The Rule of Law – Part 8

The lawyer-judge bias in the American legal system.

Continuing this essay series on the rule of law, this essay explores Benjamin Barton’s book The Lawyer-Judge Bias in the American Legal System, a fascinating discussion of a little-remarked upon but very important aspect of our legal system.

Barton begins his book as follows:

I seek to demonstrate that lawyer-judges instinctively favor the legal profession in their decisions and actions and that this bias has powerful and far-reaching effects on our country. In this book I gather judicial decisions from diverse areas of the law and boil them down to a simple proposition I call the lawyer–judge bias: when given the chance, judges favor the interests of the legal profession over the public … There are many reasons for this bias, some obvious and some subtle. At bottom, it occurs because regardless of political affiliation, judicial philosophy, race, gender, or religion, every American judge shares a single characteristic: every American judge is a former lawyer. This shared background has powerful effects on the shape and structure of American law and has created the lawyer–judge bias … [L]awyers are the only American profession to be truly and completely self-regulated. State supreme courts govern the regulation of lawyers in every state in the union, often as a result of state supreme court decisions claiming an “inherent authority” to govern the legal profession. In contrast, state legislatures control the regulation of every other profession. Many of these state supreme courts have taken this regulatory authority and delegated it back to state bar associations. Predictably, this level of self-regulation has been exceptionally helpful to the legal profession and has often resulted in regulation by the lawyers, for the lawyers … [A] legal malpractice case is much harder to win than is a medical malpractice case. Moreover, the common law tort of malicious prosecution has been shaped so that it is much easier to sue a criminal complainant or civil plaintiff than to sue the lawyers who represented them … Why are clients barred from pursuing Consumer Protection Act claims against lawyers in many states? Why are lawyers granted special common law liens to help them collect against former clients? Unsurprisingly, special judge-created rules have made the business of law much easier to pursue … Why are American law and procedure so complex? At least part of the answer lies in the relationship between lawyers and judges. A complex system works out better for lawyers and appellate judges, partly because complexity offers all parties more room to operate, partly because a complex system generates business for lawyers, and partly because many lawyers and judges simply enjoy the process of complex legal thought. Because complexity works for lawyers and judges, and they are the repeat players in the game, complexity is what we get, despite its great cost to litigants and the public.

Regarding the regulation of the legal profession:

The regulation of lawyers in America is handled differently from the regulation of any other American profession. Doctors, architects, engineers, teachers, and other professionals are all regulated in the first instance by state and federal legislatures. The legal profession, in contrast, is governed in all fifty states by state supreme courts … [T]hese courts delegate the actual nuts and bolts of governing lawyers to bar associations or other administrative bodies. Predictably, this regulatory structure favors the interests of the legal profession over those of the public … In 1891, the ABA [American Bar Association] Committee on Legal Education produced a sixty-page report on entry to the profession that proved remarkably prophetic. The report recommended a number of changes that would eventually come to fruition, including state supreme court control over entry, written bar exams, a three-year requirement for law schools, and specific law library and facility requirements. The report's very first resolution was to “strongly recommend that the power of admitting members to the Bar, and the supervision of their professional conduct, be in each state lodged in the highest courts of the State.” To understand why, consider the experience of the nascent Virginia State Bar Association, which was formed in 1888 and immediately sought to raise entry standards in the state. Its first try was a bill proposed to the general assembly requiring a new, written bar examination. This act was defeated. In 1896 the bar tried again, but this time suggested that admission be handled by the state supreme court; this time, the act passed. The first written bar examination was given less than a year later, on January 8, 1897. During this period, state supreme courts around the country began claiming an “inherent authority” to regulate the legal profession as an outgrowth of the constitutional separation of powers between the legislative and judicial branches … It is certainly true in … every [] state that the constitution creates a judicial branch. It is also true that the creation of a judicial branch necessarily assumes that the judiciary will settle legal disputes, however defined. That said, the court's use of the existence of a judicial branch to create whole areas of responsibility outside of the obvious power to decide lawsuits is a massive leap … [C]onsider the massive conflict of interest in these decisions. In each of these cases the state supreme court itself is defining the extent and reach of its own power. Moreover, the justices are doing so as former lawyers who are being heavily lobbied by bar associations. The inherent authority cases strongly evince the lawyer–judge bias: when faced with an issue that affects lawyers the courts reach the conclusion that best suits the profession.

Regarding bringing a case of legal malpractice:

[T]he ABA drafted its most recent spate of changes with an explicit eye toward limiting the possible use of the rules in lawyer malpractice suits … The irony is that the effort to make compliance easier has done almost nothing to increase enforcement. Lawyer disciplinary authorities are notoriously underfunded, and actual enforcement of anything beyond blatant violations of the rules is rare … In reading about bar association control over entry and conduct, one might wonder whether this behavior has raised any antitrust concerns. Should we not be concerned when a trade association has such significant control over the terms and conditions of a government-created monopoly such as a law license? Although bar associations have made some changes in response to antitrust law, the existence of a state action defense – in the form of state supreme courts claiming the exclusive right to regulate lawyers – has left the role of the bar in lawyer regulation largely beyond antitrust challenge.

