The Relevant Lawyer – A Look Back in Time

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The Relevant Lawyer – A Look Back in Time

Have We Moved Forward?

Stephen P. Gallagher www.leadershipcoach.us

The Relevant Lawyer was published in September 2015, so this would be a good time to look back to see what has or has not changed. This book had a wealth of recommendations for lawyers to stay relevant, but the challenge is always convincing people to change.

I tried to keep a track of the pages in the book, if you would like to go back and review these quotes in context.

Stephen P. Gallagher – [email protected]

The Relevant Lawyer: Reimagining the Future of the Legal Profession, Editor Paul a Haskins Editor – ABA Standing Committee on Professionalism Center for Professional Responsibility

 

The Relevant Lawyer is a collection of independent voices connected by an abiding concern about the future path of the great profession. The 20 chapters are presented in five clusters, under the section headings Transformation, Equity, Regulation, and Development.

“On the issue of lawyer regulation, the globalization of the economy, with technological breakthroughs making geographic borders and physical distances less and less meaningful, raises profound questions about how and by whom the practice of law is regulated.”

William C. Hubbard, president of the American Bar Association.

(The Relevant Lawyer, p.xix)

Chapter 1, Saving Atticus Finch: the Lawyer and the Legal Services Revolution    by  Frederic S Ury

The time is now for leaders in the legal profession to join the dialogue on – and thus be able to influence – how legal services will be delivered over the next 5 to 10 years, and what roles lawyers, judges, and the courts will play in the delivery of those legal services. All signs point to a need for bold action by the bar and its members to stake a claim in the new global economy of fading Borders where technology equals power.          P. 5

The legal profession’s unwillingness to engage in a discussion about difficult and controversial subjects, such as non-lawyer ownership, the inability of much of the population to afford legal representation, and the rapidly changing landscape, has resulted in other legal service providers filling the void.        P. 6

It is no secret that we haven’t oversupply of lawyers at a time when 85% of people with legal problems in this country either do not realize that they need a lawyer or cannot afford one. To help identify solutions to society’s growing justice gap, it may be useful first to consider the drivers of deep change in the law practice environment.        P. 6.

While many in the professions conservative by nature may elect to ignore such long-established models of legal practice controlled by nonlawyers, it is harder to ignore the invasion of web-based legal service providers, such as LegalZoom and Rocket Lawyer, intent on and equipped to take business from lawyers.                                P. 6.

The Internet revolution in legal service providers is not limited to the commoditized part of the practice. Fairoutcomes.com, completecase.com, squaretrade.com, cybersettle.com, virtualcourthouse.com, and many other dispute resolution websites are all owned by nonlawyers.                                                          P. 8

Frederic S Ury, former Pres. of the National Conference of Bar Presidents, a member of the ABA Commission on Legal Ethics 20/20, and current chair of the ABA Standing Committee on Professionalism offers a proposal to start a discussion in all corners of the legal community regarding how best to adapt to disruptive change.

  1. Change in the regulatory system from one that regulates individual lawyers to one that regulates entities. This change will allow the profession to enlarge the 10 to include multidiscipline practices, Internet providers, and other innovative entities that will provide legal services on platforms we can only imagine.
  2. Permit multidisciplinary practice so that accountants, financial planners, counselors, and attorneys may form new combined entities to allow one-stop shopping for consumers. In this scenario, all employees and shareholders would have to live up to the highest standards of the Rules of Professional Conduct, because all legal service provider entities will continue to be regulated.
  3. Allow nonlawyer ownership of firms in stages over a five-year period. This will allow those bright new young, tech-savvy attorneys to formulate new forms of law firms that, for example, will have computer programmers and social networking experts as owners.
  4. License and regulate paralegals/legal technicians so that they can offer commoditized work to consumers at a reasonable cost, independent of attorneys.
  5. Offer a two-year master’s degree in law that is not a jurist doctorate, but in between a paralegal degree and a juris doctor. Such a credential will enable someone who is interested in a specific area of the law to learn, practice, and concentrate in just that area.
  6. Modify the ABA/AAL S accreditation requirements for law schools so that they can experiment with different programs and differentiate themselves. “One-size-fits-all” cannot be the model that law schools must operate under in this new century.                                                               P. 10-11.

