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Familiar Complaints: The State of the Legal Profession in Israel

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There are too many lawyers. Too many law schools. The bar exam is too easy. The Law Society should fail more applicants. Such statements are familiar in Canada but they are also heard in Israel where I am spending part of the year as a Visiting Scholar at the David Weiner Centre for Lawyers’ Ethics and Professional Responsibility and as a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem.

When I was much younger, I worked for a year in the Israeli court system as a law clerk so I know something about the Israeli legal system, but I soon realized how dated my knowledge was.

Israel has four law faculties associated with long-established universities at Jerusalem, Tel-Aviv, Haifa and Bar Ilan Universities. The newest – Haifa – was established in 1992 and thus only recently celebrated its 20th anniversary.

However, in those two decades there has been an explosion in higher education in Israel which has deeply affected legal education and the practice of law. This was the establishment and the proliferation of colleges which focus on social sciences and professional education like law, business, administration, etc.

As a result, Israel experienced a huge boom in new lawyers over the last two decades. Israel now reportedly has the highest per-capita rate of lawyers in the world. With a population just over 8 million, Israel has 55,000 active lawyers and several thousand more on the way once they complete their “stag’” (articling). In comparison, Ontario has a much larger population – more than 70% larger – with 13.7 million people and almost 20% fewer lawyers (46,000 lawyers). Surprisingly, the Israel Bar Association does not publish statistics about those who they regulate.

By my rudimentary calculations (“Damnit, Jim, I’m a lawyer not a mathematician!”), Ontario would need 97,000 (!) lawyers to match Israel’s rate. Applied across Canada, this would give us 240,000 lawyers, more than twice the most recent number of 115,000 lawyers nationwide reported by the Federation of Law Societies of Canada. And people say we have too many lawyers in Canada!

In Israel, some people are trying to stop this trend. Earlier this fall, the Israeli Minister of Justice announced a package of reforms that included making the bar exam more difficult. Apparently the Israel Bar Association heard the message. In November, it was reported that more than a third of all those who wrote the latest bar exam failed. A record 36.6% of all bar exam writers failed, the most since the results were computerized in 2000. Those are numbers that have never been seen in Canada in my lifetime. They are downright American. According to the head of the Israel Bar Association, the results are attributable to a change in the exam format and an intent to make the exam harder. It apparently worked.

Another frequent complaint against the Israel Bar Association is that it places the interest of lawyers over protecting the public. Like the old Law Society of England and Wales, the Israel Bar Association is both the regulator and the representative body for Israel’s lawyers. The Clementi Report recognized the inherent conflict of interest in such a role and the U.K. Legal Services Act stripped the Law Society of England and Wales of its regulatory functions. Research presented by Dr. Michal Ofer Tsfoni in July 2014 at the International Legal Ethics Conference in London revealed an incredibly high level of deference by courts to decisions of the bar in discipline.

Pressure to reform the regulation of the practice of law in Israel is likely to continue. At the end of November, the Minister of Justice introduced a bill which would create greater transparency and improve governance of the Israel Bar Association. The bill includes a number of interesting features, including allowing the Minister of Justice to appoint an inspector to oversee the stag’ process. The Minister will also now appoint all the members of Bar Exam Committee. Apparently, the budget of the Israel Bar Association was somewhat of a mystery because the new legislation would require that it be posted online.

The watchwords for the reforms are “transparency, governance, and professionalism”. Sound familiar?

Comments

  1. Bradley Wright
    December 12th, 2014 at 12:08 pm

    Hi Adam,
    First, what the Clementi report (written by an accountant who never practiced law) should have recommended is the creation of the British equivalent of the Canadian Bar Association and move the advocacy role to it, and required that the Law Society regulate in the public interest as ours does. Instead, the government opted, as was entirely predictable, for the heavy-on-the-bureaucracy, eat-at-the independence-of-the-legal-profession route.

