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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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The Lawyer Protection Racket

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Forty-one-year-old Stephen Glass wants to practice law but the California Bar Association won’t let him. In California, like every other state, people are prohibited from practicing law without official governmental permission, which is manifested through the issuance of a state license to practice law.

What’s the California Bar Association’s beef with Glass?

In the late 1990s, as a writer for the New Republic Glass published a series of false and deceptive articles. When the truth came to light, Glass’s journalistic career was shattered. Nonetheless, he rehabilitated himself, graduated from Georgetown Law School, and passed the bar exams in New York and California.

But the people who determine whether he should be issued a state license to practice law have determined that his conduct in the 1990s was so egregious that it far outweighs the evidence of rehabilitation. They feel that they have to protect the people of California from Glass.

What a crock. There is one and only one purpose for state licensure of lawyers — to limit the number of people who can provide legal services to consumers in order to artificially keep the incomes of lawyers higher than they would otherwise be. The fewer the people providing legal services, the higher the income for those who receive the privilege of a license. The more the people providing legal services, the lower will be the income. It’s simple supply and demand.

The notion that licensure protects people from incompetent and unscrupulous lawyers is so laughable that it’s difficult to understand why so many people continue to accept it. The law profession is filled with lazy, incompetent, indifferent lawyers as well as frauds, charlatans, and crooks. Every single one of them was issued a license by the state.

Consumers regularly have their cases botched by those lawyers. Yet, can they sue the state for having issued a license to practice law to them? Can they sue the state for having represented that lawyers who receive licenses are competent or of “moral character”?

Of course not! While consumers are free to sue such attorneys for malpractice or malfeasance, not surprisingly the state officials who issued the licenses to practice law to those people are immune from suit. Isn’t that nice?

Glass’s case is now before the California Supreme Court, a body consisting, of course, of licensed lawyers.

In an editorial on the case, the Los Angeles Times says that the Court should overrule the bar examiners and order the issuance of the license. The Times says that Glass’s long-ago journalistic sins should not be used to disqualify him from practicing law.

I’ve got a better idea, one that doesn’t automatically accept the notion that the state should be determining who practices law and who doesn’t. Why not simply abolish occupational licensure entirely, not only for lawyers, but also for every other occupation, including doctors, hair dressers, shoe-shine people, and everyone else whose occupation is protected from unlimited entry?

Statists say that consumers are too dumb to determine which lawyer to retain. They say the state has to serve as their parent, protecting them from the possibility that they might hire a bad lawyer. But, as stated previously, people already hire bad lawyers, ones that the state has told people are competent and honest. In the absence of licensure laws, at least people wouldn’t be seduced by the state into believing that all practicing lawyers are competent and honest.

The real issues are:

(1) Why shouldn’t people be free to engage in any occupation without having the permission of the government? Isn’t that a fundamental, God-given, natural right of life, liberty, and the pursuit of happiness?

(2) Why shouldn’t people be free to choose whomever they want to be their lawyer … or doctor, hair-dresser, shoe-shiner, or any other provider of goods and services? Why shouldn’t people be treated as adults rather than as children? After all, aren’t they all graduates of America’s state educational system? Why should the state serve as their daddy, especially since daddy does such a bad job in parenting them?

Stephen Glass shouldn’t have to seek permission from any state official to provide legal services to others. Whether Glass gets clients is a matter that should be left only to consumers in a free-market environment—that is, one in which the market is freed of governmental privilege.

Licensure is nothing more than a protection racket, one that protects licensed lawyers, including incompetent and dishonest ones, from free and open competition. The best solution is to abolish the racket by repealing licensure laws.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.