Fred states that, “We as lawyers – as the profession of law – now have the opportunity of a lifetime to shape the emerging legal services delivery landscape in a way that better serves a vast, unmet public need for access to justice, while preserving lawyers’ essential place in the justice system. Only by seizing that opportunity can we hope to remain an independent, relevant, and self-regulated profession in the 21st century.”

Chapter 2, The Legal Industry of Tomorrow Arrived Yesterday: How Lawyers Must Respond – Stephen Gillers is Elihu Root Professor of Law at New York University School of Law

The traditional model for regulating lawyers – the “geocentric” model – cannot survive. In fact, it has been stating for years. Bar groups should lead in addressing the changes we face. We must bring our rules into responsible conformity with market events in a manner that protects the public interest and our core values and begins to fulfill the promise of affordable legal advice.                                                                                            P. 14

Once we do away with the quaint notion of a physical office from which a lawyer does all of her work, we might ask whether we can also do away with the law firm as such – that is, the traditional law partnerships were professional corporation. Actually, we already have: Axiom and other companies claim to have reinvented the law firm.

Having eliminated the law office and the law firm, why not eliminate the lawyer, too? Or at least render her invisible. This is not fiction. Companies like LegalZoom and Rocket Lawyer are offering increasingly complex products.                                                                                                                                                  P. 19

Lawyers Will Not Be the Only Victims of Intransigence. The public, too, will be harmed. The bar should, for example the at the forefront of developing rules permitting limited practiced by legal technicians, rules that balance the needs of those now priced out of the legal marketplace with the goal of competence. The emergence of this group of service providers is still new. Its proper development will benefit from the bar’s attention.       P. 22

Chapter 3, Alternative Legal Service Providers: Filling the Justice Gap – Poland Littlewood and Stephen Crossland

More than a dozen years ago, the Washington Supreme Court acted upon a simple but profoundly important observation: lawyers were not filling a vast public need for legal services, nor was the legal service marketplace organized in a way that could meet all of that need. The state’s highest court reasons are that it’s higher obligation was to the interest of justice, not the interest of lawyers. The court persevered through bar opposition in a rule-making process that today has resulted in the nation’s first statewide program licensing a new category of legal service providers narrowly tailored to make an impact on that unmet need.

Washington’s limited license legal technician (LLLT) is the nation’s first in what may well turn out to be the series of new limited license professionals who will help serve clients and alleviate the growing Justice gap, i.e., lack of access to legal services on the part of the consuming public.         P. 26

Relevancy requires constant reinvention

There are at least three late markets that are severely underserved by the legal profession today: (1) low-and moderate-income clients who go without representation they need in civil matters approximately 80% of the time (importantly, moderate-income families are not the working poor; they are a family of four making $94,000); (2) middle-income clients, 50% of whom are estimated to go without the representation they need; and (3) those people who did not ever realize they have a legal problem and sought assistance through nonlegal agencies or resources.                                                                                         P. 26

Not Everyone Needs a Lawyer

A threshold challenge for many lawyers, if we are to find our place and have a say over an integrated legal service marketplace, is “letting go” of the idea that only lawyers can competently provide any legal services to clients. The first step in letting go is accepting the reality that not all consumers need lawyers to help them deal with their “legal” problems.                                                           P. 27

(Paula Littlewood and Stephen Crossland)

“We have a duty to ensure that the public can access affordable legal and law-related services, and that they are not left to fall prey to the perils of the unregulated marketplace.”

Chief Justice Madsen, Washington Supreme Court, June 2012 the court Adopted Admission and Practice Rule 28 (APR 28 close parens by a vote of 6-3.        P. 30

As required by GR 25 (General Rule), the rule establishes certification requirements (age, experience, pro bono services, examination, etc.) and defined the specific types of activities that a limited license legal technician would be authorized to engage in, the circumstances under which the limited license legal technician would be allowed to engage in authorized activities (office location, personal service required, contract for services with appropriate disclosures, prohibition on serving individuals who require services beyond the scope of authority of the limited license legal technician to perform), a detailed list of prohibitions, and continuing certification of financial responsibility required.                    P. 31

Unexpectedly, a remarkable collaboration ensued within and between the community college system and among the three Washington state law schools. As the LLLP Board worked his way through the process of implementing the rule, three guiding principles emerged that help direct development of the program – the “3 As”: “accessibility,” “affordability,” and Academically Rigorous.” P 31

The next step of the Limited License Legal Technician Board (LLLP Board) was to develop rules of professional conduct for LLLTs, keeping in mind that the overarching mission of the program is to “serve and protect the public.” Under those newly minted rules, LLLTs are held to the same standard of care, and rules of ethics and discipline, is fully licensed attorneys. In addition to the educational requirements, LLLTs must also complete a 3,000-hour practicum under the supervision of an attorney licensed in Washington.                                                    P. 33.

