In what could change the way law is practiced in America, a South Florida marketing executive on Tuesday announced he is suing the Florida Bar for the right to sit for the state’s bar exam without first having earned a law degree. If successful, the lawsuit could provide an important precedent for how American lawyers are trained and break the stranglehold the American Bar Association (ABA) currently holds on the legal profession.
Jay Schorr, owner of TMR Multimedia, a communications company in Hollywood is challenging the longstanding law degree prerequisite as, among other causes of action, “unconstitutional, inherently flawed, an impediment to free market competition, monopolistic, and a legally and socially untenable requirement that drives up the costs of legal services while depriving some of life, liberty and the pursuit of happiness.”
According to Schorr, the Florida Bar’s law degree requirement is “without legal or logical merit,” offering as evidence that even with a law degree, if an applicant fails the bar exam he or she cannot practice law in Florida.
“The Florida Bar’s litmus test as to who is competent to practice law is a passing score on the bar exam,” said Schorr. “So if a person can obtain the knowledge required to pass the bar by self-study, why should they be required to have a law degree? So they can be saddled with more student loan debt?
”Ultimately, that debt is passed on to consumers in the form of higher legal fees. And the result is that many consumers who need legal representation can’t afford it.”
Schorr said that he petitioned the Bar several years ago to allow him to sit for the exam, but his request was denied on the basis of his not having earned a law degree. A requirement, Schorr says, is unconstitutional.
“The Florida Bar, like most state bars, is a legal monopoly," said Schorr. "Any attorney who wants to practice law in Florida must be a member of the bar, and is essentially forced to pay annual dues for the privilege. That’s the equivalent of being forced to join a trade union.”
Schorr is not alone in his belief that mandatory bar membership and the law school degree requirement are unconstitutional. George Leef, an attorney and a contributing author for the CATO Institute, a Libertarian think tank based in Washington, D.C. thinks that state unauthorized practice of law (UPL) prohibitions should be struck down as well.
“Every state except Arizona prohibits the unauthorized practice of law (UPL); a person must possess an attorney's license to hold himself out as a lawyer,” wrote Leef in one of his CATO treatises. “UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.
Leef adamantly disagrees with the ABA’s contention that licensing lawyers helps to ensure the public has access to competent lawyers.
“UPL prohibitions are neither necessary nor sufficient to protect consumers from incompetence,” wrote Leef. “A competitive market, reinforced by remedies for fraud, breach of contract, and negligence, offers the optimal combination of price and quality."
Leef believes that UPL statutes are unconstitutional and should be repealed or struck down because “they infringe upon individual freedom and serve no legitimate public purpose.”
Schorr says he is in 100 percent agreement with Leef regarding establishing a free market for lawyer services, but he’s not quite ready to support no oversight at all when it comes to regulating the legal profession. And that's about all on which Schorr and the Florida Bar agree.
“The potential for abuse in any profession is always there,” say Schorr. “How much more so for a profession that helps shape the laws of our nation. There needs to be some oversight mechanism for lawyers, but more so for those already practicing law as opposed to deciding who and who cannot sit for the bar.”
Leef, who took the traditional law school route to becoming an attorney, believes a more open, laissez-fare approach to the legal marketplace is in order.
“Individuals ought to be free to choose for themselves whether they want to do business with a licensed practitioner who has been to law school and passed the bar exam, or someone else,” proffered Leef.
If Schorr is successful in his lawsuit, the ramifications could be far-reaching.
“The whole legal profession could be turned on its respective head,” said Todd Pennington, a legal industry analyst based in Dallas. “It used to be that lawyers learned their trade through real life clerking under the tutelage of an experienced lawyer. You could see that scenario again if Schorr is successful with his action. The ABA is not going to like that outcome. But then again, the ABA supports what's in its best interests. And the ABA's diminished influence on who can become a lawyer - a real possibility with this lawsuit - is not in the ABA's best interests.”