The Difference Between Filing Lawsuits and Selling Widgets: The Lost Understanding that Some Attorneys’ Exercise of State Power is Subject to Appropriate Regulation

[Excerpt] It is often argued that all attorneys practicing in the United States – regardless of the function they perform in the American justice system – are purely private actors working in a free market system. This article examines whether it is true that all attorneys in every instance should be equated, as a matter of public policy, with other private actors. This article explores why not all attorneys function in a free market, and consequently their remuneration should not always remain unregulated. Attorneys who file lawsuits can, by simply filing a complaint at their unfettered discretion, immediately subject defendants to the threat of a default judgment and necessitate their spending money and resources toward their defense. That dynamic results in a situation in which a defendant will be made to pay any amount to the plaintiff in settlement, provided the settlement demanded is less than the defendant’s costs of defense and the plaintiff’s attorneys’ costs for filing the case are minimal (as they universally are). This article proceeds to discuss a short history of attorney regulation – from Roman times to the present, a story beginning with severe limits on attorneys’ influence and ending in a regime of rules that encourage the filing of lawsuits and do little to restrain them – and an examination of how that breakdown of attorney regulation occurred over time. This article concludes with a discussion of Supreme Court precedents indicating that private attorneys who file lawsuits should be considered state actors in most circumstances in which they trigger the authority of the state and, through the state, the threat of a default judgment and the consequent necessary expenditure of defense costs. This article concludes that attorneys who file lawsuits are qualitatively different than other private actors who seek to sell products to willing buyers in a free market system, and hence private attorneys who file lawsuits are more appropriately subject to regulation