The Age of Consumer Self-Navigation by Jordan Furlong

“Self-navigation” is a novel term – similar to the more familiar “self-representation,” but not nearly as narrow in its scope. Self-representation characterizes a person’s direct, individual participation in the court system when acting as her own advocate the wealth litigation process. It rarely delivers good results to anyone involved, including judges, court staff, lawyers, opposing parties, and, most especially the self-represented.

For many, “self-representation” implies the lack of desired access to a lawyer. “Self-navigation,” 20 other hand, reflects the reality that many legal consumers are now content to proceed at least some distance through the legal system without the full-time assistance of counsel, and it applies to representation beyond litigation                                                P. 38

LegalZoom – Sells interactively created legal documents. They have already served 2 million people and it sold equity worth $200 million early in 2014.

WeVoice – This is an online family law service that has raised $1.7 million to help spouses make their own way through the divorce process with minimal lawyer involvement.

Shake – This is a Do-It-Yourself tablet-based contract app. It has helped execute more than $1 million in small-business contracts through September 2013. Modria and other online dispute resolution systems allow would-be litigants to take the conflict settlement process out of courts’ hands and into their own.                                                    P. 39

LawGives is a startup founded by Stanford law graduates that offers unbundled legal services over the Internet as standardize, set-priced products.

Bar associations are developing legal health checklists and regiments to help people and businesses minimize or avoid law-related risks that could become legal problems.                                                         P. 40

The legal services gap has been identified in a growing number of studies as one in which only about 15-20 percent of potential legal service opportunities are met by lawyers, with the other 80-85 percent going either unmet or unrecognized altogether. It is this late 80-85 percent of the total market that new providers seek to tap.

Many lawyers do not yet realize that in several areas of the law, self-navigation has already become normalized. When 60 – 80 percent of family law litigants show up in court to conduct their own legal business, as an ABA study recently concluded, the normalization tipping point in that sector has already been passed. The “default setting” in Family Court has already switched from “hire a lawyer” to “show up in person.”

As more and nontraditional users and of the legal system, it seems inevitable that the system will become less formal, stringent, ritualistic, and doctrinaire. “Good enough,” currently the mantra for alternative providers of low-cost legal services will be adopted more frequently by the curators of courts, contracts, and commercial transactions. One could call it a lowering of standards, and that would not be wrong. But more accurately, one could also call it an adjustment of lawyerly expectations to everyday reality.                                                                                                  P. 43

If the client sees a new world of multiple color shades but the lawyers still views everything in black and white, an opportunity will have been missed

If lawyers declined to help their clients become more self-sufficient, others will do so. Today’s fledgling self-navigation ecosystem foreshadows the emergence of a multimillion-dollar legal technology and paraprofessional industry that will equip people and corporations with the know-how necessary for self-navigation.

Lawyers need to gather colleagues and clients together and asked “What would self-navigation assistance actually look like in our practice areas? What type of products and services would provide value to people and businesses that want to assert more control and management over the legal affairs? Which of these products and services would replace work we currently do, which could create secondary markets of service, and which might generate whole new lines of offerings? How would these offerings be priced?”     (Jordan Furlong)              P. 46

Self-navigation is going to change in law practice, the legal system, and above all, the clients own understanding of what her role really is, and what her new responsibilities as opportunities can and will be. It will be destabilizing and empowering, thrilling and devastating, confusing and clarify in equal measure.                                                P. 49

Law schools and legal workplaces are in the process of changing how they used to work in order to be effective in this new reality, and the more prepared each lawyer is to productively contribute to this change, the more sustainably successful that lawyer and our profession will be.    P. 73

John Maxwell stated, “change is inevitable. Growth is optional.” While the changes to the “who” of the legal profession are well underway, the growth and sustainability of our profession depend on “how” we respond to these differences and our capacity to move past the status quo and leverage differences to become stronger and smarter. Arin N. Reeves    p. 73

For Current and Future Lawyers

We all have comfort zones where we connect themselves with people who are similar to us in some way. Actively break out of these comfort zones by expanding your personal and professional networks in creative ways.

