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The Founding Fathers and the Future of Law

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This past week, a rather vigorous Twitter debate over whether ethics regulators should characterize and regulate benign lawyer matching platforms as for-profit referral organizations was ultimately shut down with cries for “collaboration” and let’s all work together kumbaya-style to find a system that works for everyone and promotes access-to-justice besides.  Leaving aside whether it’s realistic for the disparate stakeholders in the legal industry to cooperatively address hot-button issues like non-law firm ownership or continued self-regulation, collaboration as a starting point to resolving big questions regarding the future of law is a really bad idea. If you don’t believe me, then in the spirit of Independence Day, take a lesson from our Founding Fathers on what it takes to birth a new system that still survives 232 years later.

Conflict Makes Us Stronger

Looking back, it’s hard to believe that the Declaration of Independence — with its  assured, brave prose full of “self-evident truths” and laundry list of grievances against the King — was far from a unanimous document when first proposed. To the contrary, the Founding Fathers engaged in bruising debates over divisive matters like renunciation of slavery whether to go to war with Britain or whether to self-declare independence. Over a course of months before its signing, the Founding Fathers first argued, then tweaked and edited, with all delegates eventually reaching unanimous agreement over the final draft. Had the Founding Fathers been less extreme in their approach, we might still be living under British Rule or have been left with an uninspired document riddled with caveats and exceptions that would have been long-forgotten.  Instead, robust debate and conflict lead to a stronger document that still inspires today.

As laying the foundation for a new independent government, creating a new future of law – more competitive, less self-regulated and with access-to-justice baked into the system’s very DNA – won’t come easily. In fact, for a new future to emerge at all we need strong visionaries with strong ideas willing to express their views intelligently and butt heads if necessary.  Cutting deals with regulators who like the King of England have remained clueless for just too long, or standing aside while companies with vested financial interests lead the debate may lead to short-term incremental reforms, but not widespread, systemic change.

Mistakes Will Be Made…And That’s What Generates Data

We often forget that the Founding Fathers didn’t get everything right on the first go-round.  The Articles of Confederation, which created a loose confederation of states and weak centralized government proved unworkable, leading to a stronger federal government and eventually the Constitution. And even the Constitution didn’t settle matters; it took a Civil War to permanently cement the Union.

Many lawyers are so afraid that loosening the reigns of self-regulation or opening the doors to even limited outside investment or ownership will either put lawyers out of business or, more concerning, harm clients.  Those fears, particularly harm to clients are well-founded and something I’ve warned about before. But the prospect of getting the future of law wrong shouldn’t stop us from at least experimenting through safe harbors or limited deregulation to see how it works. Once we have data – just as the Founding Fathers cleaned from the failed Articles of Confederation experiment – we’ll have a better idea of what needs change going forward.

We Can’t Know the Future

The Founding Fathers couldn’t foresee a future of using Google translate to obtain consent to a search or whether searching cell tower data requires a warrant or mass high school shootings and a need for restraints on weapon ownership. But nevertheless, the Constitution has held up pretty well as a guide in addressing questions of privacy, discrimination and speech in the modern world.  Likewise, we can’t set rules so specific that they govern  every platform or social media tool or DIY document system that may exist. Instead, let’s create rules for the big picture issues that matter to lawyers such as not deceiving or misleading clients or compromising one’s independent judgment. With the foundations in place, lawyers can figure out the details.

I’ll be taking the week off from blogging.  Have a fabulous July 4 holiday – and for my fellow shinglers, take some time to commemorate the day that you declared your independence and brought forth your law firm into this world! See you all on the other side!

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