04 May 2005

On Becoming a Weasel

Two interesting items in today's news, although seemingly unconnected, together illuminate one of my continuing pet peeves: state regulation of lawyers. On the one hand, the antitrust lawsuit against Bar-BRI and Kaplan filed in Los Angeles last week (although the news story says "today" and is dated 04 May 2005, the docket shows filing on 29 April 2005). This lawsuit alleges that Kaplan and Bar-BRI agreed to divide law-related testing assistance markets: Bar-BRI would take the bar exams, for which it allegedly maintains a 95% market share (of which I was not a part), while Kaplan would take the LSAT, for which it allegedly maintains a dominant but unspecified market share (ditto). Note that only the idiocy of the bar exam system, divided into fifty-odd incompatible jurisdictions (Wisconsin's diploma privilege is more than made up for by the DC and Puerto Rico bar exams), makes this possible. No bar exam means no market to divide.

In reality, there remains little sense in continuing the stupidity of inability to cross state lines with a law license, except for certain highly specialized matters (like family law)—and even then, there's plenty of guidance and education available to out-of-state counsel. Despite being in Illinois, and despite being licensed in Illinois, I probably know more New York contract law and California probate law than I do the Illinois counterparts, because that's what my practice has required. I also know enough to go research anything I don't know; and a license in state X, I'm afraid, is no guarantee that a lawyer who doesn't habitually practice in a given area in state X knows any more about its law in that area than do I.

Except, perhaps, in being a weasel. Returning to Illinois law/lawyers for a moment, consider this matter. A set of three attorneys wants to represent people involved in a jailhouse beating incident. As it's a civil rights matter, there's a distinct chance of making the government pay attorney's fees. Attorneys apply to a federal district court judge for fees, who denies them (the record thus far isn't entirely clear on the complete circumstances). Attorneys turn around and apply to a state court judge for the same fees, while simultaneously appealing the federal denial of fees. Attorneys end up in front of Judge Frank Easterbrook, who has notoriously little patience with disingenuous and self-interested counsel. Judge Easterbrook then proceeds to remark that

"The main concern in this case is that you were weaselly with the federal court and now you've been weaselly with us. It's now easy to see what Judge [Charles] Norgle was worried about."

No "ouch." Just schadenfreude. But note that absent the state court/federal court nonsense that has outgrown reality, at least in suits of this nature, this wouldn't have happened. And had other attorneys who specialize (darn, there's that word again) in this kind of action been more available to the accused guards…