Web May Be Key to Cracking 'Monopoly' of Law

The Brookings Institution is one of the premier think tanks in Washington, D.C. Clifford Winston, a senior analyst at Brookings, recently expounded on a truly subversive thought: By requiring lawyers to have a law degree and pass the bar exam, the profession seeks to restrict the supply of new lawyers and thus perpetuates a monopoly.

Calling the requirements "barriers to entry," Winston wrote that, rather than improving the quality of legal practice, the prerequisites of graduating from an accredited law school and passing the bar "exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance."

He advocated allowing individuals to take online courses or attend vocational schools to do "simple" tasks like wills at far lower costs than lawyers now charge.

Longtime readers of this column should not be surprised that I believe Winston has a point, though he likely overstates it. The law is a professional service that is also a business. Doing business with prospective users of legal services should be restricted only by truth, fairness and honesty. The problem is not that lawyers are too few and are too expensive, it is that they cannot truly compete for clients in a businesslike way.

Unfortunately, attorneys still risk bar association discipline for using traditional marketing tactics. The rules of professional conduct are replete with restrictions on marketing, advertising, solicitation, the use of social media and more.

It is one thing to regulate for truth and fairness in promotional statements and to restrict hyperbole so as not to create false expectations. It is another thing to dictate how the communication can be framed.

Bar associations seek to regulate lawyers in ways that other governing bodies do not, would not and could not regulate (as with doctors, accountants or plumbers). The losers are small firms and sole practitioners — and those clients who would benefit from learning about them.

So far as the ultimate concern of the client and legal ethics, the quality of legal service, and not the degree of salesmanship and promotion, should be what is important.

The Internet has been the great marketing equalizer, allowing small firms to educate consumers about their services just as effectively as large firms do. Yet, state bars still seek to restrict them.

For example, the Virginia State Bar recently charged a lawyer with professional misconduct for discussing his completed cases on his blog without adding an advertising disclaimer stating that results depend upon factors unique to each matter and that results in one case do not predict similar results in others.

The Internet marketing efforts of small-firm practitioners are typically designed to generate awareness and to get potential clients to initiate contact, leveling the playing field among all firms. Potential clients can decide whether the firm's skills are a match and make decisions as educated buyers.

If an Internet presence is advertising, it also furthers the process of educating the public about which lawyers can best help them, what they do, and how to reach them. That process — not eliminating law degrees and bar exams — is the path to more affordable legal services