As Barton points out:

American lawyers have a unique regulatory structure. Every other profession – from cosmetology to medicine – is regulated in the first instance by state or federal legislatures. State legislatures generally set up regulatory agencies for each licensed profession … [E]very other American profession must push its policies and regulation through a legislature made up of members who generally practice another profession (ironically, many state legislators are lawyers). As such, state legislatures serve as a check on the other professions. If any profession overreaches or the regulation grows too self-interested, the state legislature can always jump in. The recent history of tightened regulation of the medical profession on the federal and state level is instructive … The critical point is that the choice of a governing institution can affect the equilibrium between the narrow professional interest and the public interest. If the public can influence an institution more easily and cheaply, the equilibrium shifts in favor of the public. Likewise, as industry costs of purchasing regulation rise, more public-minded legislation should result. If the government entity makes public input particularly difficult, however, the equilibrium shifts in favor of the narrow interests.

Barton writes that “There are institutional, personal, and political reasons that courts are a poor choice for regulatory authority over lawyers”:

[W]hen regulating lawyers, state supreme courts act as legislators, not adjudicators, and are hardly independent in that role. In fact, state supreme courts are uniquely vulnerable to lobbying by lawyers … [A]ll state supreme court justices are former lawyers, which usually means that they view the legal system and lawyer regulation from a lawyer's point of view. Most state supreme court justices are also elected and count on lawyers for donations and political support. Although state supreme courts are quite susceptible to lawyer and bar association lobbying, they are particularly inaccessible to lobbying by the public. As a logistical matter, courts are not set up to be lobbied. The public cannot stop at a justice's chambers to complain about lawyer regulation. Justices do not have large staffs to respond to constituent complaints or lobbying. Courts are organized to minimize the effect of public opinion and lobbying on judges. A short travelogue of the steps a citizen would need to take to alter lawyer regulation helps elucidate the multiple hurdles involved in any lobbying effort. Consider, for example, the necessary steps for a group of citizens seeking to raise the rate of disbarments for unethical lawyer conduct. In a unified-bar state, the group would have to appeal to the state bar association. The state bar association is unlikely to support any measures that disbar more lawyers; lawyers already view the disciplinary system skeptically. The group could take its complaint to the state supreme court, although it is difficult to imagine how the group would gain access. As noted above, state supreme courts are purposefully designed to avoid the possibility of lobbying by disgruntled citizens. If the state supreme court did not overrule the bar association's decision, it would be extremely difficult for the citizen group to punish the supreme court justices. If the justices are appointed, their removal would require impeachment proceedings – a nearly impossible task. If they are elected, the group would have to organize an opposition campaign. The campaign would likely flounder because it would require substantial voter education about the role of state supreme courts, as well as education on the state of lawyer discipline. Even with an educated electorate, voters presumably vote for justices first and foremost on the basis of their abilities as judges, not as regulators. In comparison, a complaint to the legislature is a more straightforward process. State supreme courts are also very busy. Much has been made about the “caseload crisis” in the federal and state courts, including state appellate courts. State supreme courts are relatively small and cannot grow because of logistical and constitutional concerns. Given that judges are faced with a scarcity of resources and a desire for a modicum of leisure, something has to give. Justices are naturally reluctant to forgo their responsibilities as judges, so the abdication of their regulatory responsibilities is a convenient solution ... Therefore, we would expect supreme courts to delegate as much of their authority over lawyer regulation as they can, to preserve leisure and to maximize the time and energy they have to spend on their primary job – deciding cases. In practice, this has been exactly the outcome. State supreme courts have satisfied their own and lawyers’ interests by delegating virtually all their regulatory authority under the vaunted system of “lawyer self-regulation.” This delegation kills two birds with one stone: state supreme courts maximize delegation and please the only players who care, lawyers. Lawyers are happy because they maximize their control (or capture to use a more loaded term) over their regulation. The ultimate example of this phenomenon is the unified bar: state supreme courts literally delegate almost all their regulatory authority back to lawyers. A more universal example is state supreme court reliance on the ABA to draft the rules that govern lawyer behavior.

