Monopoly power in defense of the status quo: a critique of the ABA's role in the regulation of the American legal profession.

• Author: Clark, Gerard J.

TABLE OF CONTENTS I. INTRODUCTION II. SUPREME COURT INTERVENTION III. ABA APPROVAL OF LAW SCHOOLS A. History B. Accreditation Standards C. Legal Difficulties IV. A SHORT HISTORY OF ABA PROFESSIONAL REGULATION A. The First Ninety Years B. The Kutak Commission C. The Post-Kutak Years V. THE VALUE JUDGMENTS UNDERLYING A PROFESSIONAL CODE FOR LAWYERS A. Professionalism B. The Ethical Triangle C. The Process of Reform VI. THE ABA'S INSTITUTIONAL LIMITATIONS ON THE PRACTICE OF LAW A. Rule 5.4, Multi-Disciplinary Practice B. Rule 5.5, Multi-Jurisdictional Practice VII. LIMITING OTHER PROFESSIONAL ROLES A. Intermediary B. Evaluator C. Negotiator D. Advisor VIII. CONFIDENTIALITY: THE INFORMATION FLOW A. Rule 1.6, Confidentiality B. Rule 1.13, Organizations as Clients C. Rule 4.2, Represented Parties IX. ABA AS PUBLIC RELATIONS ORGAN FOR THE BAR X. CONCLUSION I. INTRODUCTION

Since its founding in 1878, (1) the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States (2) are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power. Not until the 1970s did the ABA experience any real challenge to its dominance. The Watergate scandal harmed the bar's reputation when President Nixon's prestigious lawyers committed crimes that subverted governmental authority. Furthermore, the Supreme Court found a number of the ABA's regulations of lawyer professionalism to be illegal.

2. SUPREME COURT INTERVENTION

   In the 1970s, the Court demonstrated a new willingness to examine the legal profession by applying antitrust principles and the First Amendment to a series of state bar rules that were patterned on ABA models. In Goldfarb v. Virginia State Bar, (3) the United States Supreme Court ruled that the Virginia State Bar attorney fee schedule, which dictated minimum fees to be charged for a wide variety of legal services, was an antitrust violation, (4) because it was "enforced through the prospective professional discipline from the State Bar.... [T]he motivation to conform was reinforced by the assurance that other lawyers would not compete by underbidding." (5) While the Court recognized that states have a "compelling interest" in the regulation of professions "to protect the public health, safety, and other valid interests," and "to establish standards for licensing practitioners and regulating the practice of professions," the practice of law was not a sanctuary insulated from the Sherman Act. (6) By using the state legislature, "lawyers would be able to adopt anticompetitive practices with impunity." (7) The Court found no "support for the proposition that Congress intended any such sweeping exclusion." (8)

   The Court has also used the First Amendment to invalidate a variety of rules concerning the distribution of legal services. (9) In NAACP v. Button, (10) the Court held that the First Amendment prohibited the Virginia Bar Association from attempting to outlaw the NAACP's program of selecting and paying lawyers to bring school desegregation cases. (11) In Brotherhood of Railroad Trainmen v. Virginia State Bar, (12) the Court decided that the states could not treat as unlawful solicitation and unauthorized practice a program under which the union-sponsored lawyers advised injured member workers and their families to obtain legal assistance before settling claims and recommending specific lawyers who handled their claims of members. (13) In 1967, in United Mine Workers v. Illinois State Bar Ass'n, (14) the Court held that a union plan, under which a private practice lawyer, salaried by the union, handled worker compensation claims for union members and their families, was constitutionally protected. (15) Finally, in 1971, in United Transportation Union v. State Bar of Michigan, (16) the Court reaffirmed the constitutional invulnerability of the tradesmen union's regional counsel plan. (17)

