Tuesday, March 19, 2013
Gerard J. Clark (Suffolk), Monopoly Power in Defense of the Status Quo: A Critique of the ABA's Role in the Regulation of the American Legal Profession, 45 Suffolk U.L. Rev. 1009 (2012):
Since its founding in 1878, 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; by supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; by regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; by providing a continuous public relations campaign to put the bar in a favorable light; and by 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 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.