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93 Wash. L. Rev. 1293 (2018)
The Legal Monopoly

handle is hein.journals/washlr93 and id is 1315 raw text is: THE LEGAL MONOPOLY Renee Newman Knake* Abstract: Lawyers enjoy an exclusive monopoly over their craft, one unlike any other profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules' validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed. Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition and free markets for the public good. The legal profession, however, largely avoids antitrust scrutiny because the courts fall into a special exception known as the state action doctrine, permitting anticompetitive actions by governmental bodies to engage in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying this exception-that the regulators are not themselves members of the regulated profession or industry-is not true for most lawyer regulation. Accordingly, this Article proposes applying federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase access to affordable legal services while preserving professionalism and client protection. IN TROD U CTION ...................................................................... 1294 I. THE LEGAL MONOPOLY ............................................ 1298 A. How Lawyer-Judges Regulate Legal Ethics and the Practice of Law ................................................... 1298 B. Antitrust and Regulatory Capture ............................. 1302 C. Capture of Lawyer-Judge Regulators ....................... 1305 1. The Special Role of Lawyers in a Democracy ... 1305 2. Self-Regulation and Dual Allegiances ................ 1307 D. Antitrust and the Legal Profession: Goldfarb v. Virginia State Bar ..................................................... 1308 E. Commercial Speech Doctrine and the Legal Profession: Bates v. State Bar of Arizona ................ 1312 F. The Consequences of Substituting Commercial Speech Doctrine for Competition Law: Distortion and Arbitrary Review ............................................... 1317 Professor of Law & Doherty Chair in Legal Ethics, University of Houston Law Center; J.D., The University of Chicago Law School. Special thanks are owed to Richard Craswell, Robert Gordon, Wallace B. Jefferson, Mark Lemley, Deborah Rhode, and Bill Simon for their comments as well as the Stanford Law School Center on the Legal Profession and the American Bar Foundation for hosting me as a visiting scholar while I researched and began work on this Article. I am also grateful to participants for feedback at the Yale Law School Floyd Abrams Institute for Freedom of Expression Scholars Conference. 1293

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