The Future of Law: Been there, done that, let’s do it better.

As the saying goes, there’s nothing new under the sun.  What law profs and thought-leaders tout as “the future of law” — from non-lawyer representation or nonlawyer ownership of firms  and form-based, assembly-line style or virtual law practices (for the record, not all virtual practices follow this model) — have their roots in legacy models that the legal profession discarded as unworkable or unacceptable both for lawyers and clients.

How do I know? Because it’s all documented in one of the most important books I’ve read on the future of law this year, Jerome Carlin’s Lawyers on Their Own; ironically, a book that focuses  on the past.  Based on individual interviews with dozens of solos, Carlin describes the conditions of practice encountered by solo practitioners in Chicago in 1958. While much has changed since then, much remains the same.  But what’s troubling is that many of the aspects of solo practice which have improved are the same ones that many of today’s legal futurists endorse or seek to replicate.

For example, back in the era that Carlin studied, lawyers faced competition from non-lawyers. In fact, back then, non-lawyer controlled business models (alternative business structures or ABS in today’s parlance) were fairly common, albeit on an informal basis.  Banks, not law firms, prepared most wills and performed estate planning directly in competition with lawyers.  (Carlin, Ch. 2)  Or, banks might farm legal work out to lawyers, — but only on the condition that the lawyer named the bank as executor – which might not be in the client’s best interest.   I’ve not seen any evidence that more folks in 1958 had wills than today or were better served by bank-controlled lawyers.  Yet, today, we lawyers are told that we ought to abandon the “old” in favor of the older.

Likewise, many of yesterday’s solos handled unbundled matters.  In fact, there existed a separate set of personal injury  lawyers who did nothing but negotiate with insurance companies, making demands but never taking cases to trial.  When trials couldn’t be avoided, these lawyers referred the work to more reputable firms but mostly, never attracted this work to begin with.  Likewise, many solos handled volume work like collections, which largely involved filling out and filing various forms.  (Carlin, Ch. 2)  Yet back then, solos handling these types of matters were regarded as bottom-feeders – and they longed for the day that they might graduate to a more upscale practice.  But just like putting lipstick on a pig doesn’t transform it  into a princess, spiffing up form-based practices with technology or rebranding volume practices as virtual practices doesn’t change the fact much of the work is inherently penny-ante, assembly-line work that in and of itself, may not necessarily be  financially viable. 

But  let’s forget about lawyers for a minute. What about clients? Aren’t they better served by lower-cost law start-ups that hold themselves out as all about access to justice? Not really.  The bottom-feeding solos depicted by Carlin operated at marginal, subsistence levels which lead to larger problems for clients.  According to Carlin, new solos just out of school struggled, earning around $2500-$3000 their first few years out (Carlin Ch. 1).  In today’s dollars, that’s about $18,000/year  which is even more paltry factoring in student loans.  When lawyers struggle they cut corners even more —  or use unscrupulous tactics like bribes to procure good results or attract new cases (Carlin describes use of runners and bribes to clerks and referral sources as common).  Doesn’t take a genius to figure out how that works (or more accurately, doesn’t work) for clients .  Yet, we’re endorsing models like bidding platforms that would force lawyers to work for subsistence fees (I know that I’ve suggested that some of these low-end models might work, if only because by contrast to some of the capped fees or bid sites, $99/hour is almost a fortune by comparison.)

Yet at least back in 1958, at least we lawyers wanted more for ourselves and our clients.  Carlin (though not a lawyer himself) was outraged about the conditions he observed.  Carlin blamed the upper echelons of the bar for a “gentleman’s agreement” under which biglaw turned a blind eye towards the unethical dealings of the struggling underbelly of the bar so long as these stragglers didn’t try to intrude on or spoil the genteel practices of the white-shoe world. Today, we’ve lost all sense of shame.  Rather than simply pretend that unequal access to justice is a huge problem, we reinforce and celebrate a two-tier system where lower and middle-income clients can receive sub-standard service through cheap form-filling middlemen like Legal Zoom, non-lawyer owned ventures and bidding and auction sites (again, I’m not suggesting that DIY or bargain options are always problematic, but there are cases where a lawyer is preferable)  And what’s worse, is that even as we settle for delivering the bare minimum to consumer level clients, deep pocketed businesses are reaping the benefits of technology with increasingly sophisticated tools like predictive coding, intelligent legal research and high end contract automation.

Forty-five years later, we can and must do better.  Yes, technology can save us but only if we use it as a means to the end of improving access to justice, and not as an end in itself.  In contrast to the struggling solos of Carlin’s era, today’s solo and small firm lawyers have the technology to improve the quality of service that we provide to clients.  Technology in the form of practice management tools, e-filing and affordable legal research enables us to provide to offer niche and bespoke services and compete in the upper echelon markets that the solos of Carlin’s era only dreamed of entering.  Technology can also help us educate clients and enable them to find us online so long as we keep control of the message rather than outsourcing our marketing.  As solo and small firms gain a sounder financial footing and move from surviving to thriving, we  then have the luxury of using those resources either to handle more pro bono work or to outsource or delegate smaller matters to newer lawyers who can handle them under our watchful eye.  By using the cloud, we solo and small firm lawyers can take our practices entirely mobile and develop business models that don’t remove us from the equation, but rather, allow us to visit directly with the clients we aim to serve, wherever they may be.

As we move into 2013, let’s make our clients the litmus test for whether a new techno-model passes scrutiny or not.  Do non-lawyer owned business models or automated forms as a substitute (rather than supplement) to lawyers truly reinvent the law or just repackage failed business models?   When we use technology with the goal of eliminating the need for lawyers, rather than making their services more accessible and affordable, are we disrupting the law or dysfunctioning our system of justice?  When we steer members of the public from the protective, attorney-client relationship available to the wealthy and treat them as mass market consumers instead, are we expanding access to justice, or simply giving up on it?

In the decade that I’ve blogged here, I’ve watched solo and small firm lawyers finally make progress away from the bleak picture that Carlin portrays; a world full of volume practices, nonlawyer owned ventures and pay-to-play.  We’ve been there, done that. Let’s make sure that the next chapter in the history of our profession is better than where we’ve been. Happy New Year to all and I’ll see you all on the other side!