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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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