Barton gives the following examples of how this dynamic leads to biased results:

A comparison between two different areas of lawyer regulation, one that lawyers care about and one that they do not, demonstrates this bias in practice. First, consider entry barriers. From the late nineteenth century, bar associations have lobbied relentlessly for higher entry barriers. These efforts have proven enormously successful, and entry is now guarded by well-oiled machines and multiple and growing requirements. In comparison, attorney discipline is a low priority for bar associations, for obvious reasons. The ABA itself, among others, has determined that attorney discipline is and always has been a neglected area. Attorney discipline is underfunded. There are backlogs for investigations. In most states the process is secret. Up to 90 percent of the complaints are summarily dismissed, partly because many complaints are over fee disputes or “mere negligence” that is not generally covered by the Model Rules of Professional Conduct.

Indeed, Bloomberg Law recently profiled a notorious filer of meritless patent lawsuits, who has never faced sanctions from a state bar. According to Bloomberg Law:

[William] Ramey LLP is among the most prolific filers of patent infringement lawsuits—about 260 in 2024 across the country. His five-lawyer firm handled at least 25% of patent suits filed in 2024 in the US District Court for the Western District of Texas, one of the busiest US patent courts. Along the way, he’s been admonished by judges for filing frivolous lawsuits and motions, submitting sloppy documents, missing court appearances, and violating court and attorney conduct rules. Judges have granted, fully or partially, at least 19 requests for sanctions and attorney’s fees against Ramey, his firm and/or clients, totaling about $2 million, according to a Bloomberg Law analysis. While facing criminal charges of attempted sexual assault, Ramey answered “no” to a question on a Covid-era Paycheck Protection Program application asking whether the firm’s owner was “subject to an indictment, criminal information, arraignment” or other proceeding. Despite the sanctions history and a judge’s ruling that he was deceptive on the PPP application, Ramey has never faced action from a state bar, federal court disciplinary committees, or the US Patent and Trademark Office … Ramey’s strategy of contesting sanctions is effective, [Jonathan] Stroud said, because most defendants conclude the expense of fighting through appeals is more than amounts they’re trying to collect and it won’t lead to bar discipline.

Regarding entry standards for the legal profession, Barton writes:

Both lawyers and justices have powerful reasons to favor inflated entry standards to the profession. Raising entry barriers has been the sine qua non of the formation of modern bar associations and lawyer lobbying. Lawyers, of course, have an excellent reason to favor higher entry standards: they decrease the supply of lawyers and raise the price for legal services. Barriers to entry, such as the bar requirements, naturally result in fewer practitioners, greater demand for existing lawyers, and higher prices. The higher prices are a windfall for the current members of the profession. They enjoy the higher prices without having to meet the new, higher standards because they are “grandfathered” in. This explains why every complaint about current practitioners is solved by a burden on future practitioners. Compare law school to business school. No one needs to go to business school. Many businesspeople will even advise students against going to business school if they can avoid it. If a student can get a good job without an MBA, he of she should skip the investment in time and money. Moreover, no business in particular has to hire MBAs. If an MBA is seen as valueless, businesses can always hire economists, college graduates, or whomever they want. Accordingly, business schools are very responsive to both sides of their customer base: they work hard to make the education worth it to the students who enroll, and they work hard to ensure that their graduates offer significant value to employers. MBA programs must justify their existence to both students and employers; this fact alone makes them more innovative and focused on necessary business skills. Law schools, though, are protected by the licensing requirement and are comparatively hidebound and nonresponsive.

In contrast, regarding attorney discipline for bad conduct:

[H]arm should be remediable through a later malpractice action … [L]egal malpractice … is the law that covers clients suing lawyers for harmful, substandard performance. Medical malpractice is used as a comparison point, as the medical and legal professions are somewhat similar, but it is much easier to successfully sue a doctor than it is to successfully sue a lawyer in the United States. It is much harder to prove legal malpractice than medical malpractice. This is because lawyers have enjoyed several unique advantages as defendants in malpractice actions and because doctrinal changes that have been applied in medical malpractice have been barred or adopted much more slowly in legal malpractice. Courts have justified many of these differences on the now-familiar ground that lawyers are special and need special treatment. Legal malpractice is generally treated as a tort action based in negligence. The traditional negligence action requires proof of four elements: (1) a duty between the plaintiff and the defendant; (2) a breach of that duty; (3) causation – proof that the breach caused the plaintiff's injury; and (4) damages from the injury. Because these four elements are hundreds of years old, each has its own quite complicated law. Still, the general framework encompasses the ways in which an injured party can sue a negligent injurer for recompense … [L]egal malpractice, as other negligence-based torts, requires a finding of a duty and a breach of that duty as part of a claim. It would seem that a list of binding professional obligations, such as each state's rules of professional conduct, would be a natural place to define each lawyer's duties. Moreover, one might think that the ABA and the states would encourage this use, as adding legal malpractice actions as enforcement mechanisms for the rules would greatly increase the likelihood that lawyers would follow them. The Model Rules state quite clearly, however, that “[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” The damages for legal malpractice are also distinct. Punitive damages are rarely awarded in legal malpractice cases. The decision as to whether to allow the jury to award punitive damages rests with the discretion of the trial judge. Emotional-distress damages are also usually not recoverable in a legal malpractice action. Emotional-distress damages have generally been limited to truly egregious cases, sometimes under a foreseeability standard and sometimes as a matter of public policy. Judges rarely find that a lawyer can foresee emotional damages from her malpractice. By contrast, punitive damage awards against doctors are so common that they have been described as a key aspect of the medical malpractice “crisis.” Damages for emotional distress are likewise regularly awarded in medical malpractice actions … Overall, the structure and treatment of legal malpractice further establishes that judges have analyzed and designed the tort with a unique understanding of, and sympathy for, the lawyer-defendants before them – a clear example of the lawyer–judge bias. Courts are more favorable to lawyers than to other professionals.

