when a public authority charged with regulating an industry in the public interest comes to identify the public interest with the interests of producers in the industry, rather than the interests of its customers, or the general public.”
Wikipedia says regulatory capture:
Is a form of corruption of authority that occurs when a political entity, policymaker, or regulator is co-opted to serve the commercial, ideological, or political interests of a minor constituency, such as a particular geographic area, industry, profession, or ideological group. When regulatory capture occurs, a special interest is prioritized over the general interests of the public, leading to a net loss for society…[It] “occurs when most or all of the benefits of a program go to some single, reasonably small interest (e.g., industry, profession, or locality) but most or all of the costs will be borne by a large number of people (for example, all taxpayers).”
Pretty slick: ask for and get only regulation that helps your own interests to the detriment of everyone else. And the more I thought about it, the more it occurred to me that that’s what many regulations of state Bar Associations may be designed to do. Help lawyers at the expense of the public.
Let’s look at the evidence: According to a 2021 Report of the Institute for the Advancement of the American Legal System:
66% of the population experienced at least one legal issue in the past four years, with just 49% of those problems having been completely resolved. On an annual basis, that translates to 55 million Americans who experience 260 million legal problems. A considerable proportion of these problems—120 million—are not resolved or are concluded in a manner which is perceived as unfair. This study shows that access to justice challenges are significant and pervasive.
77% of the population is severely underserved
And as I have discussed before, being underserved does little to advance the understanding of the importance of our rule of law. This problem is precisely why entities such as LexisNexis’ Rule of Law Foundation sees access to justice as fundamental to advancing the rule of law.
Who do Bar Associations serve?
So the first question is whether regulations of state Bars advance or impair the obvious public interest in broad access to justice. Do regulations of state Bar Associations advance or stand in the way of access to justice?
It’s a fair question whether such things as mandating that only lawyer owned firms can provide legal services work to hinder public access to justice by creating a monopoly. A monopoly that exacerbates the high cost of legal services to a public which frankly can’t afford lawyers. Do things like the prohibition of fee-splitting hamper access to justice by reducing the ability and opportunity for the public to obtain access to lawyers and legal services? Do bar exams really serve to make law school graduates demonstrate core competencies or are they barriers to entry that limit at least indirectly greater public access to lawyers and justice?
All good questions. But all of these and similar questions beg a fundamental question. Who do Bar Associations serve? Bar associations are composed primarily of lawyers: are they industry organizations whose real purpose is to serve the interests of their members? Or are they regulatory bodies designed to protect and advance public interests?
This question is particularly important for mandatory Bar Associations–those state Bar Associations lawyers must join to practice law. The purpose of making membership mandatory would suggest that it’s to be able to control and regulate lawyers presumably for the benefit of the public.
But Britannia says, “In general, bar associations are concerned with furthering the best interests of lawyers.”
And Wikipedia may have it closest to correct “Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both.” [emphasis added]
I think in most states, particularly where membership is mandatory, it is indeed both. And this dual interest creates a tension we see today as lawyer regulation is debated. Bar Associations are often faced with proposals for reform that may advance the interests of the public and access to justice. But the proposals are often not in the best economic and cultural interests of their dues-paying members. And Bar Association leadership is almost uniformly composed of lawyers, the very group that the Association is supposed to be regulating.
If Bars are supposed to serve the public interest, it’s a legitimate question to ask whether it is a conflict of interest for an association composed of and lead by lawyers can really advance the public interest
Lawyers are fond of spotting (and spouting about) conflicts of interest. If Bars are supposed to serve the public interest, it’s a legitimate question to ask whether it is a conflict of interest for an association composed of and lead by lawyers can really advance the public interest. It’s difficult to bite the hand that feeds you.
And perhaps this is precisely why we see so little progress in solving access to justice problems and enhancing the delivery of legal services to the general public.