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Solos, Take Back the Law

by Carolyn Elefant on January 6, 2012 · 12 comments

in Encouragement, Trends

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Each year, I try to identify an overarching theme that will impact solo and small firm practitioners.  And each year, I’ve been dead wrong – either because I’m way too far ahead of the trends, or because my predictions are contaminated by my own wishful thinking.

For example, in 2009, I predicted that in the aftermath of the Madoff scandals, foreclosure crisis and economic meltdown, clients would be loathe to trust professionals.  Thus, I advised lawyers to focus on building trusting relationships by using video and Skype to communicate with online clients face-to-face and by acting scrupulously in handling client trust accounts.  Sadly, however, we saw an acceleration of the kind of dishonest marketing conduct discussed by Mark Bennet in this post, point 9.

I called 2010, as the year of the DIY consumer, as evidenced by trends such as self-service customer kiosks for video rental, groceries and even prescription delivery.  I anticipated that lawyers would use technology to educate and empower clients to act play a more active role  in their cases. Instead, seems that many (but no all) lawyers would rather use portals to fill out forms and keep more profits.

In  2011, I offered up a bunch of themes, putting my money on the idea of “bespoke on a budget,” i.e., using technology to improve the quality of legal service that we deliver without raising the price.  Instead, we saw the rise of ex-lawyers or not-quite-lawyers using technology as gimmick to bring down the quality of legal service rather than as a way to expand meaningful  access to law.

With these three strikes, I’m out of the prediction business for solo and small firms this year.  Instead, I’ll try a declaration for 2012:

Let’s take back the law!!

Let me be clear – I am not suggesting that we lawyers invoke our guilded stature as professionals to guard our turf from poachers.  Nor do I suggest that we endlessly complicate our laws and make them inaccessible from the public just so that we can line our pockets.  No – instead, we need to take the law from:

  * The non-lawyer providers like  Legal Zoom  that charge consumers for nothing more than filling out forms that are available online for free; and

* The economists and academics who don’t think what we do is particularly special or valuable; and

*The consultants who believe that our precious clients, with their fears and secrets and aspirations are no different than shoe customers.

In short, we need to take back the law for those who see it as a business or a game or a value-add and give it back to our clients.  

Over the past few years, we’ve allowed the non-lawyer providers and de-regulationists to paint us lawyers out as the bad guys. For instance, Legal Zoom accuses lawyers of making the law inaccessible through high rates – yet Legal Zoom charges $99 to fill out forms that are otherwise available online at no charge for consumers to complete themselves.  De-regulationists contend that non-lawyer providers will do better work and charge less — yet they fail to acknowledge that non-lawyers offering foreclosure assistance or debt settlement took far worse advantage of more consumers than lawyers.

True, there are probably too many lawyers charge too much or treat clients badly.  But all but the very worst of in our profession at a minimum, adequately represent clients and protect their rights.   By contrast, non-lawyer providers deprive clients of their rights by offering incompetent advice that results in clients losing their homes or racking up a poor credit score or charging them for publicly available materials paid for by their tax dollars.  And worst of all, with their slick marketing and enormous advertising budgets, these non-lawyers have convinced millions of consumers that the law is nothing special and that lawyers don’t matter.

That’s why it’s high time that we lawyers particularly solo and small firm lawyers take back the law.  Why solos?  Well, partly, because many of the non-lawyer providers threaten the economic viability of some solos who are underbid and out-advertised by form-filling services with large coffers and freedom from ethical restrictions on advertising.  But more importantly, we solos are uniquely suited to take back the law because few others within or outside our profession comprehend the awesome power of law done right or the importance of preserving client dignity or  confidentiality or our tradition of pro bono (even if it’s sometimes involuntary!).

So what can we do to take back the law in 2012?

First, let’s make the law and ourselves more not less accessible to clients and the public.  That means if we choose to blog, we don’t ghostwrite  or slap the blog label on self-promotions and further, we link to underlying caselaw and statutes so that readers, if they choose, can review the original source and gain a better understanding of how the law works.

