Sunday, April 23, 2006


In 1950, at UNM School of Law, they had a Professor who taught two required courses: constitutional law, and legal writing. If you could not pass those courses, it was the highway. The students had a nickname for the Prof. It was “The Hatchet.”
The Professor announced one day in class that it was his job to prevent the incompetent from getting out of law school and taking a shot at the bar exam.
Neither of his courses was necessary for a student to become a competent lawyer, not even for the niche of constitutional law, nor legal writing.

Prior to 1934, a person could become a lawyer in New Mexico by studying for the bar, through apprenticeship or “reading” law, then passing the bar exam required by the Supreme Court of New Mexico. In 1934, the legislature enacted a law that required a person to graduate from a law school before that person could take the bar exam, and further required that the law school must be one approved by the American Bar Association. New Mexico was the first state in the nation to pass such a law. This gave the ABA the power to limit the practice of law in New Mexico. At that time, New Mexico had no law school at all; and it did not get one until 1947.

In 1956, the New Mexico Supreme Court ruled, in Henington v. Bar Commissioners, that the requirement enacted by the legislature in 1934, was constitutional. The challenge, among others, was that the statute unlawfully delegated legislative authority of the State to a private group of individuals (a national bar association). The Court did not discuss this one, the most important challenge, but nevertheless upheld the statute.

We were aware at that time that three of the five justices sitting on the Supreme Court had not graduated from an ABA approved law school; and two of the five had never graduated from any law school. They were competent; just as many of the Founders, and many in Lincoln’s time (including himself), without having gone to law school.

What is our point? It is this. The only legitimate reason for requiring competence in lawyers, is to protect the public. Apprenticeship is the best preparation for the practice of law. Apprenticeship should be allowed.

That is not the major point, however. The practice should be broken down into parts, so that one who is competent to practice one part, may do so, without also having to be skilled in other parts. The podiatrist is qualified (and permitted by law) to cut the carbuncle off the foot. The septic tank installer is qualified (and permitted by law) to install a septic tank (even though not legally qualified to practice all “plumbing”).

One who is qualified to practice in magistrate court, or other Courts of limited jurisdiction, should be allowed to do so even though she is not qualified to practice in a Court of general jurisdiction (such as District Court), or the appellate Court. If this were permitted, the public could be protected from the incompetent, and at a lower charge for the services. That is the case, unless, as is implicit in our present scheme of things, no one can be qualified to handle small Court matters unless qualified to handle the more complex matters (as in the higher Courts). Do you have to be a brain surgeon, in order to be qualified to lance a boil?

Thus, we say that we have too few lawyers.

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