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 struggling, starving bottom-feeder.

To be clear, I’m not opposed to the new generation of client matchmaking services . They help expand access and there’s surely a role for them. But platforms run by non-lawyer operators are unlikely to ever provide a foundation for robust, sustainable solo practices that continue from generation to generation. Nor will a steady diet of unbundled and low-bono work.

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.