The Future of Virtual Law Practice – Richard S. Granat and Stephanie Kimbro

Virtual law firm technology holds the promise of a significant if not comprehensive solution to the persistent access to justice problem burdening low-income people and those of modest means. It is estimated that approximately 6 percent of solos and small law firms use a secure client portal to communicate and collaborate with their clients and deliver other legal services online. “Virtual law practice” is still in its early stages of adoption by the legal profession.

The literature about “virtual law practice” often quotes lawyers is referencing themselves as open quote virtual lawyers” because they have no physical office; they meet clients at their client’s office or at the local Starbucks and do their legal work by email, cell phone, and laptop computer. But since these lawyers do not deliver online legal service securely, one would not consider them true “virtual lawyers.”

William Paul, former president of the American Bar Association January 2000                                                                                           p. 87

During the early stages of the emergence of virtual law practice, law firms incorporated into existing websites a “quote client portal” that was accessible with the username and password within which different legal tests are done. More recently, a hybrid for virtual law practice has emerged where a third-party provides a website that connects clients with law firms. The third-party creates a website that is market-facing and attracts consumers who can become clients of the law firms linked to that company’s website. The consumer-facing website often targets specific legal needs, such as estate planning, start-up companies, or divorce law, and, with advertising resources an excellent contact, can attract consumers who can be served Bible lawyers for its network. These networks are called “branded networks” and offer individual law firms and efficient way to market its services through the company’s website. Examples include AttorneyFee.com, DirectLaw Connect, LawGives, LawZam, and BridgeUSA.              P. 88.

Direct to Consumer Solution

During the last decade, a new category of nonlawyer, legal information websites offering direct-to-consumer, low-cost legal solutions has emerged. The impact of these legal information websites on that segment of the legal profession, walnuts huge as yet, is not insignificant either. In one area alone, no-fault divorce, we estimate that online divorce sites, such as www.completecase.comwww.LegalZoom.com, www.selfdivorce.com and a number of others have processed over 100,000 online divorces in 2014.

Why Do Consumers Look for Alternatives to Lawyers?

Only 15 percent of those with a civil justice situation turn to an advisor for help, and only 8% turn to a lawyer. One out of 11 people with a legal issue took that issue to a lawyer. Forty-five percent of the people said there was no need for advice. Twenty-five percent said that seeking help would make no difference.

Rather than seek legal assistance, many consumers will search for a solution that is “good enough.” Consumers will sub-optimize and seek the assistance of an independent legal document preparer rather than the full services of an attorney in the interest of economy, even though it may be far from the perfect solution. (Richard S Granat and Stephanie Kimbro)                                                                                                             P. 90

From consumers’ perspective, the system for delivering legal services must be redesigned to conform to their values by creating a new value proposition. A new value proposition could involve elimination of the need to go to the lawyer’s office, increasing speed of the transaction, and offering services at a flat fee. Lawyers can no longer sell a product or service to a consumer if the consumer does not want to buy it.

Fixing the system for the delivery of common legal services requires more radical surgery if the migration of consumers towards less valued alternative is to be halted. Solutions include:

  1. Increasing the transparency of the transaction between client and lawyer by moving away from hourly pricing towards fixed pricing and/or pricing by results.
  2. Increasing productivity of the legal transaction and passing the savings on to the client.
  3. Overcoming the inconvenience of communicating and working with lawyers.

