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I'm aware of a couple states that have alternative methods to become a lawyer but most states stipulate that all practicing attorneys must A. complete courses from a recognized college and B. stay in good standing with the state bar.

What laws give authority to the non-gov state bars, who in turn dictate which schools and education are required? Why isn't law practiced freely on an open-market where merit alone is all a person would need to build a law practice?

irth
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    Mandatory state bars typically are governmental bodies. As a general rule, they're agencies of the state court system. – cpast Jun 08 '15 at 23:31
  • @nomen agentis, I think the first amendment allows for freedom of speech in conjunction with freedom of assembly which would not allow a court to dictate who speaks on behalf of someone compelled to defend themselves. – irth Jun 10 '15 at 22:27

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States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates.

For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source

State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts).

cpast
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  • That's an excellent explanation. The first thing that comes to mind is freedom of speech so that a person compelled to court can choose whomsoever they wish to represent them. More than a little conflict of interest if one's coices of represent ation in court is licensed by the same compelling body. – irth Jun 09 '15 at 00:39
  • @irth That's not freedom of speech you're talking about; it's right to counsel. Freedom of speech has nothing to do with choice of counsel in court. It has repeatedly been held by every court that has considered the matter that regulating who can practice law before a court doesn't violate the right to counsel. You have a right to represent yourself, but other than that, courts (which have authority to control proceedings before them) have a strong interest in making sure that the people making legal arguments know what they're talking about and aren't just wasting the court's time. – cpast Jun 09 '15 at 00:53
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    I would add that the legal profession is far from unique here. You can't just decide you're a doctor and start treating patients, and you can't just decide you're an architect and start designing buildings. – chapka Jun 09 '15 at 02:26
  • @cpast that logic sounds a little misleading. If a person can represent themselves, then the court has little more authority to control proceedings than making sure lawyers are trained according to spec. What body of laws does this fall under? – irth Jun 10 '15 at 20:09
  • @chapka thanks for chiming in. there are many healthcare providers that don't have an MD.. naturopaths, traditional chinese medicine practitioners, etc. Correct me if i'm wrong but an MD allows doctors to prescribe drugs which is a little more dangerous than representation in court. Similarly with an architect, they can indeed just decide to design and build something unless the specific municipality has codes to abide by and whatnot. – irth Jun 10 '15 at 20:12
  • @irth The authority of courts to control proceedings before them is part of the general judicial power; it is considered inherent authority implied by a court's authority to hear cases and make decisions. A person representing themselves is required to obey court rules and can be sanctioned (or even jailed, in extreme cases) for violating them. – cpast Jun 10 '15 at 21:03
  • For attorney licensing, judges in England (where the US judicial system is derived from) determined that people who know nothing about the law waste everyone's time and hurt their clients, so only people who know something about the law can address a court. You have a right to represent yourself, but other than that a court can say "only people who have some clue what they're saying." A bad lawyer gets you imprisoned, which most people would consider seriously hurting you. And it is illegal to practice medicine without a license; states license alternative medicine providers.. – cpast Jun 10 '15 at 21:05
  • Thanks again, @cpast. I don't disagree with your advice but feel that it's only advice and not law. Are there statutes backing up the courts legitimate authority to tell a person that ONLY themselves or a member in good standing with the relevant bar can be heard in court? – irth Jun 10 '15 at 21:50
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    @irth For federal courts, specifically https://www.law.cornell.edu/uscode/text/28/1654 and also (more generally) https://www.law.cornell.edu/uscode/text/28/2071 (explicitly giving courts rulemaking authority) and https://www.law.cornell.edu/uscode/text/18/401 (court has authority to punish contempt). Were those statutes not there, a court would still have authority, because it's part and parcel of the authority of a court to hear cases and make decisions. Not all laws are statutes. – cpast Jun 10 '15 at 22:03
  • @cpast thanks those are helpful links. Is the court protected from a law suit if by denying a defendant the right to choose council, it can be proven they would have worse representation? – irth Jun 10 '15 at 22:07
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    Let us continue this discussion in chat. – cpast Jun 10 '15 at 22:09
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    What about the problem of vagueness and the definition of practicing law? – Mr. A Apr 11 '16 at 13:33
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    @irth Doctors must be licensed; they may or may not hold an MD degree (consider osteopaths). The right to prescribe medications depends on the license, not the degree. States license doctors, as they do architects. – phoog Apr 11 '16 at 20:58
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Most state constitutions explicitly adopt the common law of England as the basis for their laws. England required and requires attorneys to be called to the bar after fulfilling certain educational requirements.

user26732
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