Competition and Professional Conduct

There are multiple discussions of a mismatch between needs for legal services and available lawyers.  Interesting studies about the hourly rates new lawyers will accept for, studies on the levels of employment post graduation and post-bar.  The context usually ends up being a curious mix of too many and too few lawyers who are both over and underpaid.  Might be, and often a relatively narrow context frames the discussion and the studies.  For example, there is some academic pressure to lower the cutoff for bar passage in California, led for the moment by law school deans.  For some of them, the problem does look to be that their schools are not very good at teaching.  The California Bar really is just a test of what is done in law school, or was when I took it.  Lowering the passage cutoff would increase the number of new lawyers (more accurately, might; there are other factors to consider before coming to a conclusion).  The unduly high cutoff is said to restrict access to lawyers and to contribute to the continuing large unmet need for legal services.  Rarely does the discussion touch on the rules of professional conduct ('professional ethics' as it is usually called).  Too bad, because a part of the too few and too many is tied to the rules of professional conduct.  It is unprofessional for lawyers to do many of the things that effective marketing suggests or to create economically viable entities for delivery of low cost services.  It is unprofessional to pay referral fees, or to use endorsements, or to share legal fees with non-lawyers, etc.  These sorts of rules are leftover from the long gone days when it was a violation of professional conduct rules for lawyers to compete in any form, when bar organization were involved in fee setting, and so on.  The rules remain from a time when lawyers were not seen as part of a business at all.  It is certainly possible for lawyers to effectively represent clients when paid by a business organization -- doctors of various kinds manage to live and serve while employed by an entity that is composed of and capitalized by non-doctors.  A wholesale reconsideration of the rules of professional conduct could help address the unmet needs problems.