The legal service Corporation (LSC) recently released a report that resulted from a Legal Tech Summit convened in 2013 to explore the many ways technology can expand access to justice. The main components of the LSC strategy are similar to what can be envisioned for private law firms as these firms migrate towards the Internet:

  1. Creating in each state a unified legal portal that directs persons to the most appropriate form of legal assistance and guides for self-represented litigants through the entire legal process.
  2. Deploying sophisticated document assembly applications to support the creation of legal documents by service providers and by litigants themselves.
  3. Taking advantage of mobile technologies to reach more persons more effectively.
  4. Applying business process/analysis to all access-to-justice activities to make them as efficient as practicable. Developing expert systems to assist lawyers and other service providers to assess authoritative knowledge through computer and apply it to a particular factual situation.                                                                    P. 97

The predictions of legal futurists such as Richard Susskind are finally being taken seriously by American law firms. Established firms, however, are only slowly adapting to the new legal marketplace, especially those with traditional partnership models and hierarchical business structures. In that respect, judicial firms are comparable to traditional industries and companies that have struggled to adapt to changes in their marketplace.

This difficulty might best be explained by a phenomenon called “innovator’s dilemma,” described by Harvard business school professor Clayton Christiansen in his book, The Innovators Dilemma: When New Technologies Cause Great Firms to Fail (Boston: Harvard Business School Press 1997). Christiansen’s book explains why disruptive technology is less common than sustaining technology and how innovation in business models come from outside of a company rather than from within it.

The future belongs to law firms that learn how to use Internet technology to offer legal services to clients in the way those clients expect Lee legal services to be delivered. Based on our understanding of the level of engagement needed for online delivery, law firm engagement in virtual law practice must also learn about user-centered design.

Lawyers designing new forms of legal service delivery mail also consider methods such as gamification to increase online engagement with clients. Gamification is the use of game mechanics in non-game applications. Gamification occurs when you take the process, such as filling out an online client intake form, or all the steps needed to handle a case as a pro se litigant, and add the game elements to that process to motivate the people involved to complete the task in a different way.                       P. 100

Software-powered legal services delivered over the Internet will provide a pathway for the legal profession to reinvent itself, retain its identity as a learned profession that serve society, and provide a decent living for its members.

The Proliferation of New Entrants

The UK Legal Service Act of 2007 allows nonlawyers to participate in the management and control of law firms, and it introduces options for Alternative Business Structure (ABS) that allows nonlawyers to invest in law firms.

Characteristics of Leading Firms of Future

Due to clients’ concerns about cost, the most urgent focus for many firms is to become more efficient. A second set of objectives – to develop a more client-focused and differentiated value proposition – demands attention in the short to medium term. And firms that become more socially engaged can help foster prosperity what developing new competitive advantage for the long-term.                                                                              p. 108

Indie Lawyering

There is a powerful case to be made that the future of law does have a place for solo and small-firm lawyers dedicated to serving individual clients. Many of those lawyers may opt for indie lawyering, a new style of lawyering that uses technology to connect the individual practitioner with individual clients in order to collaboratively solve legal problems in a community-centered way.

“Indie,” a shortened form of the word “independent, close quote was first used to refer to music and movies produced on small-scale, without reliance on mass-media film and music companies. The term indie contemplates an autonomous spirit, do-it-yourself ethic, and freedom from large-scale institutions. Shaped by the convergence of new technology, culture, and professional ideals, Indie lawyering is an alternative framework for the individual practice of law.

Indie Lawyering, Chapter 9, The Relevant Lawyer ABA Standing Committee on Professionalism by Lucille A. Jewel                                                                                 p. 113

 

Many consumers are looking for individualized alternatives to cookie-cutter products and services, products that are more community centered, sustainable, and supportive of local communities. Social enterprise, the sharing economy, do-it-yourself (DIY) culture, growing consumer demand for artisan and craft products, and long-tail markets, taken together, represent a cultural convergence with the capacity to support a new framework for the individual practice of law. These five trends emphasized community, sharing, autonomy, independence, and an individualized approach to production – all concepts that can be applied to legal services. When these cultural trends are combined with lawyering, the result can be a style of law practice that is refreshingly individualized and independent.                                                                                                                                                 P. 114

Beyond current regulatory barriers, the high cost of law school prevents many graduates from embarking on an innovative solo practice. If the Indie lawyer model is only available to law graduates with pre-existing wealth, then this new style of law practice would likely remain a small niche product, with legal services being provided by the privileged for the privileged.

