The legal profession is a little different than most industries, and not just because of that funny “Esq” that so many attorneys like to append to their names.[ref]Which in the 21st century, in a nation of over one million lawyers, seems a pathetically self-aggrandizing title, if you ask me.[/ref] The most critical thing that stands out is that law is largely a self-regulating industry. The legal community sets the rules for practice in each state. It decides what the standards are for admission and what sort of behavior is permitted once a lawyer is in practice.
This is a unique structure, one made possible by the fact that the top dogs in the profession – the members of each state’s Supreme Court – are employed by the government itself. And paradoxically, this independence is often lauded as being necessary to maintain the independence of the legal profession from government interference.
An insular guild that makes its own rules. And it’s a guild that is, at times, accused of caring more about protecting its monopoly, or – in the case of communication with potential clients – a conservative vision of the “dignity of the profession,” than it is about ensuring widespread access to justice.
One of the unintended consequences of legal self-regulation has been the creation of a market for legal services quite different and less robust than that which exists for nearly any other type of goods or services. For while some of these differences are driven by the primacy of the attorney-client relationship and the inherent complexity of many legal services, many more are the product of inertia, resistance to change, and a regulator’s love for an ever-greater spiral of regulation.