Second, let’s stop and take the time to explain to potential clients what they miss out on when they opt for a non-lawyer package.  Instead of assuming that anyone who doesn’t want to pay top dollar for a lawyer is a tire-kicker or cheap, we ought to consider that they may not recognize the added value of our services.  As lawyers, we protect client confidences, serve as trusted advisers (not robo-fillers) and if we mess up, clients aren’t limited to a refund but are made whole (or closer to whole) through our malpractice insurance.   Of course, at the same time,  let’s also be honest with clients about situations where the value we add isn’t worth the cost to the client – like cases that belong in small claims court or a disposition of a several thousand dollar estate by an heirless individual.  And if a lawyer isn’t required, let’s point those clients in the right direction – perhaps with an ebook that explains the process or reference to a credible website or non-profit or law school clinic.

Third – and admittedly controversial, let’s make forms and pleadings available for free to those clients who clearly don’t want to pay.  Sounds crazy, but both large and small firms alike make term sheet templates, LLC forms, FDCPA defense forms available at their website.  The firms have got nothing to lose – if a client doesn’t want to pay money to hire a lawyer, they’re better off with a legally- sound, basic template prepared by a lawyer rather than taking their chances with the kind of products that some of the other companies charge for.  And let’s face it — now that forms have been automated, it’s only a matter of time before they’re widely available for free.  At that point, we lawyers can still earn money off of our advice and judgment while the non-lawyer services can’t.

Fourth, can we please, please stop using technology to look cool or to automate a volume, assembly-line style practice that delivers a mediocre, commodity product?  Our clients deserve better.  Instead, let’s use technology to become better lawyers – to research faster and more accurately in less time, to stay abreast of new law and through social media (yes, it has a real role), interact with colleagues across the country who can share their knowledge with us.  Instead of using technology to bring ourselves down to the lowest common denominator, let’s harness it to do more with less so that we can achieve the level of excellence and bespoke expertise that every single client deserves irrespective of the size of their case.

Fifth, let’s share our knowledge freely with the next generation of lawyer so that we can continue to preserve the law for our clients.   Instead of taking advantage of unemployed, desperate law grads or charging them to help out on a case, why not share your knowledge freely and make an effort to send small cases or their way.

As lawyers, we surely don’t own the law. But nevertheless, we serve as its diligent guardians.  Earlier generations of lawyers erred in claiming the law as their exclusive domain and making it inaccessible and expensive, thus triggering the backlash we’re seeing today.  But at least, those lawyers protected it.

Today’s critics trivialize the practice of law as nothing more than a deliverable that can be accomplished through online forms and automated checklists.  And it’s views like that which deprive our clients and the public of meaningful access to, and the full potential of the law.

Because in reality, the law — particularly in the hands of a dedicated, skilled and dogged lawyer — the law is so much more than just a product.  It is a source of education and empowerment, of hope and opportunity, of dignity and relief and justice.  Achieving this standard is a lot harder than filling in the blanks.  But it’s the type of law that every client deserves and that we lawyers must strive to attain.  So let’s just man up and take back the law!

Note: Brian Tannebaum posted a few days ago on a  similar theme.

  • Andrew Mitton

    I don’t think you can take back the law the same way Kodak can’t take back film,  Border’s can’t take back book selling, Blockbuster can’t take back the DVD rental business, and the list goes on. I think lawyers need to face the fact that the online world is disrupting the traditional law firm model especially for solos and small law firms. This doesn’t mean the legal industry will be destroyed. But the disruption will certainly displace lawyers who hold onto the past. 
    Read Marc Andreessen’s article in the WSJ – Why Software is Eating the World (http://goo.gl/IcFQP).  

  • Vincent Beville

    Great post Carolyn!

