The Future of Law from the NYSBA

I was pleasantly surprised to read the New York State Bar Association (NYSBA)Task Force Report on The Future of Law. For starters, the report characterized solo and small firm lawyers very even-handedly; pointing out the ways in which solos have leveraged technology to their advantage. From the report:

Solo and small firm practitioners are not immune from these changes. Historically in the forefront of fixed-fee arrangements in many practice areas (e.g., immigration; criminal law; real estate; trusts and estates), these practitioners often may be in a position to meet the value-based needs of individual and smaller entity clients. Technology is a great leveler, inparticular with the contract-based services that have become available to complement a small firm’s work, and may provide small firm practitioners the structure that will enable them to compete effectively for business in a value driven world that would have been entirely out of reach under the prior legal service delivery model.

At the same time, the Report also acknowledges the flip side of technology and potential threat posed by online self-help resources to some solos:

The bulk of their services may be characterized as consumer services, and may be less complicated than work encountered in a corporate transactional or trial practice. Yet small firms and solo boutiques also serve small to very large business clients and individuals with complex claims. Meanwhile, the competition for consumer services is fierce because many lawyers are competent to handle the work. In addition, smaller practices face increased pressures from the increased availability of information and the disaggregation of services, including online lawyers and legal service providers (many of whom are not lawyers). Self-help books and services encourage consumers to handle legal problems themselves without the assistance of a lawyer. And in many jurisdictions, the number of individuals representing themselves pro se in legal proceedings has increased dramatically. In a variety of settings from financial planning to real estate transactions, nonlegal service providers have encroached on work traditionally handled by lawyers. In most states, unauthorized practice laws go unenforced, leaving small firm practices to compete directly with nonlegal service providers.

Though the Report briefly laments the lack of enforcement against these forms providers for UPL (an approach that I don’t endorse, it also offers a better strategy – ways that solos can take advantage of self-help trends:

Given that greater availability of information may lead to “self-help” efforts by individuals and small businesses, solo practitioners and small firms may wish to communicate a willingness to review and advise on the client’s work. A Trusts and Estates client may come with a financial plan or draft will already prepared courtesy of an Internet Web site, seeking simply the last bit of lawyer expertise and advice. Parties to a divorce may come with a draft separation agreement. These Internet-drafted documents may have been created with sophisticated software, much like tax returns can be prepared now, and an attorney may be necessary only to review the final product and determine it has been completed appropriately.

The NYSBA Task Force also suggests ways that solos can position themselves to provide services at competitive rates:

The Task Force believes that small firms or solo practitioners with specialized skills should consider the development of business models to leverage on the work product of others and provide specialty services to a wide variety of businesses around the country or around the world, utilizing their expertise and taking advantage of their low overhead price advantage. These attorneys may have no office outside the home, may have little infrastructure investment, and may communicate with clients only at a distance. There are already specialty immigration attorneys operating electronically across the U.S., with a large contingent of paralegals, serving a high volume of immigration clients, either directly or as the “back office” for other lawyers. When they need expertise or help, they may contract with a research agency, possibly offshore, or buy drafting services from another online lawyer. Similar approaches likely will be applied in other specialized fields. Alternatively, small firms and solo practitioners may affiliate to create relatively permanent virtual teams. As is done now in some plaintiffs’ personal injury practices, they may act largely as the intake end of a service process, while the bulk of the substantive client work is done, for example, by a firm specializing in claims regarding a particular product or in class actions.

The Report helps solos and small firms indirectly: by urging better quality control for CLE programs, as well as reduction in price. Lawyers who work at firms or government don’t have this problem, either because their employers can vet the programs or provide training themselves. And the Report also emphasizes that:

Finally, the costs of CLE programs and courses must be reduced. Many programs and courses cost hundreds of dollars for just a few hours of CLE credit. Although most large firms cover these fees for their attorneys, many young attorneys who are working in government or small law firms must pay for the courses themselves.

There’s much more in the report about big law, work-life balance and legal education but overall, it provides an accurate snapshot of where the legal profession is today and an excellent description of the challenges – and opportunities – that await. Kudos to the NYSBA Task Force.