Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets‪.‬

INTRODUCTION Few commentators, outside of the practicing bar and the judiciary, find much to recommend in the modern system of professional regulation of lawyers. While the topic (to date) has attracted only a small share of scholarly attention, justifications for the traditional exclusive control exercised by the bar and judiciary over the practice of law have drawn withering critiques from several directions for decades. Bill Simon called for the abandonment of legal professionalism thirty years ago and again in the wake of the savings and loan crisis of the late 1980s and the Enron debacle of 2001, emphasizing the failure of self-regulation and the absence of justification for corporate attorney-client privilege in particular. (1) Deborah Rhode has for almost three decades assailed the failure of the profession to put aside self-interest and live up to its obligation to promote access to the justice system and the interests of consumers of legal services, particularly personal (as opposed to business) legal services. (2) Both Rick Abel and Deborah Rhode made the argument twenty-five years ago that the American Bar Association (ABA) is inherently incapable of producing any regulations save those that promote the interests of lawyers. (3) Stephen Gillers offered a scathing critique in 1985 of the ABA's (then) new Model Rules of Professional Conduct, concluding that "[t]he lawyers who approved the Rules looked after their own." (4) Twenty years ago David Luban called for the deregulation of routine legal services (such as completion of forms, drafting and probating of wills, uncontested divorces) and argued that the attorney-client privilege and related duties of confidentiality (a lynchpin of the bar's justification for key elements of its regulatory regime) were not justified in the organizational (corporate) context. (5) In a careful history of regulation of the unauthorized practice of law (UPL) completed for the American Bar Foundation in 1980, Barlow Christensen reached the "shocking" conclusion that UPL restrictions were no longer defensible. (6) David Wilkins raised serious questions in 1992 about the validity of the bar's defense of self-regulation based on professional independence and unique bar expertise to judge lawyers' conduct. (7) Anthony Kronman saw no hope for the recovery of lawyerly ideals through self-regulation in the face of modern corporate legal practice in his plaint for the "lost lawyer" in 1993: any lawyer seeking those ideals has no alternative, he counseled, than to "stay clear of the ... large-firm practice." (8) Jonathan Macey called for the abandonment of self-regulation of the profession after Enron. (9) Benjamin Barton has recently argued that the judicial protection of lawyer self-governance is one among many examples of how the judiciary systematically favors the private interests of lawyers. (10) There is thus no shortage of scholarly critique. (11)