   In Bates v. State Bar of Arizona, (18) the Court extended First Amendment protection to newspaper advertisements offering to provide various services for specified fees, including uncontested divorce, adoption, non-business bankruptcy, and change of name. (19) The Arizona Supreme Court censured the lawyers for conduct in violation of its code of professional responsibility. The United States Supreme Court reversed noting that, "[t]he listener's interest [in commercial speech] is substantial," and "often may be far keener than his concern for urgent political dialogue." (20) Further, the commercial speech served important societal interests by informing the public of the availability, the nature, and the price of products and services. (21) The court rejected the state's claims that advertising had an adverse effect on professionalism, was inherently misleading, or had an adverse effect on the administration of justice. (22) In subsequent cases, the Court invalidated prohibitions on targeted advertising, (23) direct mail advertising, (24) bona fide advertising of one's field of specialization, (25) and lawyer participation in collective activity undertaken to obtain meaningful access to the courts. (26) In each of these instances, the official ABA position opposed these rulings.

3. ABA APPROVAL OF LAW SCHOOLS

   1. History

      In 1893, the ABA created the Section on Legal Education and Admission to the Bar, (27) which immediately undertook a campaign to expand law school attendance and to diminish the arguably superior apprenticeship-clerkship route to admissions. (28) The apparent justification for this new and superior method was its intellectual rigor. The case method and the Socratic method created by Dean Langdell at Harvard became the model. (29) The new law schools eschewed the trade-school model in favor of training by academic specialists who touted the history and the policy implications of the rule of law. (30) This intellectual approach to a practical profession has been criticized ever since by the likes of Jerome Frank. (31) Indeed, the ABA itself joined the critique of its own creation in the MacCrate Report that criticized legal education for being too narrowly focused on knowledge and recommended a more expansive educational experience including skills (32) and values. (33) More recently, the Carnegie Foundation came to a very similar conclusion. (34)

      In 1921, the American Bar Association promulgated its first Standards for Legal Education and began to publish a list of ABA-approved postgraduate law schools that met the ABA standards. ABA approval has since been adopted by state bar admission bodies as a standard for purposes of eligibility for admission to the bar. (35)

   2. Accreditation Standards

      The process of accreditation of new law schools involves extensive written submissions, as well as at least two site visits by teams chosen by the Section. (36) Schools that are already approved are visited once every seven years. The standards and rules of procedure for the approval of law schools are voluminous and detailed. (37) They govern every aspect of the law school's educational program. This has led to a uniformity of legal education nationwide. (38) Indeed the cost of private law school and annual cost increases are strikingly uniform. (39)

      For instance Standard 402 requires strict adherence to the regulations concerning student-faculty ratios:

      (1) A ratio of 20:1 or less presumptively indicates that a law school complies with the Standards. However, the educational effects shall be examined to determine whether the size and duties of the full-time faculty meet the Standards.

      (2) A ratio of 30:1 or more presumptively indicates that a law school does not comply with the Standards. (40)

      Interpretation 402-1 adds further detail:

      (A) Additional teaching resources and the proportional weight assigned to each category include:

      (i) teachers on tenure track or its equivalent who have administrative duties beyond those normally performed by full-time faculty members: 0.5;

      (ii) clinicians and legal writing instructors not on tenure track or its equivalent who teach a full load: 0.7; and

      (iii) adjuncts, emeriti faculty who teach, non-tenure track administrators who teach, librarians who teach, and teachers from other units of the university: 02.41

      Section 503 requires that a law school not using the LSAT should establish that its test is an acceptable test. (42) "Interpretation 503-1 makes it clear that the burden is on the law school to demonstrate the validity and reliability of any test or assessment methodology, other than the LSAT...." (43) Concerning the law school admission process, the Office of the Consultant to the Section on Legal Education and Admission of the Bar has issued the following memo: "The [Accreditation] Committee urges any school that is considering implementing a special admission program not requiring the use of the LSAT ... to give notice to the Consultant's Office, and to be prepared to address all the issues identified...