Barton then considers the protections for lawyers accused of maliciously suing someone:

The common law tort of malicious prosecution actually covers two distinct types of torts. One is for a baseless civil lawsuit and the other for a baseless criminal prosecution. There has always been concern in America over the phenomenon of baseless lawsuits; that concern has heightened in recent years as complaints about the legal system and lawyers have grown more heated. The problem is somewhat blunted in other common law jurisdictions by their cost-shifting requirement. In England and most other common law jurisdictions, an unsuccessful plaintiff must pay the defendant's costs in the suit, and vice versa if the plaintiff wins. There are other options for battling this problem, however, including court sanctions or professional discipline [but] these tools are rarely used. Another option is the common law tort of malicious prosecution. Establishing malicious prosecution requires the proof of four elements: “(1) the initiation or continuation of a lawsuit; (2) lack of probable cause; (3) malice; and (4) favorable termination of the lawsuit.” Malicious prosecution is a very hard tort to prove. Indeed, courts have long held that “suits for malicious prosecution are viewed with disfavor in law and are to be carefully guarded against.” Each of these elements is challenging for a plaintiff. Probable cause has quite a low standard of proof and malice is a very hard and subjective thing to prove. The “favorable termination of the lawsuit” prong is also quite stringent, as it states that the malicious-prosecution plaintiff must have won every aspect of the case, on the merits. Procedural victories, settlements, or a finding that one part of a lawsuit was baseless and malicious are insufficient. A suit for malicious prosecution may be brought against the original litigant and/or that litigant's lawyer. Malicious prosecution's disfavor “is particularly true when the defendant is an attorney because of the attorney's professional duty to represent his client zealously.” There are a series of lawyers-only modifications to the already rigorous elements listed previously that make a malicious-prosecution suit against a lawyer even harder to plead. Although the use of the very low probable cause standard to file a suit already “allows for a liberal construction,” as “applied to attorneys, the term is given an even broader interpretation because if attorneys cannot act and advise freely, parties could not obtain their legal rights.” The fact that the underlying plaintiff had no probable cause cannot be imputed to the lawyer. Instead, probable cause is measured by what the lawyer personally knew about the case at the time. The lawyer is permitted to rely upon the statements of the client without further investigation: The law is well established that “an attorney is entitled to rely in good faith upon the statement of facts made to him by his client, and is not under a duty to institute an inquiry for the purpose of verifying his statement before giving advice thereon.” If the client falsifies the facts, there may be a liability which attaches to the client, but the lawyer is not liable if, without more, he acts in good faith upon the facts stated by the client. In short, a lawyer is justified in going forward with a claim based solely on the client's word, regardless of what any further investigation might have shown. Moreover, “even if [a lawyer] has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.” This means that even if the lawyer knows that the underlying claim is legally faulty, the lawyer is allowed to go forward on the suit as long as that decision is not based on a desire to harass the opponent or to force a settlement or for another “improper” motive. Notably, a “desire to earn a contingent or other fee does not constitute an improper motive.” This also means that even if a claim is obviously barred by the law, a lawyer can argue that she was seeking an appropriate change in the law and escape liability. It is hard to imagine that a lay judge, as opposed to a former lawyer, would have crafted these defenses to malicious prosecution.

Barton continues:

The criminal version of malicious prosecution is also quite difficult to prove, with a notable additional hurdle: prosecutors are absolutely immune from suit for any and all actions taken in prosecuting cases. This means that a wrongfully accused defendant who was convicted because of prosecutorial misconduct has virtually no civil recourse. Absolute immunity has been granted to prosecutors who withheld exculpatory evidence, presented fabricated or false evidence, influenced witnesses and prepared perjured testimony, breached a plea agreement, or conspired with a judge to predetermine the outcome of a case.

In the next essay in this series on the rule of law, we’ll see what Barton has to say about the doctrine of judicial immunity, which shields judges from lawsuits, no matter how bad their opinions might be.