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A closer examination of the nuts and bolts of a judge's job also demonstrates how critical lawyers are to the work of judging. In the advocacy system most judges rely on the lawyers to do the great bulk of the work in trying, briefing, researching, or investigating cases. When the system is working properly the judges sit back and decide cases based on the legal and factual work of the lawyers. I've noted before how this aspect of the judicial incentive structure has led directly to higher barriers to entry, including the requirement of three years of law school and an ever more difficult bar exam because judges and current lawyers both profit when entry tightens. On a more basic level, most judges probably do not want to face a courtroom of disgruntled lawyers on a regular basis, simply because of their ongoing, working relationship.
Barton examines five key areas where the legal profession has clearly acted to protect its own interests:
* Attorney-client privilege;
* Non-compete agreements;
* Right to counsel vs. right to remain silent (in criminal cases);
* Legal malpractice;
* Model Rules of Professional Conduct.
Barton shows how each of these areas is manipulated to benefit lawyers. And he explains how it happens:
The creation and maintenance of the unique self-regulatory apparatus of the American legal profession speaks volumes about the relationship of the bench and bar. The first thing to note is that state supreme courts, and not state legislatures, govern the regulation of lawyers in all fifty states. Thus lawyers have the only true claim to professional self-regulation: from top to bottom they are governed by lawyers. Predictably, this control has led to "a degree of self regulation far beyond either the reality or even the expectations of any other professional group."
It's impossible to overemphasize this point: State supreme courts, not state legislatures, regulate lawyers. And that means citizen legislators, many of whom are non-lawyers, have almost no say in governing our courtrooms.
What are we, the public, left with? A dysfunctional justice system--and Barton puts it in blunt terms:
As a general rule foxes make poor custodians of hen houses, and I have argued at length elsewhere that self-regulation has led inexorably to self-interested regulations. There are a number of irrefutable examples from the ABA Rules, which include regulations restricting competition through stringent rules on advertising, client solicitation, client referrals, and unauthorized practice in another jurisdiction or assisting in unauthorized practice. These regulations are defended as a hedge against creeping commercialization, but critics see naked restraints of trade.
Is there hope for our system? Barton examines one possible change that sounds radical on its face--but really it is not radical at all:
