Future Fridays: Hey, ABA – Why Do Solos and Smalls Bear the Burden of Access to Justice?
Four years on the heels of its Ethics 20/20 Initiative, the ABA is once again trying to make itself relevant. This time around, the ABA has established a Commission on the Future of Legal Services , with a goal of inspiring innovation and leveraging technology to expand access to justice. And guess who’s expected to bear the brunt of providing access to justice? None other than solo and small firm practitioners who already do more than nearly any other sector to make legal services available to ordinary folks.
You think I’m kidding? Would that it were so. But one of the issues on which the Commission is seeking comment is:
How can small law practices (e.g., solo practitioners, lawyers in rural communities, small firm lawyers, etc.) sustainably represent those who do not have access to legal services?
What’s more, we’re the only segment of the population to attract our own shout-out. There’s no mention of what big law attorneys or government lawyers or legal academics or legal tech start-ups can do to represent those without access to legal services. Only solo.
Sadly, most sustainable solos and smalls — the ones who could really teach the next generation of solos how to thrive – lack the time and interest to defend ourselves, or frankly, to legitimize this idiocy. Back in 2010, I tried getting the word out about Ethics 20/20, even going so far as to host a webinar and post my comments for public view. At one point, GP Solo invited me to help put comments together – an initiative that went nowhere because no one would step up to prepare a draft or even provide input on the comments that I’d put together.
Yet for all my efforts, radio silence. Not surprisingly, the Committee ignored my input – even though the issues that I raised dealing with multi-jurisdictional practice continue to confuse many solo and small firm lawyers, deterring them from engaging in activity that’s perfectly ethical.
To be fair, however, it wasn’t just solos – but most lawyers – who even bothered to participate in the Ethics 20/20 initiative. The bulk of the input hailed largely from marketers and cloud-computing companies. And while these interests deserve a voice, they shouldn’t be driving the train.
This time around, I fear, the imbalance between vendors and lawyers will be even worse. Now, there’s a herd of investor-backed start-ups clamoring outside the ABA’s door to persuade the legal profession to jettison ethics prohibitions on non-lawyer ownership and outside investment. Who can blame the ABA for breaking bread with these fresh, new companies who can inject money into the organization with lucrative sponsorships. In exchange, these companies gain a semblance of legitimacy which in turn, helps them to push their platforms as “opportunities” for solos and smalls to access new clients while providing legal services at deeply discounted rates without ever gaining a stake in the client. Perhaps the ABA honchos view this scheme as a foundation for solo sustainability, but from my view, pushing solos and smalls into platforms is the beginning of the end of the kind of independent law practice that’s so vital to our judicial system. Instead of sending us forward, the ABA’s scheme will send us back to the days of the solo as the
To be clear, I’m not opposed to the new generation of
Message to ABA – if you truly wants to expand access, then impose the responsibility for it on everyone. Why not tithe big law partners, force #newlaw companies to offer a certain percentage of their forms and dial-up advice services free and bus law professors down to the court houses to man the pro se desks during the 20-something hours a week that they’re not teaching in the classroom? We solos and smalls do enough already. If you make us do more, we may not survive much longer.
The ABA is fully aware that if you put free/pro bono/low bono work in commissions and initiatives, it won’t go anywhere. Listening to ABA 20/20 or pro bono commission spokespeople is literally cringing in your seat. It’s the only species on earth that can twist itself in so many directions all at the same time.
Hear hear.
I will say this, however — not all client matchmaking services are alike. I’ve been having some success with one that has been providing me clients actually in my area of practice (as opposed to criminal law, divorce, personal injury clients), and isn’t forcing my rates downward. And as the internet becomes the first place prospective clients look for a new lawyer, these services will become more important. It’s incumbent on us — the lawyers — to reject the services that don’t provide value, that make pricing a race to the bottom. If we reject the $25/15 minute consultation services, these services will ultimately either fail or have to adapt.
Ugh.
I agree with this. It’s very hard to distinguish the signal from the noise (amongst matchmakers, SaS companies and fly-by-night consultants…). What bugs me about the “access to justice” discussion is that it is usually code for “making legal services cheaper” and most of the time, solos and small firms are the targets. For small law practice, the barriers to entry are at an all-time low, but the complexities of actual law practice and running a practice, never mind a successful one, are massive.
Carolyn, I think you’re totally missing the point here. The key word there is “sustainably” — how can solos and smalls sustainably represent those who do not have access to legal services. Legal economists such as Gillian Hadfield have identified this as a problem that is unique to smaller firms. The business structures of small firms simply do not allow them to provide significant pro bono or low bono services. Google Hadfield and read some of her works. She makes a convincing case that simple economics proves that small firm lawyers are unable to contribute in a significant way to closing the justice gap. I think it makes great sense for this commission to examine how small firm lawyers can do more. It’s exactly the reverse of what you’re saying. It’s not saying that small firm lawyers should singlehandedly shoulder the burden. It’s suggesting that they’re not doing enough because they’re focusing on paying their overhead and supporting their families and keeping their small businesses running. It’s back to that issue of sustainability. Can small firm lawyers do pro bono and low bono work and still sustain their practices? I say kudos to the ABA commission for tackling this question.
Well, just the notion that solos and smalls are “not doing enough” is kind of insulting. We already serve classes of customers that BigLaw wants nothing to do with. Our rates are typically lower than BigLaw, so we already provide access to lower-income clients.
The analysis shouldn’t be on whether we are meeting an arbitrary standard of “doing enough.” How much we should be doing ought to be tied to what kind of revenue we are bringing in. If profits per partner at solos and smalls are equal to profits per partner at Wilson Sonsini or Proskauer Rose, then the ABA can start to ask whether we are pulling our fair share.
Jay Foonberg has an interesting take on the issue of doing pro bono work. He says that rather than waste time on pro bono work that could be spent on building our own profitable practice, lawyers should simply make money and then donate some to places like Legal Aid and other similar agencies. By doing so, lawyers would be helping to provide paying jobs to other lawyers who are already serving those communities.
When we talk about “doing enough,” the point isn’t whether solos or smalls or even bigs are doing their best. The point is that the justice gap is getting wider, despite our best efforts. So far, lawyers are not getting anywhere close to closing the gap. The numbers of unrepresented litigants is skyrocketing — and not just among the poor, but also the lower and middle class. Someone has to take a good hard look at whether the legal profession, as it is now structured, can ever close this gap. If the answer is “No” — and I believe it is — then we as a profession must lead the charge in finding other ways to help those who need legal services.
As for Foonberg’s suggestion, that’s like throwing cupfuls of water on a raging forest fire. And, in any event, the problem extends well beyond those who would qualify for legal aid.
So, again, it’s not that solos and smalls aren’t *trying* to do enough. It’s that, no matter how hard they try, they will never be able to do enough to close the gap.