© 1996 Karen Selick
 Barricading the Guild Doors
An edited version of this article first appeared in the May, 1996 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Barricading the Guild Doors

There seems to be almost universal agreement among lawyers these days that there are already too many of us in the profession, and that the number of new lawyers permitted to join should be restricted. 

It amazes me that anyone would have the audacity to take this position publicly, yet in last year's Ontario bencher elections, it was difficult to find many candidates who didn't.  That’s why I ended up casting only four votes instead of the permitted 40.

The economic principles involved are easy to understand.  When an industry such as the legal profession is more profitable than the general run of industries, it attracts a lot of players.  But as the market gets saturated, competition forces the competitors to reduce the price of their product.  Eventually, the industry becomes less profitable than before, and perhaps even less profitable other industries, inducing some existing players to leave, and fewer newcomers to join. 

Over the long haul, no industry or occupation can be significantly more profitable than any other without triggering this automatic correction mechanism.

Yet for some reason, lawyers seem to think that these laws of supply and demand should not apply to them--that they have a God-given right to stand no lower than third in Statistics Canada's ranking of occupational incomes, now and forever.  So they dredge up a remedy dating back to medieval times: they try to limit membership in the guild. 

This barricading of the doors is accompanied, as it always was from time immemorial, by the noblest of rhetoric about how it's all for the public good.  If legal fees are forced too low, we're told, lawyers will do shoddy work and clients will suffer. 

But our clients are protected by our liability insurance.  If it works the way it's supposed to, the practitioners who do shoddy work will pay the price for their negligence in the form of higher premiums.  They will be the ones who are driven out of the profession quickly.  As the numbers dwindle, the downward pressure on prices will ease.  The lawyers who are left will be those who are competent, efficient and innovative enough to do the job right and make a reasonable living at it, while still charging prices that the public can afford.

This group of survivors won't necessarily embrace everyone who is already licensed to practise, and it won't necessarily exclude everyone who has not yet obtained his or her license.  There is no justice (and no protection of the public) in restricting guild membership to those who by accident of birth just happened to get there first.  Such a policy is unfair not only to today's young people (some of whom would make better lawyers than many of us who are already licensed), but also to the consuming public, who have a right to seek out and purchase the best legal talent their money can buy.

Certainly it’s sad when people spend several years of their lives training to be lawyers, only to find out the hard way that they can’t make a go of it.  I know a few lawyers who have either quit practising already or say they’re on the verge of quitting, and I sympathise with them.  If the competition gets fierce enough, I might some day find myself in the same position.  Few among us are completely invulnerable to this risk.

However, this possibility must not induce us to abandon all principles.  If lawyers take the position that we are entitled to have our livelihood protected by restricting competition, how can any of us in good conscience argue against another industry or occupation that tries to do the same?

Let’s not kid ourselves: there’s not a business in the world that wouldn’t love to have the same privilege.  Think of the battles that have been fought by the telephone industry, the cable TV companies, automobile manufacturers, banks, doctors, and farmers—to name just a few—all attempting to maintain their profits by preventing entry into their markets. 

Lawyers could hardly look at ourselves in the mirror every morning if we proclaimed that our profession should be protected from "excessive" competition, while everyone else should have to take their chances in the marketplace, where we--wearing our consumer hats--would benefit.

Some lawyers might try to resolve the inconsistency by being willing to grant everyone the same protectionist rights they claim for themselves.  This is a formula for universal impoverishment and stagnation.  What are today’s children going to do if every occupation and industry closes its doors to them?  Would those of us who are now in the workplace have to support them forever in some kind of gigantic welfare scheme?  How would this make society richer?  What would induce those already ensconced in their positions to strive for excellence?  To innovate?  To progress?

No, distressing as it may be, lawyers must recognize that the price system and free competition are what brought the Western world out of feudalistic poverty and into modern prosperity.  Reverting to feudal practices won’t serve anybody’s interests in the long run.

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June 11, 2000