In the 1990s, free trade was all the rage. An interesting coalition of disparate interests coalesced to convince everyone that this was a good thing. It included academics (either doctrinaire laissez faire economists or those just looking to make a splash), well-intentioned do-gooders (who argued, among other things, that it would raise the standard of living in foreign countries while allowing nearly obsolete blue-collar workers in the U.S. to upgrade their credentials, their jobs, and their fortunes), and, of course, big business which, in spite of whatever words they spoke, were thinking with their wallets.

Decades later, the consensus is that most of the rosy predictions about free trade never happened for the average American. Of course, the issue is far more nuanced than this; trade, economics, and the passage of 30 years makes overgeneralizations foolish. But I revisit this history because some of those dynamics seem to be playing out in our own legal backyard.

We have all heard of the justice gap in this country, and it is definitely real — masses of people unable to afford legal representation effectively barred from accessing and fully participating in the justice system. Part of the reason this exists, and has gotten worse, is dramatic cuts to legal aid support. Another is that the cost of items deemed higher priorities — notably housing, education and health care — have increased astronomically; people are forced to decide where to spend their money and health and their children’s futures beats lawyers. Another problem is on the attorneys’ side; the cost of undergraduate and law school tuition has far outpaced inflation, leading more graduates to chase higher-paying jobs, often outside the state where they grew up.

Years ago, there was a significant push to limit or eliminate Model Rule of Professional Conduct 5.4, which bars non-attorney ownership of law firms. Pushed mostly by big businesses seeking access to the legal services industry, it was suggested that it would be good for law and make it more accessible. The effort failed, and rightly so.

A decade ago, the debate started anew. This time, in addition to big businesses like LegalZoom, others weighed in: academics looking to make a splash (one does not get published defending the status quo) and well-intentioned access to justice advocates figuring that any help is better than no help — even if it means abandoning the traditional foundations of the profession. Again, the efforts largely failed, although some states (notably Utah and Arizona) launched “sandboxes” for regulatory reform. Despite some optimism from advocates and academics, there is still precious little proof that these reforms actually reach the population most in need or that any alternative business model is sustainable.

Here in Michigan, many stakeholders — from the Supreme Court to your Bar — are devoting tens of thousands of hours to improving our system and crafting new solutions. This includes increasing access for pro se citizens in high-need areas like landlord-tenant or veterans’ care, making our courthouses more accessible and user-friendly, and revising court forms to reflect plain English. This effort also includes pilot programs endorsed by the Justice for All Commission that expand the ability of paralegals and associated professionals to help clients navigate the legal system.¹ And, of course, we are pushing for increased legal aid spending and greater donations of time and treasure by our attorneys, whether to pro bono services or contributing a minimum of $300 annually to the Michigan State Bar Foundation Access to Justice Fund.

There are others pushing more dramatic proposals. Some of the same groups which previously pushed for deregulation of the practice of law now want to dramatically change the definition of what it means to be a lawyer. In their sights are two pillars of traditional attorney practice: law school and the bar examination. One leader in the deregulation push now advocates, for example, that law schools should eliminate all written exams.² The American Bar Association Legal Education Section council (currently chaired by former Michigan Supreme Court Justice Bridget McCormack) also recently voted to continue the push for accreditation of fully online law schools.³

These same groups advocate for alternatives to the bar examination, something that has caught on in Oregon⁴ and Washington.⁵ The ABA Legal Education Section council has urged states to “create diverse pathways to licensure.”⁶ Yet some resist. As reported recently regarding reform efforts in California:

Consumer Attorneys of California CEO Nancy Drabble addressed the topic ... at the organization’s annual convention in San Francisco[.] She noted that other states are also engaged in similar efforts to find an alternative to the test.

“There is a movement in other parts of the country, primarily being spearheaded by academics, who say the way to improve access to justice is to have these people who are not lawyers and may not even be human beings, it’s going to be an app providing legal services,” Drabble said. “We in California so far have been successful in derailing this.”⁷

Notably, most of these proposals reinforce law schools’ role in the process (as supervisor of clinical programs, for example) while failing to address how any standard at all will actually exist as to the quality of the “diverse” experiences purportedly standing in for the bar exam or who will enforce it.⁸ Indeed, this is all a bit of “déjà vu all over again,” since it is a return to a patchwork of quasi-requirements administered locally with little promise of rigor, which is what we had prior to widespread adoption of the bar exam.⁹ The bar exam has its conceptual defenders¹⁰ but any Google search will lead you to a lot of academic literature advocating for abolition.

A number of factors contribute to the vexing nature of these issues. First among them is the dire need for more attorneys serving the less affluent among us and greater access to the legal system for citizens. But law schools (let alone undergraduate institutions) aren’t interested in reducing tuition and, even if they did, the availability of higher paying jobs will always drive attorneys away from public interest. So adjusting the system to let a lot more lawyers in the door doesn’t necessarily correlate to addressing the most pressing needs. Moreover, while academics hypothesize about alleged benefits of tearing down these institutions — not unlike when they advocated for tearing down MPRC 5.4 — they do so without any evidence of either benefits or the scope of (intended or unintended) harm.

Perhaps the most infuriating aspect of this debate is that whenever lawyers speak up in opposition, they are pilloried as trade union protectionists looking out for their own skin. Perhaps, on the contrary, it is attorneys who know precisely the value of these institutions and foundations for practice and know the mischief that can ensue when standards are lowered. Not all barriers to entry are unfair, nor is it just about creating obstacles. While undoubtedly flawed and subject to improvement, rigorous academic training and basic skills competency matter, just as they do in any other profession. And the value goes far beyond skills. If the law wants to continue as a profession with obligations beyond those to ourselves, that foundation has to come from somewhere. Law school and the bar exam both contribute to that, although obviously not guaranteeing it.

None of this is to say that reform or even abolition of the bar exam is not the right answer. But this is pushback on the frankly disrespectful way many of the so-called reformers treat these venerable institutions and those who find some merit in them. And it is a plea that as the push for change continues, those who live in the real world — that’s you, my fellow attorneys — think deeply about these questions and contribute your voice. As the famous quote goes, hope is not a plan. Any alternatives need to be based upon more than frustration with the status quo and the hope that something else will work. It must be rigorously tested and deeply considered. Our pledge to protect the public, as well as our judicial system, requires nothing less.