In the glutted urban areas, such as New York City, thousands of paying jobs could exist if the bar associations promoted them as good policy. However, the state bar/cartels, afraid of the monster that they created with massive lawyer overproduction, have enacted arbitrary rules to exclude new lawyers from basic revenue streams, such as assigned counsel panels, bar referral lists, and other government-funded work.
To focus on criminal practice, which provides a prime example of a state bar/cartel engaging in a generational turf war, the bar assignment and referral services exclude anyone not already admitted into “the club” of state-funded public defender or district attorney offices. Of course, in these austere times, those jobs have a 100 to 1 applicant to job ratio. Therefore, very few new lawyers can enter the assigned counsel and referral club through experience in these government agencies.
These types of arbitrary prerequisites, rationalized as quality control, allow the bar/cartel to limit the flood of new lawyers into the trough of government-funded cases, thus maximizing the number of assignments for older lawyers. The majority of new lawyers can only join the club if they first build a certain amount of cases through street hustling—something that the prior generation, who enact these new rules, never had to do.
His Majesty, Mayor Bloomberg, has made this situation even more difficult by more or less disbanding much of the already exclusive assigned counsel system in favor of firm-style representation, which will make it even harder for younger lawyers to tap into the government revenue used to pay assigned counsel. Also, it increases profits for the cronies who will run these firms and creates yet another pyramid structure in one of the last areas of law that supports solo practitioners. Already, in response to this new restructuring, the Second Department has suspended any new admissions into the assigned counsel system, and it looks like the First Department will slow the trickle of new admissions as well. This essentially shuts down the assigned counsel system for solo practitioners in the five boroughs and Long Island.
This is another example of older lawyers creating arbitrary and inefficient hurdles for excluding the massive glut of new lawyers from government financed work by pretending that new lawyers are too inexperienced to participate (even though these same lawyers are apparently experienced enough to perform 50 hours of free work for indigent clients).
Ironically, this style of cartel control coincides with the crisis in legal representation in criminal defense, family law, landlord-tenant disputes, and many other areas of practice. As The New York Times and a few recent law review articles have documented, our country has spent the last 50 years mocking Gideon v. Wainwright. Right now, in the most expensive city in the country, only residents at 125% of the federal poverty line can access a public defender (i.e. $12,800/year for a single person or $25,000 for a family of four). This leaves a huge segment of poor and “lower middle class” people in the private market looking for discount criminal lawyers who accept credit cards. Many judges routinely disregard the supposed constitutional right to self-representation—an alternative that many misdemeanor defendants attempt when they fail to qualify for a public defender—and they tell these defendants to show up to the next court date with a lawyer or to face further adjournments and delays.
Thousands of potential criminal clients with uncomplicated cases need attorneys, and hundreds of attorneys are available to work for low pay, yet the bar/cartels will not push to establish a solution for connecting these clients and attorneys. Instead, the low-income defendants are left to the ravenous NYC private lawyer shark tank, where plenty of older shysters feed off of them, grossly overcharging for nothing but a plea bargain on the first court date. This system advantages the bankrolled practices with advertising capital, Google payoffs, and all of the other edges that new lawyers cannot compete against financially.
Surely, the city or state could afford a midway subsidization system, where people between 125%-300% of the poverty line would qualify for sliding scale help with their legal bills, almost like a medical insurance deductible or copay. The system would use relaxed standards for newer attorneys, perhaps requiring them to sit second chair for lower compensation in the first case or two, and it would help new lawyers to gain clients and court experience with very little taxpayer money and minimal impact on existing attorney practices (as it would mostly provide court access for many people who would not have afforded a lawyer anyway). Also, it would help with solving some of the Gideon problems.
Obviously, the state bar association in New York (or anywhere else) does not actually care about helping poor defendants or new lawyers. All they care about is maintaining the spigot of taxpayer money, diverted to themselves, regardless of whether they exclude new lawyers from government-funded programs and from obtaining experience.
The ABA, state bar, and even some law schools are continuously chatting about the growing lawyer crisis—as if Armageddon had not already hit the Earth—and about the possible solutions. No one ever proposes low-cost subsidization programs, and no one ever puts their money where their mouth is. Instead, we get the cottage industry of lawyers selling their How To books, seminars, and other bullshit on opening a solo practice. Even the ABA is publishing one of these books—after all, why not scam a few more bucks from desperate law school graduates? (Given the double-digit decline in February LSAT test-takers, after previous double-digit drops, the scammers need to scam while they can).
The hypocrisy of the ABA and state bar associations makes financial sense for them. It was in their financial interest to allow a zillion law schools to open, expand, and charge outrageously inflated tuition, flooding the market with unemployable indebted lawyers. It is also in their financial interest to talk a whole lot about “responding” to a crisis that they can no longer hide, reforming law school curriculum, lowering bar admission standards, expanding post-graduate “fellowship” programs, and providing legal services to the vast number of poor people (as the middle class continues to vanish).
Do not be fooled: this is talk, talk, talk. The status quo will remain, as it is just too profitable for the few people that matter.
Gideon represents a much more naïve legal world, one that assumed that lawyers see themselves as elite leaders of moral and ethical progress. That profession died after the following generation decided to transform legal education into a widget-production business with lobbyists promoting a scheme of total regulatory capture.