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.