    Second, one of the worst things that can befall a state is having too few lawyers per capita. Right behind it is having too many lawyers per capita. China has one lawyer for every 50,000 citizens. There may be reasons why Israel needs so many lawyers per capita, but I doubt it. The real issue is whether the public is being better served by any huge increase in the number of lawyers per capita. In China, the public would be, but in the West, we have a different problem. If a very high number of lawyers per capita resulted in better and cheaper delivery of legal services, the US would have the lowest cost legal services on Earth. Instead, they have the highest. There is an optimum number of lawyers per capita, a point at which there is the best balance between cost and delivery of excellence. The Americans certainly have not figured out that balance to their great, great cost, and we in Canada do not even think about it. Instead, we blindly blunder on copying the worst aspects of legal systems elsewhere, whether as to increasing the number of our law school graduates to a rate five times greater than population growth (someday, every citizen will have their own private lawyer, and have to pay for her entire annual income), or whether as to the Blunder of the Century, i.e., the selling out of the legal profession to the cartelizing forces of Big Business (the clients of the big law firms), i.e., ABS (with the accent on the BS).

    Did you know that some benchers who are identified with the Left actually support ABS? They actually want small independent firms to be swallowed up by gigantic corporate, non-lawyer entities in the naïve, though easily disproven, belief that the public will benefit even thought with ABS there would be far more overhead to cover. I wonder if this will be yet another example of the rapacious Right duping the naïve Left into supporting something that is, in hard reality as opposed to pleasant theory, designed to benefit the few at the expense of the many. The mind boggles.

    We have evolved a society that thinks it is smart to drastically ration doctors and nurses and skilled tradespeople while spewing out lawyers like there is no tomorrow. If we had sat down and deliberately tried to screw things up, we could not have done a worse job (or should that be ‘a better job of screwing things up’?).

    I hope you have a great time in Israel.
    Brad

  2. Omar Ha-Redeye
    December 13th, 2014 at 8:18 am

    The question of “too many” or “too few” lawyers largely depends on the civil context where the discussion occurs. I know this conversation was already happening in Israel during my legal studies there at Bar Ilan.

    The ideal number of lawyers will largely depend on the function of these lawyers within the respective legal system, whether they are the primary mechanism for dispute resolution, or play a central role in business transactions. The economics of a country, and the type and nature of their civil disputes, will drive much of the demand for legal work. The number of lawyers can therefore also be obscured by the number of non-lawyers playing a similar type of role as lawyers in a society.

    J. Mark Ramseyer & Eric B. Rasmusen compared the respective litigation rates across various countries and noted,

    The U.S. has about a quarter more suits per capita than does the U.K., but 3.3 times as many as Canada. It has fewer judges per capita than France, but nearly four times as many as the U.K. It has 17 times as many lawyers per capita as Japan, but the same number as Australia. It has more than twice the motor vehicle insurance costs of Australia, but lower costs than Canada.

    However, they concluded that aside from a few high-end anomalies, litigation in the U.S. was not particularly different than other countries.

    F.H. Buckley almost presumes an ideal number of lawyers in the title of his book, A better country (with fewer lawyers),

    One of my book’s most interesting chapters, by Stephen Magee, reprises work he did 20 years ago on the optimum level of lawyers. There is such a thing as too few lawyers, where it’s hard to do business for lack of legal advice. But then there is also such a thing as too many lawyers, where everyone seems to have a law degree (a state we seem to approach in the Washington, D.C. area, where I live). The result is the upside down U-shaped curve, now called the Magee curve.

    After mapping lawyers per capita against measures of wealth for 27 countries, Magee puts the optimum number of lawyers — the apex of his curve — at significantly less than the American level of 3.65 lawyers per 1,000 people. We’d be worse off economically without any lawyers, he notes, but we’d be even better off if we had a third fewer lawyers (which happens to be where Canada’s level sits); and he reports that this excess works out to a cost of $1 trillion to the American economy…

    Magee has been faulted for assuming that the value of lawyers is to be measured only by their contribution to GDP, as if the benefits of the rule of law — including the protection of civil liberties — did not matter. However, the criticism rests on the false assumption that America’s level of lawyers results in a society where civil liberties are better protected than in other developed countries with a smaller numbers of lawyers. Somehow, other countries — Japan, England, Canada — manage to be civilized even if they lack America’s prodigious number of lawyers.

    The American legal academy, especially that part that stubbornly defends the country’s private law regime, is insular. It resists the world’s judgment and ignores the fact that it has become the global outlier. It is in part because Canadians have rejected the idiosyncratic and wasteful legal doctrines of its neighbour that Canada, in little-noticed ways, has become the fortunate country which it is.

    Israel is not a country without its own share of civil conflict. I’ve had many discussions with Israeli lawyers about international law and the rule of law in their context, even drawing on Canadian constitutional law to do so. I would love to see the next generation of Israeli lawyers help solve some of the most complicated legal issues in the modern political world.