On this there can be no debate.

It is definitely wearing thin. I have been trying to talk my wife into moving just about anywhere else. I think Arizona would be her first choice, but I would be happy with Tennesee. We live in Riverside, a “nice village in a forest”, over $5,000.00 of our real estate taxes go to the school district, and we still have registered our daughter in a private school for kindergarten. This may be the straw that breaks my wife’s inertia.

BTW: I agree that reciprocity is protectionistic. Whether California recognizes Illinois law licenses has no rational relationship to whether a California attorney is as competent and ethical in Illinois as he is in California.

I think we largely agree on the situation, but have divergent preferences. And as you correctly note, my preference is in the minority.

Another fringe benefit of requiring a law license is that most lawyers know enough about other areas of law to know our limits. Any lawyer may legally draft you a will or “living” trust, but if you ask your lawyer friends to do it, I suspect that most would be reluctant to do so. Only those who know almost no law at all take the “how hard can it be, anyway?” attitude Ernest the Non-Law-Professor appears to have taken.

Explaining the associate thing – 1) I’m listing it as an example of an anti-competitive practice not based on competence and 2) it’s just a little funny to an outside observer that a law professor if asked for legal advice could not render it unless they have requested (and paid for) active status. Now that’s not a particularly high barrier to entry, but it is nonetheless a barrier to entry.

Example: Suppose Ernest Chavis had been a professor of estate law and not an insurance agent, and suppose Ernest had no interest in practicing law because he hated the process of attracting clients (for whatever reason). Upshot, Ernest the professor doesn’t maintain active status and is instead has associate status. Now suppose Annie Weiss asked him to draft a will as a favor and he agrees. Ernest the law prof would be just as guilty of rendering unlicensed legal services as Ernest the insurance agent. Thus the illegality in such a scenario is not one of competence.

Now, I recognize that the legal way for Ernest the professor to handle this is for Ernest to say, “Sorry, I am not currently licensed to practice law in the state of VA, but if you go see x,y,or z who specialize in estate law, they can help you out.” But right there, he had to refuse business even though he was competent to handle her problem.

More broadly, I place practicing law without a license into the broad category of victimless crimes – all crimes which I think shouldn’t be illegal. Not because the illegality of those activities is unConstitutional; rather such an arrangement is just not my personal preference. (Example: I think Lawerence v Texas was wrongly decided, but would’ve preferred Texas have not passed the law to begin with as consensual sodomy is a victimless crime. So put me in the Thomas camp on that one.)

I suppose it’s a question of where the emphasis is placed — on protecting the monopoly or protecting the clients?

Illinois may be unique, and it may have given me a rose-colored view, but licensing and discipline is by the Supreme Court through its administrative arms. There is no requirement for anyone to belong to a bar association and they have no authority in the licensing or discipline of attorneys.

In a case of first impression, an attorney received a two-year suspension for not reporting misconduct by another atorney. Fairly recently, a Supreme Court opinion imposed the same obligation on trial judges to report misconduct in pending cases. I know of one attorney who was reinstated after serving a twenty-year sentence for murder. I know of no case where an attorney was reinstated after converting client funds when he had not made full restitution.

True, if you want to take the bar exam right after law school, Illinois requires that you have gone to an accredited school. But we have reciprocal licensing (without looking it up) for attorneys from other jurisdictions who have practiced for three years (?), pro hac vice, and the rules may have changed but I studied for the bar exam along with a California attorney who had gone to an unaccredited school.

What more can I say?

[Oh, I dunno. How about this: why would anyone smart enough to pass a bar exam want to live in Illinois? -X]

That’s not an argument. Just because every guild or quasi-guild uses the same argument to justify its existence, that doesn’t mean they’re all wrong (or, for that matter, that they’re all right). There could be – and IMO, is – a legitimate need to protect the public from unlicensed doctors, lawyers and realtors, but no need to “protect” them from unlicensed furniture manufacturers, unlicensed school teachers or unlicensed garbage picker-uppers.

