Stumbling Into the Bar

A long-overdue, and considerably understated, attack on bar exams by the dean as Michigan State asserts that bar exams don't necessarily have a high correlation with competence. Well, duuuuuuuh! The profession really shoots itself in the foot with its own entry practices. Personally, I would eliminate the bar exam entirely, and sink the funds and personnel assigned to it into real, probing background checks and three-on-one interviews—all to be performed during a six-month mandatory internship. I would also get rid of the bar's prejudices against overt specialization, perhaps even including national specialty examination boards. All of that is just part of my not-so-hidden agenda for national, not state, regulation of lawyers.

I see the results of incompetent lawyering on a frighteningly regular basis. At least two or three times a month, a potential client comes to me with a literary contract signed in the past after taking a local lawyer's advice on the contract terms. Almost all the time, said lawyer did not make problems with that contract that I can spot on first reading apparent to the client; and at least half the time, one or more of those problems is at the heart of why that potential client contacted me in the first place. The cause of this is simple: Literary contracts are not like other contracts, not even like other personal-services contracts. (And they are much closer to personal-services contracts than to, say, a commercial real estate lease.) However, I'm not supposed to say that I am a "specialist" in publishing law and authors' rights. By so stating, I "deceive the public" (I'm quoting from a relevant ethics opinion) into believing that I "have been certified on that expertise by a regulatory board" and that I "have passed a formal course of training beyond that required for general admission to the bar." So I don't say I'm a specialist; even though, in reality, that's a better description of my practice and experience, and the practice and experience of probably 80% of the lawyers out there, than any other word.

So, rather than prohibit using the word "specialist" because it might make lawyers look too much like doctors, who do have a post-licensing specialty certification system, the profession should develop its own post-licensing specialty certification system. That is, conform our licensing practices to reality. That, however, is probably too much to expect from a profession that appears more interested, as a whole, in reducing competition than in ensuring the competence of its members and the best representation for its clients.