FIORELLO LA GUARDIA, the colorful long-time mayor of New York City, once termed the probate court "the most expensive undertaking establishment in the world." He was on target. The last time the Internal Revenue Service provided solid figures, Americans paid two and a half to three times as much to lawyers for probating wills as they paid to the funeral industry for burying the dead.
The lawyers' bills came to over three-quarters of a billion dollars -- and, projecting that 1972 figure forward in time, the figure must by now be over the billion-dollar mark.
What is more striking is that probate expenses in the United States are as much as 100 times what they are in England, according to University of Missouri law professor and probate expert William F. Fratcher. What's more, Fratcher says, probate typically takes 17 times as long here as in England. The explanation: British probate procedures are vastly simpler, and do-it-yourself probate, without a lawyer, is the rule rather than the exception, as it is here.
Americans are saddled with such enormous legal fees because of the stranglehold the attorneys' trade association -- the organized bar -- has on the public. If any other industry had as tight a lock on competition as the legal profession, it would be declared a monopoly in violation of the Sherman Antitrust Act. But because lawyers write the rules by which all of us must play, we now suffer from the Lawyers' Monopoly.
Here and there one catches hints of the savings that can be realized simply when probate, for one minor example, can be wrested from the grip of the lawyer. Author Murray Teigh Bloom has described how, with the aid of a simplified state probate law enacted over the stormy opposition of the organized bar, Wisconsin resident Adele Conway was able to probate the $100,000 will of her husband on her own, for a total of just $45 (not counting the 30 hours she personally devoted to the task.) The usual legal fee would have been $5,000.
In Maryland, even without a specially simplified probate law, Barbara Thompson of Bethesda probated her husband's $140,000 estate with a couple of hours' coaching from lawyer-legislator (and ardent probate reformer) David L. Scull. Ordinarily the legal fee for such an estate would have been about $7,000. Mrs. Thompson paid Scull $150.
Imagine paying fees of $5,000 to $7,000 for settling estates that nonlawyers handled competently. It seems incredible until you realize that lawyers' probate fees are based not on time spent but on the size of the estate, no matter how simple the legal work involved. Thus, the fee for handling a million-dollar estate would be close to double the fee on a $500,000 estate, even if the larger one was in apple-pie order and required a minimum of legal work. That can result in generour fees. One Wisconsin lawyer told CBS's "60 Minutes" of earning probate fees that came to as much as $481 an hour -- six to eight times his normal hourly rate. And in 1979, Tom Goldstein, legal affairs reporter for The New York Times, reported that probate fees on the estates of the very rich in Florida sometimes amount to more than $1,000 an hour.
The percentage method of calculating probate fees typically finds sanction in state probate statutes --and many probate attorneys have found a way of using those laws to exact the last full measure of fees from their clients.
In most state laws the percentage is supposed to be a ceiling , but the many probate attorneys would have their clients believe it is the fee prescribed by law. Some certainly treat it that way. In the District of Columbia, where the "statutory fee" is 10 percent, lawyer Charles Iverson charged precisely $6,077 for probating a $60,774.24 estate -- a precision topped by the firm Houston & Gardner, whose fee for handling a $47,516.95 estate was calculated to the penny, at $4,751.69.
How do lawyers get away with charging the probate on a percentge basis that has nothing to do with th work they do or the costs they incur? How can they charge lawyers' rates for work (like real estate title searches) that is easily -- and often -- done by nonlawyers? The answer lies in the Lawyers' Monopoly and in its unique nature and powers.
We start with the fact that no one can engage in the practice of law without a license -- the license, in this case, consisting of admission to the bar.
That's not unique: many other trades and professions require licenses. Electricians, for example. Or architects. But their licenses are issued by the state, not by a trade association of architects or electricians.
Lawyers are different. The power to issue or withhold their licenses -- and, more importantly, the power to write the rules lawyers must follow -- is vested, for all practical purposes, not in publicly elected or appointed city or state officals but in the lawyers' private trade organizations: the bar associations, national, state, and local.
But the unique advantages of the legal profession don't end there. Even though the rule-writing power is privately held, the resulting rules typically become embodied in and have the force of state law, which gives lawyers the best of both worlds. They write their own rules -- and then get the state to enforce them.
For example, when the Virginia Bar Association instigated a legal action to prevent the Surety Title Co. from selling title insurance directly to Virginia homeowners, and to require the company to sell through lawyers (at an added cost of nearly $500 on a $60,000 house), the bar association did not have to pay one cent to pursue the case. Instead, that burden was assumed by the state attorney general. The ironic result: Not only were Virginians obliged to pay needlessly high title insurance premiums, they also had to foot the bill for being forced to do so.