Of course, the question of whether there should be a licensing requirement for a given profession to protect the public is a separate one from whether the existing licensing requirements are congruent with that objective. As I’ve already pointed out, requiring out of state attorneys to take the bar is 99% protectionist, 1% (if that) about protecting the public. Most states, including Virginia, admit on a reciprocal basis, which smacks of protecting their own lawyers’ right to practice outside the state, not protecting the public’s “right” not to be subjected to substandard attorneys from out of state. Some states, such as California and Arizona, do not admit foreign attorneys without exam under any circumstances. AFAIK only Texas has the balls to admit that anyone who meets the licensing requirements of any other U.S. state and has practiced for at least 5 years there in good standing is qualified for admission without exam. Virginia comes close as to corporate counsels, though; it doesn’t even have the 5-year requirement.

Requiring ABA accredited schools is probably not a good idea, not because of the basic competence issue – I want more assurance of that than any two- or three-day exam can offer alone – but because of the ABA’s shenanigans, which are generally directed at schools that do meet the basic academic requirements but don’t toe the ABA’s line on political matters such as “diversity.” If I were the virginia Supreme Court, I’d accredit every school that the ABA accredits, and every other school that teaches the basics, and whose student bodies have a bar passage rate comparable to (or better than) those of the lower tier ABA accredited schools.

I’m not sure what your objection is to associate status. My (admittedly naive) understanding is that associate status is chosen voluntarily by VSB members who don’t want to practice law or comply with CLE requirements (another protectionist racket, though in this case it’s something other than the lawyers themselves that their “guild” is protecting), but do want to keep their law licenses in good standing and reserve the right to redesignate themselves as regular members should they later choose to practice again. Is that not the case? And if so, where’s the beef?

A special document allowing big boys to knowingly waive licensure strikes me as a reasonable idea, but I think that in so doing, they would give up any reasonable expectation of “professional” services and thus, any recourse for malpractice. That question may be mostly academic, though; I can’t imagine any insurer issuing a professional liability policy to a putative “attorney” who can’t meet the basic licensing requirements in any state.

Requiring attorneys to demonstrate basic competence in the law prior to practicing law strikes me as a reasonable step in that direction.

The same justification is used by doctors for medicine, realtors for real estate and trade unions for their trades. That’s always a guild’s stated reason for the protection from competition – x,y, and z, while anticompetitive are necessary to protect the interests of the public.

As a matter of preference and a member of the public I disagree with the organization of trade unions, bars, and medical licensing because I think the stifling of competition outweighs any benefit (although I recognize the benefit to the members of the guild). I would prefer that caveat emptor (with mechanisms for recovering damages for malpractice) be the law of the land.

Side note 1: I, at least, do not perceive exclusion from the practice of law as based solely on reasonable competence. Consider the following constraints on practicing law in Virginia which do not seem to be a function of reasonable competence.

a) You can’t take the bar exam unless you’ve been to an accredited law school. This is sorta like getting a realtor’s license, you can’t just show up for the test and demonstrate subject matter mastery.

b) You can’t practice law after you retire (though pro bono work is ok!)

c) Associate members can’t practice law(associate members include law faculty who presumably know the law, though there is the argument that those who can’t do, teach…)

d) Lawyers wouldn’t be forbidden from aiding a non-lawyer in the rendering of legal advice.

Side note 2: Maybe there should be a “big boy” license which permits members of the public to waive the “privilege” of being protected by guilds when they freely enter into contracts. Or maybe a better set up would be that someone can practice law (or realty or whatnot) without a license as long as each client signs a document affirming the fact that they are aware that the practitioner is not licensed.

I’ll make the guild analogy clearer: Law school/associate = apprentice. Partner = master craftsman. Guilds were given exclusive rights by the state (or more frequently city) to manufacture a certain product, such as furniture or wool. Lawyers are given exclusive rights by the state to practice law. Training and standards of execution with accompanying penalties for failing to produce products up to specified standards are all part and parcel of a guild.

Even wikipedia cites state bar associations as an example of a guild.

As to if lawyers have no loyalty to their own group (No, because we do not have a duty of loyalty to the success, protection and perpetuation of our group.), why is it against the law to practice law without a license? If only the interests of the client were an issue, then only legal malpractice would be against the law.

Side note: I have similar (negative) feelings about the organization of most national unions, realtors, and doctors (the MD kind, not the PhD kind) and probably would about actors and screen writers if I had more interactions with them.