08 August 2013

Overlawyered?

‘What does and should influence the number of lawyers?’ by Richard Abel in (2012) 19(2/3)
International Journal of the Legal Profession 131 comments that
Before we can ask whether there are too many lawyers we must answer several preliminary questions: whom do we consider lawyers, and what does and should influence their number? The term ‘lawyer’, which English-speakers take for granted, has no obvious equivalent in many other languages. Civil law countries have the category of ‘jurist’, including everyone with a law degree; but a very large proportion of law graduates would not be recognized as lawyers in common law countries. Terms like ‘avocet’, ‘avvocato’,  ‘abogado’ or ‘anwalt’ refer to lawyers with rights of audience in court – but this criterion would exclude jurists employed by corporations and civil servants, who are considered lawyers in common law countries. Notaries in civil law countries perform many of the functions of common law lawyers. Japan is famous for having few bengoshi compared with its population; but many of the functions of lawyers in other countries are performed by tax accountants, patent attorneys, and judicial and administrative scriveners in Japan.
Abel notes that "At a moment like the present, when legal professions in many countries worry that their numbers are increasing in the face of great uncertainty about the future of the global economy, it is essential to review the ways in which lawyers have regulated their numbers in the past". He goes on to critique mechanisms such as -
  • Numerus clausus 
  • State monopolies 
  • Ascribed characteristics
  • Formal education
  • Examinations
  • Apprenticeship
  • Employment
  •  Market Influences
Abel concludes
Social constructivist theory urges us to ask who is defining the social problem and why they are doing so. Temporary imbalances between supply and demand are a cost of every profession. Legal professions emerged and matured by aggressively restricting supply, thereby increasing the monopoly rents they were able to extract and produce rising – some would say excessive – lawyer incomes. Recent increases in the production of lawyers were the response. They may have overshot the mark. Certainly law school enrolments failed to respond quickly to the global recession. But rather than rush to impose ‘solutions’ that once again restrict the production of lawyers, we should reflect on the historical and comparative experience of supply control by lawyers. The legal profession exists to serve the public, not its own members. Entry barriers can be justified only if they are demonstrably necessary to ensure a minimum level of competence. Advocates of restrictive practices must show they are essential to protect clients against lawyer overreaching or misconduct. Efforts to expand access to justice should be applauded, not stigmatized.