Reinvent Law: Solos Lost in the Transition

I did not attend ReinventLaw, but would have liked to. With four matters pending in various stages at the D.C. Circuit and my daughters in the height of school activities, traveling cross country even for a day wasn’t in the cards this time. So I settled for tracking the conference via the #reinventlaw hashtag feed which though constant, offered just a tiny keyhole view of the full event.

While I’m not sure that I’d characterize many of the concepts being pitched at ReinventLaw as novel (many have been tried, albeit in more primitive forms, before), what is new is both (1) the pace at which these trends (such as virtual offices, online forms, corporate outsourcing ala Axiom and alternative research services) are gaining mainstream traction and (2) recognition of the significance of these developments in academia – ReinventLaw is, after all, the brainchild of two MSU professors, Renee Knacke and Daniel Katz.  Technology and policy are driving these changes; tech gives us powers we never had before while the recent deregulation of UK markets  are creating financial opportunities that could fill the void left by the implosion of big law.  And of course, there’s also the prospect of expanding meaningful access to justice, which has always been one of my goals with this blog.

But if real change is going to come to our profession, it needs to include solo and small firm lawyers. And while I’ve steadfastly contended that solos and smalls are the most creative of lawyers; the ones who historically have driven innovation  in the profession — if only of necessity or desperation — we solos and smalls can’t always accelerate full-throttle into tomorrowland without compromising the needs of our clients today.

That tension between the promise of tomorrow and reality of today echoes in the comments of Fishtown lawyer Jordan Rushie  on Scott Greenfield’s post, Reinvent Law or What I Did on the Eve of Destruction (there’s also a back and forth between Scott and Dan Katz, who organized Reinvent). From what I know of Jordan, he’s not adverse to technology – it’s just that the courts where he practices haven’t quite come up to speed on the concept of “paperless,” and continue to insist of ink-signed, hard-copies rather than e-signed images on ipads.  I’ve raised similar concerns myself in my efforts to “trash the billable hour” – for much as I’d like nothing more to get rid of timekeeping forever, ethics rules and courts’ requirements for documentation of hourly billing to support attorneys’ fees requests prevent me from going all out. 

Just as the Reinvent guard is frustrated by lawyers who won’t use email or deride virtual offices, those of us who practice law are frustrated by assumptions that solo lawyers don’t know how to turn on a computer or a failure to recognize that we can’t sacrifice our clients on the altar of change. For example, while I’d love to lecture the courts on why insisting on eight paper copies is a stupid waste of time that runs up my client’s bill, taking a stand would only cost my clients in the long run: the judge would either assume that my work was garbage because of my tight budget or that I am a loser-of-a-lawyer who can’t attract better paying clients. And so, as with  many of the other inequities and stupidities inherent in the practice of law, I – and most practicing solos and smalls I know – just suck it up and perpetuate an imperfect system because clients come first (if we can’t buy into that notion, then we might as well deregulate the law and go home now).

lt’s not just clients who hold solos back; its concern about our livelihood as well – though not in the guilded mentality way that many assume.  Often, lawyers are slow to jump on board with every new marketing platform that purports to expand access to justice not because we want to protect turf but rather, because our licenses are on the line if the bar goes after one of these companies.  That’s happened at least once before with Total Attorneys’s pay per lead system, where the Connecticut bar brought disciplinary charges against individual lawyer participants for involvement in what was alleged to be a pay for referral system.

One solution to minimize lawyers’ reluctance to experiment is to create a  uniform ethics system and to remove ethics decisions from behind the copyright wall so that we lawyers can at least make our own judgment about the ethics of a particular service. (Incidentally, lots of talk at Reinvent about liberating the law, but no mention at all of the pernicious effects of cloistering ethics opinions that govern lawyers). An approach that I’ve taken in easing the transition to Legal Practice 3.0 for lawyers is through 21st Century Retainer Program , which offers lawyers practical advice on how to implement 21st century practice trends like digital documents, social media, alternative fees, cloud and outsourcing in an ethically compliant manner through revisions to their retainer agreements.

Perhaps those lawyers mocked by futurists – -the ones who truly are so behind the times that they don’t even know what questions to ask have it easiest – they don’t even know what’s coming.  But for the majority of us — the practicing solos and smalls with an eye eagerly on the future and all the promise that change holds for our justice system but with toehold in the past out of necessity, not nostalgia —  we’re lost in transition, torn between clients of today and law practice of tomorrow.  Those who are driving this train forward need to recognize the importance of bridging the gap, not cutting all ties.

Old & new architecture photo courtesy of Shutterstock