Being an attorney, even one who doesn’t actively practice, requires thick skin. It’s best to embrace the litany of lawyer jokes, like this one.

           Why don’t sharks eat lawyers? Professional courtesy.

The jokes may be innocuous, but they come from an authentic dislike of the profession as a whole. Sure, there are good and honorable lawyers. But there are enough scumbags that the reputation seems at least partially earned.

Lawyers are among the most thoroughly vetted professionals in the nation. In most states one must (take a breath): obtain a bachelor’s degree, achieve a decent score on the Law School Admissions Test, be admitted to an American Bar Association-approved law school, pass the Multi-state Professional Responsibility Exam, graduate from an ABA-approved law school, pass a state bar exam, and run the gauntlet of the state’s character and fitness committee, who can inquire into any and all past employment, academic irregularities, minor legal infractions, and the failure to disclose any of the above. The process takes some effort just to describe. Successfully navigating it is grueling. And yet legal practice is one of the most reviled professions in the nation.

If licensing does so much good, how does one reconcile the hatred most Americans have for attorneys with the extraordinary vetting process they are forced to endure? Sure, one might argue that the vetting was imposed because lawyers are hated and mistrusted. That might be true, though in most cases, and certainly in Oklahoma, those barriers to entry were erected by lawyers themselves. But even if the process really was implemented purely to keep bad actors out of the legal profession (not to limit competition and keep prices artificially high), how do you explain the obvious failure of licensing to improve the legal profession’s reputation? If licensing works, surely such a thorough scheme would enable us to produce more trustworthy and competent lawyers.

Trust and estate attorneys are frequently accused of (and not infrequently disbarred for) taking advantage of elderly clients – whether by putting themselves in the will, making themselves the sole beneficiary of the will, or by mismanaging funds while the client is in a conservatorship. Mass torts lawyers regularly receive millions for class-action settlements while the class they represent gets almost nothing.

Prosecutors have been known to bury evidence that they know would exonerate the accused. The prosecutor in the Kyle Rittenhouse trial shouldered an AR-15, with his finger on the trigger. Just days before, he tried to introduce evidence that the judge had declared inadmissible. The timing of this brazen disregard for the judge’s orders, coming as it did just after the state’s own witness undermined his case, led many to wonder whether he was trying to intentionally get a mistrial so he could start over with a new jury.

So how well does licensing really work? If it were easier to become a lawyer, would we see even more misconduct? Or would the increased competition and the destruction of the legal cartel lead to increased punishments and more concern for propriety? Is it possible that meaningful competition would actually improve the legal profession’s standing?

Lawyers are quite proud of being the only industry that is self-regulating. Lawyers are overseen by other lawyers, as well as judges, who are just lawyers with extra authority and fancy robes. Rather than ensuring the most egregious conduct is thoroughly punished through the criminal justice system to which many lawyers devote their careers, state bars actually shield lawyers. Punishments for first offenses are often limited to suspension of licenses, or in more serious cases, at most, disbarment, but rarely, criminal prosecution. It’s almost as if the profession wants to shield its members from criminal liability. Typically, only outcasts from the profession (or politically expedient adversaries) are given the criminal treatment. We wouldn’t want to set the precedent that lawyers in good standing can be tried for their crimes.

If a profession can be this rigorously guarded and still have such a dismal reputation, doesn’t that make you question the benefits of any occupational licensing? If private certification can distinguish a dermatologist from a brain surgeon, why couldn’t it distinguish the honorable lawyers from the sharks? ​

Mike Davis is Research Fellow at 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.