Over the decades, the bar succeeded in stifling any price-cutting competition from within the profession by means of two rules: one forbidding price-cutting by lawyers, the other banning all lawyer advertising and in-person solicitation of clients -- so as to deprive any maverick attorney who might invent a better (or cheaper) mousetrap from telling the world how to beat a path to his door. Although both rules have, in recent years, been voided by the U.S. Supreme Court, the court acted only over the prostrate body of a recalcitrant organized bar.
Perhaps more important is the legal profession's power to stifle outside competition. That emanates from the most singular privilege enjoyed by the Lawyers' Monopoly: the power to define the size and the boundaries of its own turf. That is, if the Lawyers' Monopoly decrees that filling in the blanks on a standard, preprinted home purchase contract constitutes "the practice of law," then a real estate broker who performs that normally routine function is guilty of "the unauthorized practice of law" (UPL) -- and the bar enforces its monopoly by causing that broker to be charged with what, in many states, is a criminal offense.
Pause for a moment and examine the phrase, unauthorized practice of law." It fairly vibrates with connotations of illicitness, of a defiance of society's rules. Then ask, unauthorized by whom ? By the Constitution? By an act of Congress or of some other popularly elected legislature? By any public official? No, none of the above. UPL is simply that which the American Bar Association or, more often, a state or local bar group, asserts to be "the practice of law" and therefore "unauthorized" if performed by a nonlawyer.
Observe, too, that the offense lies in the unauthorized, rather than in the incompetent or inadequate, practice of law. UPL actions can be (and have been) brought against work -- planning or probating a will, for example -- performed by full-fledged lawyers -- say, a bank's salaried attorney for one of the bank's customers. To a nonlawyer, this is most puzzling: It is quite acceptable for, say, Lawyer X, as a member of a law firm, to write or probate a will, but let X move to the employ of the bank and undertake the identical tasks and he suddenly becomes guilty of unauthorized practice. Why? Isn't he as qualified as he was before?
One bar answer to that question is that Lawyer X now owes his allegiance to the bank rather than to the customer/client for whom he is preparing the will. That argument may have merit if the bank's interests conflict with the customer's, but that is a danger covered by the bar rules regarding conflicts of interest.
The bar's UPL objections reached a height of illogic in the late 1970s, when the Florida Bar Association leveled unauthorized practice charges against, and sought to close down, a legal clinic manned entirely by lawyers simply because it was owned by layman. As usual, the only complaint came not from the clinic's customers but from the bar association. And, as usual, the matter was put in the hands of an ex-lawyer (a circuit court judge) who, unsurprisingly, recommended to the Supreme Court that the clinic be terminated because there was no evident effort "to balance the Code of Professional Responsibility against profit motives." But as Sandra DeMent, head of a consumerist legal services project in Washington, observed, "The fact is that the profit motive is what operates law firms."
The bar's purported purpose in prosecuting nonlawyers who offer legal services is to assure "competence." An undeniably worthy objective -- diluted, however, by the explicit section of the Canons of Ethics allowing a layman to represent himself, no matter how ignorant of legal rules and procedures.
You would think, too, that if the bar's real concern were for the protection of the public against malpractice, most (or at least some) of the UPL actions would originate from public complaints of being ill-served by laymen helping with uncontested divorces, real estate transactions and similar matters. But as you examine one UPL action after another, you find that the complaint originated not from a dissatisfied customer who suffered from erroneous advice, but from a local bar association.
A typical example is the UPL action brought in 1978 by the Florida Bar Association against Rosemary Furman, a former legal secretary, who was charging just $50 -- about one-tenth the going rate among Florida lawyers -- to help divorce-seeking Floridians fill out the necessary forms and conduct themselves appropriately at the abbreviated courthouse proceedings.
At the time the UPL action was brought, Mrs. Furman had helped hundreds of customers without receiving a single complaint. Indeed, as the Florida Supreme Court noted in its opinion in the case, the bar itself did not even "contest . . . that [Mrs. furman's] customers suffered any harm as a result of the services rendered . . ." But that did not prevent the Florida bar from bringing criminal charges against her.
Clearly, the Lawyers' Monopoly enjoys a degree of freedom that finds few parallels. The existence of such publicly unaccountable power would be troublesome in an industry of peripheral importance to society (say, the sporting goods industry). But granting lawyers a monopoly that is not merely state sanctioned, but state enforced and state protected, is quite another matter since, as Karl Llewellyn has observed, "Only through lawyers can the layman win in fact the rights the law purports to give him."
If the price of sporting goods become excessive, most people can get along without a set of golf clubs, a tennis racquet or skis. But when, through the abuse of monopoly power, the price of legal help rises out of reach, many are obliged to do without "the rights the law purports to give" -- in short, to do without justice.