Dumb Unethical New Attorneys is a Symptom, Not the Disease

As you've probably heard, there is an ongoing crisis not only with the wave of foreclosures, but how the foreclosures have been processed and handled in some areas, with rampant reports of fraud, incomplete documents, etc. You'll never guess what trait various investigative parties have noted about the attorneys who handled foreclosures in Florida:

Today, more than 260 attorneys work at four of Florida's largest foreclosure firms, and 48 percent of them have been practicing law for less than three years, according to Florida Bar records obtained by The Palm Beach Post.
...
With this fall's allegations of forged foreclosure documents, fraudulent notarizations and questionable affidavits submitted in tens of thousands of foreclosure cases, those nascent lawyers are now under a cloud of suspicion.

Some may face Florida Bar investigations that could end their careers, while homeowner advocates wonder whether the foreclosure crisis would have reached its state of disorder if it weren't for legions of novice lawyers doing the legwork.

Maybe I'm a bit naive, but something tells me that if you don't know using a forged affidavit or notarization is a bad thing on day one, you're probably not cut out to be an attorney. That said, it seems obvious that the Post was looking for a headline-grabbing scapegoat here and found one in youth rather than the system itself.

This becomes readily apparent if you read the whole article, which few did when newspapers were real and even fewer do online. Some select quotes:

• Lack of experience could have led young lawyers to follow their employer's lead, unaware they may be committing an offense....
• Florida Bar President Mayanne Downs said the Tallahassee-based group has no power to open its own inquiries....
• [A former young attorney involved in foreclosures] said Stern's practice was driven by paralegals, who prepared most of the paperwork. "If there was shady stuff being done, it was being done without our knowledge," he said....
• Even so, Downs said Bar leaders are generally concerned with the education of Florida's young attorneys. With 11 law schools in the state, she said there is a question about whether there are too many programs producing lower-caliber lawyers....
• Downs suspects most cases the Bar investigates will result in blame being placed on a number of factors, including overwhelmed lenders, overworked firms and lack of oversight.

I wonder if Mayanne Downs has learned not to talk to reporters. In so many words, she told the entire world that her organization has no power to independently investigate dishonest firms, that the investigations they currently have will likely be blamed on factors other than unethical attorneys, and that the state's legal education may be in such disrepair that unqualified attorneys are being admitted to the bar her association is supposed to oversee.

That's the real problem here, isn't it? Sure, desperate, dumb young attorneys are a part of the mess, but that's not the headline here. The fact that there is a large mass of young attorneys desperate to do any kind of attorney work is a product of there being too many law graduates. Foreclosure mills and other legally-dubious enterprises can exist in such an atmosphere because the young attorneys - no matter how ethical they may be themselves - have little incentive to ask questions or look into what they're signing. One who takes the time to fulfill ethical obligations in any sort of idealistic sense is back to the unemployment line rather quickly. In a sense, it's the basic model of pre-unionized factories and 3rd-world sweatshops.

You could throw the book at the inexperienced attorneys who signed these fraudulent things, but in the end that's really only addressing a symptom. As long as there's a dirt cheap supply of competitive labor, you're playing right into the hands of shysters and exploiters because you've set up a system where an imbalance of power means the firm owners have a sort-of ethical monopoly. If the firm wants to discard legal ethics in the name of profit and take the risk, what prompts the young associate to say "no," if there's little other chance of a job and a 100k in student debt to pay off? If they say "no," eventually someone will say yes. If they report it to the authorities, there may be an investigation that results in the firm losing business, leaving the associate out of work.

Ultimately, bar associations are supposed to be the guardians against this type of situation by controlling the access of who gets to be an attorney in the first place. The fact that this situation happened isn't primarily the fault of young attorneys or even poor education, it's the fault of a system of bar associations (state and national) that has proven to be utterly ineffective at regulating the attorney profession, which has led to a drastic oversupply of attorneys and all associated problems. This is merely one of them; it is not the first apparent problem and it will not be the last.