Judges Routinely Favor the Interests of the Legal Profession

We recently wrote about the legal field's status as America's only truly self-regulating profession--and made a case that such status helps breed corruption in our courtrooms.

A reader took issue with my conclusion and asked me to provide evidence to support my contention that it is a bad idea to have lawyers overseeing lawyers. This blog--through our coverage of the Don Siegelman and Paul Minor political prosecutions, plus my own legal travails--has presented ample evidence that our justice system desperately needs reform.

But I suspected my reader wanted something more than that. So I came up with even more compelling evidence--and it comes from a member of the legal profession.

Benjamin H. Barton, an associate professor at the University of Tennessee College of Law, has written an article that asks this compelling question: "Do Judges Systematically Favor the Interests of the Legal Profession?"

Barton's answer is a resounding "yes." And he provides plenty of evidence, and insider analysis, to back it up. Many of the skewed results from American courtrooms can be described by what Barton calls the "lawyer-judge hypothesis":

Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton's article is academic in nature and gets into some pretty heavy stuff, such as "new institutionalism" and "public choice theory." But here is a solid bottom-line description of what he is talking about:

Judges tend to come from a very select group of individuals who have thrived within the institution of legal thought and practice. As a result judges take a particular set of deeply ingrained biases, thought-processes, and views of the world with them to the bench. These institutions can’t help but color and control judicial thinking and outcomes, and the cases that affect the legal profession as a whole are just one of many cases where the institution of judicial thought plays itself out.

Why would judges be biased in favor of lawyers? Barton provides plenty of reasons:

A brief study of judges -- who they are, how they are trained, what their jobs are like, and salary effects -- leads to the inevitable conclusion that judges will regularly favor the interests of lawyers over other litigants. Many judges rely upon lawyers to get or keep their jobs. Most state judges face some type of election (either contested or retention), and lawyers provide most of the elected judiciary’s campaign donations. In elective states – including merit selection states with retention elections – bar associations frequently endorse judicial candidates, and conduct and publish “bar polls” on the judges. Many judges were selected for their positions through “merit plans” that place substantial selection authority in state and local bar associations. Any judges who hope to join the federal judiciary rely upon the ABA for a favorable rating. Bar associations have further massaged the judicial salary incentive by working tirelessly for higher salaries for judges.

Lawyers, it turns out, do much of a judge's work for him. So it's only natural that a judge would want to keep them happy:

A closer examination of the nuts and bolts of a judge’s job also demonstrates how critical lawyers are to the work of judging. In the advocacy system most judges rely on the lawyers to do the great bulk of the work in trying, briefing, researching, or investigating cases. When the system is working properly the judges sit back and decide cases based on the legal and factual work of the lawyers. I’ve noted before how this aspect of the judicial incentive structure has led directly to higher barriers to entry, including the requirement of three years of law school and an ever more difficult bar exam – because judges and current lawyers both profit when entry tightens. On a more basic level, most judges probably do not want to face a courtroom of disgruntled lawyers on a regular basis, simply because of their ongoing, working relationship.

Barton examines five key areas where the legal profession has clearly acted to protect its own interests:

* Attorney-client privilege;

* Non-compete agreements;

* Right to counsel vs. right to remain silent (in criminal cases);

* Legal malpractice;

* Model Rules of Professional Conduct.

Barton shows how each of these areas is manipulated to benefit lawyers. And he explains how it happens:

The creation and maintenance of the unique self-regulatory apparatus of the American legal profession speaks volumes about the relationship of the bench and bar. The first thing to note is that state supreme courts, and not state legislatures, govern the regulation of lawyers in all fifty states. Thus lawyers have the only true claim to professional self-regulation: from top to bottom they are governed by lawyers. Predictably, this control has led to “a degree of self regulation far beyond either the reality or even the expectations of any other professional group.”

It's impossible to overemphasize this point: State supreme courts, not state legislatures, regulate lawyers. And that means citizen legislators, many of whom are non-lawyers, have almost no say in governing our courtrooms.

What are we, the public, left with? A dysfunctional justice system--and Barton puts it in blunt terms:

As a general rule foxes make poor custodians of hen houses, and I have argued at length elsewhere that self-regulation has led inexorably to self-interested regulations. There are a number of irrefutable examples from the ABA Rules, which include regulations restricting competition through stringent rules on advertising, client solicitation, client referrals, and unauthorized practice in another jurisdiction or assisting in unauthorized practice. These regulations are defended as a hedge against creeping commercialization, but critics see naked restraints of trade.

Is there hope for our system? Barton examines one possible change that sounds radical on its face--but really it is not radical at all:

I do not think it is obvious that all judges should be lawyers. To the contrary, it may be right that no lawyers should be judges. In many civil law countries judges are trained and educated separately from lawyers. Perhaps that is a better model.

Moreover, the idea that only lawyers should be judges is of relatively recent vintage in the United States. In the 18th, 19th, and early 20th century many judges and justices of the peace were not lawyers (and many current justices of the peace are still non-lawyers). Predictably, bar associations were at the forefront of the (largely successful) effort to eliminate lay judges. These efforts occurred simultaneously to the bar’s overall professionalization movement that included the push for a bar examination, required legal education, and the unified bar. Given the potential benefits to the profession, and the key role that the judiciary played in the success of the professionalization movement, bar associations clearly made a wise choice.

So lawyers have benefited from the elimination of lay judges. But what about the rest of us? Barton is not so sure:

Aside from history and international precedents, Adrian Vermeule has recently argued that there should be at least one non-lawyer Justice of the U.S. Supreme Court, and possibly more. Non-lawyer judges can also be defended on populist or egalitarian grounds. It is beyond the scope of this article to build a complete defense or indictment of the primacy of lawyer judges. Instead, I will note that it does add another wrinkle to a larger ongoing debate about the structure and nature of our judiciary.

Nevertheless, the lawyer-judge hypothesis established herein proves that lawyers have enjoyed preferential treatment. The severity of the problem and what should be done about it, if anything, are ultimately issues for further contemplation and study.