  • Carolyn Elefant

    What you are discussing are products – film is obsolete, but we still enjoy digital photos.  Books and DVDs are procured on line rather than in stores, but people still read and watch movies. We use ipods rather than phonographs, but we still listen to music.
    I don’t think even the most curmudgeonly lawyers haven’t changed the way they deliver services with each new advancement. Virtually every lawyer uses a computer (if not a cloud-based program) to produce pleadings, communicates with clients by email and carries a smartphone rather than a paper calendar.  I’m certainly not suggesting that we return to the days where every lawyer had a secretary and researched in the library instead of using comperized services.
    As you point out, technology changes the method of delivering services and activities that we enjoy.  But technology does not change the nature of those services – humans do that.  For example, technology has made it much easier for people to self-publish books.Some people have talent but others just throw out any kind of garbage because they can. Is technology ruining the book industry?  No – there’s nothing to stop people from being honest about their abilities and hiring a copy editor or seeking peer review. 
    It’s the same with the law. Technology doesn’t force lawyers to agree to participate in auctions where clients may disclose confidences in placing a bid or to agree to handle thousands of cases ineffectively.  Lawyers make that decision.  Moreover,  technology doesn’t force the public to agree to participate in these auction schemes – it’s humans and marketers who convince the public that confidentiality, dignity and all of the other human elements that lawyers bring to the table aren’t valuable. 
    Having said that, I’ll grant you that solo and small firm lawyers who are looking at ways to deliver unbundled lower cost services online will do OK for the next couple of years.  That is, until companies like LegalZoom start taking their gazillions of capital and bringing lawyers on staff or as contractors to review documents.  No way that solo and small firm lawyers with a mom and pop online portal will be able to compete with those economies of scale. 

  • http://twitter.com/FollowtheLawyer Jay Pinkert

    Isn’t the ABA leadership responsible in part for the PR problems that cause the general public to lose respect for the profession? When Bill Robinson declares that he’s not interested in controlling the costs of legal education, what the general public hears is that lawyers are not interested in controlling the costs of legal services.

    What about taking back the guild?

  • Anonymous

    Great point! Those remarks were outrageous and not only suggest that lawyers don’t care about costs but are completely out of touch

  • Sandy Woessner

    I have a new years resolution for you. Can you please please recognize that when I use my “mediocre commodity product” to draft a will for a woman in the last stages of huntington’s disease and my “mediocre commodity product” enables me to draft the will quickly and go to her  to execute that document, thereby  making her life just a little bit easier,  can’t you recognize that that is worth something? I enjoy your blog, but sometimes tire of the  attitude regarding solos who choose a different practice style.

  • Brian Tannebaum

    We don’t know what its worth until someone challenges it. When they do, I assume most virtual lawyers will be virtually unavailable to do something odd, like talk to a judge or another lawyer. Selling documents is selling documents. Lawyers sell advice.

  • Carolyn Elefant

    I think that you probably have the wrong idea about my blog and my post. What you have described is exactly what I mean about using technology in a positive manner – here, you’ve using a form to speed up the process so that you have the time to meet with her.  In my view, you are not selling documents – you are selling the relationship (well, unless you just drop the will off at her door and run away) Likewise, I loved the idea of those guys who set up shop in the mall to answer people’s questions. 
    We are fortunate to be practicing at a time where we don’t have to be so unimaginative as to make the form cheap. We can reduce the cost of all of the other stuff we do to make our bespoke time more affordable. 
    The other thing about forms is that once you automate something, the price will eventually reduce to zero.  I don’t even need to buy an LZ will or online corporation – because I can find places online where they are free.  If all you are is a form filler (which again, does not seem to be your situation), you’ll be the one going out of business just as quickly as some old school dude. 

  • Sandy Woessner

    Dang it. I hate it when someone gives a reply that makes me second guess my response! As far as the second paragraph goes, I agree that costs are only going to go downward, but I have no idea how to unring that bell. I’m not sure anyone can.

  • http://www.simmonsandfletcher.com/ Houston Personal Injury Lawyer

    Technology has taken us towards a world where information is readily accessible to anyone.  Seems like you can buy software to draft a will, file a petition, get a divorce–all without the need for a lawyer.  And when some poor fool winds up loosing everything because he tries to handle a major legal battle armed with a laptop and software with a catchy name like “pocket lawyer,” its ok because there is a little disclosure on the back of the box saying “this is not intended as a substitute for legal advice.”  Web 2.0 is not going to make life an easier for lawyers either.  We need to make sure the stories of people who ruined themselves trying to play lawyer get to the media so people are aware of the risks.

  • Geri

    Thank you Carolyn. Very interesting and well written. Very good points.

  • Geri

    Thank you Carolyn. Very interesting and well written. Very good points.

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