One solution to the problem would be to provide generous loan repayments to attorneys willing to locate their practice in underserved areas both rural and urban.                                                                             P. 115

  1. Social Enterprise

Social enterprise refers to the dual-purpose businesses that endeavor to make money but also give back to the community. The social enterprise model has successfully captured consumers’ concern over the impact their buying choices have on the greater community and the environment. Well-known social enterprise companies include Tom’s Shoes, which donates a pair of shoes for every parent that is purchased, and Warby Parker, which does the same for eyeglasses. The popular trend of buying local products from community businesses is closely tied to the social enterprise model.

2.The Sharing Economy

Most references to the sharing economy refer to new forms of commerce supported by Internet technology, which allows users to monetize surplus property under their control. Airbnd, the online apartment-sharing service, and Uber, the mobile phone-powered carpooling service, are two of the most well-known sharing economy businesses.

The “In a broader sense,” the sharing economy also encompasses arrangements that allow people to jointly use property and collectively participate in business endeavors.

3. Do-it-yourself/DIY

Similar to the values that underpin the sharing economy, the do-it-yourself trend emphasizes autonomy and self-reliance. This movement involves people making goods and technology products in their homes and garages. The Internet enables DIY practitioners to form communities with each other and share information and advice for projects.

4. Demand for Bespoke Products

Consumer demand for individualized, bespoke products is the fourth trend that connects with the Indie lawyer model. Perhaps in response to years and years of cookie-cutter mass production, consumers now demand unique and exclusive “one-of-a-kind” products. The new production technologies coupled with Internet retail interfaces allow customers to customize a host of retail products.

5. Long-Tail Markets

The long-tail market phenomenon was introduced by Chris Anderson, editor-in-chief of Wired Magazine. This is the last interlocking piece of the foundation for indie lawyering. Long-Tail markets are niche markets made possible by the Internet. The theory of the Long Tail is that our culture and economy is increasingly shifting away from a focus on a relatively small number of “hits” (mainstream products and markets) at the head of the demand curve and toward a huge number of niches in the tail. As the costs of production and distribution fall, especially online, there is now less need to lump products and consumers into one-size-fits-all containers. Traditional retail economics dictate that stores only stock the likely hits, because shelf space is expensive. But online retailers (from Amazon to iTunes) can stock virtually everything, and the number of available niche products outnumber the hits by several orders of magnitude.

6. The Indie Lawyers Practice

  1. Indie culture supports the emergence of a potential market for new legal products and a different style of law practice that uses technology to deliver customize, client centered legal services on a larger scale.
  2. And Indie approach to lawyering invites a reframing of the solo practice of law. This reboot emphasizes individual autonomy in a liberating way and enshrines the community service values that should form the core of lawyer’s professional identity. 118

In a response to a severe shortage of lawyers in rural South Dakota, the state started a program that pays young lawyers to relocate to counties with fewer than 10,000 residents. In addition to state-level funding, one South Dakota County offered to pay office and business expenses to lure lawyers.

Jake Fisher was one of the first participants in South Dakota’s rural attorney grant program. He said he chose a rural practice because of “the chance for greater, and more personal, community involvement.” Young lawyers like Jake are embarking on a wall practice with the aim of serving their communities and with the goal of creating a sustainable, do-it-yourself lifestyle. This is the ethos of the indie lawyer.

Indie lawyers can move beyond faceless forms and use technology to strengthen community bonds and provide individualized legal services. Online communities enjoy the same sense of belonging and human connection as traditional communities centered in a geographical place. The Indie model’s individualized approach differs markedly from other technological legal services, such as LegalZoom and Rocket Lawyer.     P. 121.

By bringing novel legal services to a potentially new class of clients, the Indie lawyer can help bridge that access between lawyers and middle- and low-income clients.

Creative Disruption

Professor Ray Campbell was one of the first legal academics to write about the application of the theory of “creative disruption” to legal services. Among other things, this theory posits that “disruptive” new entrants are likely to come into a market when consumers are underserved (because they cannot afford the existing services or products) or underserved (because they are paying for more product or services then they want or need).

The January 2014 report of the ABA Task Force on the Profession of Legal Services called for dramatic regulatory changes. To expand access to justice, state supreme courts, state bar associations, admitting authorities, and other regulators should devise and consider for adoption new or improved frameworks for licensing or otherwise authorizing providers of legal and related services.                                                                                   P. 164

About the Author:

I am a frequent speaker at bar association meetings on topics related to transition/succession planning, leadership skills training, and professional development.

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