It is time to end the monopoly on legal services in Maine. Trust me, I’m a lawyer. We all know about the lack of attorneys available to represent indigent criminal defendants. The problem is even worse for low-income Mainers in civil proceedings such as evictions and child custody disputes.
Like most states, Maine provides aid to low-income residents through legal aid programs. The national standard for legal aid is 10 lawyers for every 10,000 qualified individuals. In Maine, that number is two for every 10,000.
It’s not that lawyers don’t want to represent low-income people – it’s that they cannot afford to do it. The best way to address our access to justice problem is to recognize it for what it is: a market failure. Unlike almost every other industry, the legal profession is regulated by the lawyers themselves. Imagine the Federal Aviation Administration, but run only by airline pilots, or the Food and Drug Administration, run only by pharmaceutical companies.
Lawyers set the rules on who can be a lawyer, who lawyers can do business with, how lawyers market their services and who lawyers can represent. Lawyers even regulate what can be considered the practice of law. Lawyers cannot set market prices, but they can and do restrict supply. Anyone can get a law degree, but lawyers decide what schools will be accredited to award those degrees. Of course, obtaining that degree is not enough, you also need to pass the bar exam. Who writes that bar exam? Yep, lawyers.
The law school-legal fees feedback loop exacerbates the supply problem. Law firms run on associates: less experienced lawyers who do not yet have sufficient client relationships to support themselves. Associates graduate from law school with debt. The bigger the debt, the more the associate will need to make to pay it off. As law school gets more expensive, firms raise their prices to pay associates more. As associates are paid more, more people will want to become lawyers. As the demand for law degrees increases and the supply of law schools stays the same, law school tuition rises and the cycle continues.
The average hourly rate for an attorney has shot up by four times the rate of inflation over the last five years, with law school tuition following similar trends.
You might say “our law school is different.” Yes, our local school is a bargain compared to out-of-state schools, but Maine law students don’t graduate in a vacuum. The allure of making two or three times the salary in Portland or Boston compared to rural Maine is often irresistible.
Monopolies also stifle innovation by locking out competition. Lawyers have a rule restricting law firm ownership to lawyers only. Imagine if you had an idea for a video streaming service, but the only place you could get capital from was Blockbuster. If a lawyer has a disruptive idea to solve a problem – say, access to justice – the only source of capital is, you guessed it, other lawyers.
The authorities that regulate the legal profession are staffed with well-meaning people with a zeal to protect the legitimacy of our legal system. Our industry is steeped in convention and tradition. Those conventions and traditions have rendered us blind to the realities of the present day.
It is time for Maine to join other states in reforming the legal monopoly. Some states have expanded the ability of paraprofessionals to represent parties in court while others have relaxed the restriction on non-attorney ownership of law firms. Monopolies are lucrative things. Just as fees have gone up, so have law firm profits on those fees-all at the cost of providing services to low-income Mainers. Asking the legal industry to solve this problem would be like asking the oil industry to solve global warming. This change must come from the people.
A three-year law degree plus bar exam should not be a prerequisite to help others navigate the court process. A person does not need to understand the rule against perpetuities to help a family secure adequate housing. A comprehensive knowledge of the Erie doctrine is not necessary to help protect a woman from an abusive partner. At last count, eight states, including New Hampshire, are reexamining the lawyers’ monopoly over legal services. Maine should be the ninth.