Let’s Make the Next Decade in the Legal Profession Less Disappointing Than the Last
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On the dawn of a new decade in the legal profession, I should be excited about the future. As Bob Ambrogi optimistically writes, there is much to celebrate from a surge in startups, the upending of the WEXIS duopoly, and a push towards regulatory reforms to allow for outside ownership of law firms. Social media, which was barely a blip on the profession’s radar back at the turn of the decade when I joined forces with Nicole Black to write Social Media for Lawyers: the Next Frontier is now an integral component of most lawyers’ marketing plans. The advancements of the past decade have touched me personally too; without technology in all its glorious forms, I would never have had the career that I have had, nor have been able to work from home on my own schedule when it mattered the most.
Yet the more things change, the more they stay the same. I’d characterize most of the last decade in the legal profession as derivative rather than disruptive. In other words, we’ve seen the adoption of technology to replicate tasks that we do as lawyers rather than change the need for those tasks all together. Think about it. The cloud has replaced paper file cabinets – it has not obviated the need for lawyers to retain files – and in many instances, original copies. Social media and websites replace print ads and the yellow pages first blessed by Bates v. State Bar of Arizona but they haven’t significantly changed the way that consumers go about finding lawyers. Various programs make it easier to comply with trust accounting requirements – but lawyers are still subject to these onerous and anachronistic rules for trust accounts that aren’t needed in a 21st century cache and carry, e-payment world.
I’m not suggesting that any of these tools – law practice management, online marketing or even trust-account compliant e-payment systems aren’t necessary. They’ve made thousands of lawyers’ lives easier. But seriously, how many copycat law practice management products or another AI-powered marketing tools or e-payment tools for lawyers do we really need? The additional market entrants aren’t reducing the costs; in fact, it seems as if the cost of law practice management platforms has increased over the past decade even with more players in the field. And many of the platforms still don’t have all the bells and whistles that solos and smalls need, thus necessitating the integration of other tools so that by the end of the day, some firms may be paying hundreds of dollars for practice management or intake and marketing. Moreover, many of the lawyer-side tools that have come on the market in the latter part of the decade aren’t particularly innovative – and there are already dozens of less expensive tech tools built for small businesses that work equally well. When I see investment going into legal products that are simply more of the same, that’s not innovation. It’s simply a play for low-hanging, low-risk fruit.
As frequent readers know, my wrath is uniquely reserved for services like LawPay or the myriad of “form-filling” services (some built for lawyers, others for clients) that simplify and reduce the cost of compliance with complex regulatory requirements (respectively, lawyer trust accounting and divorce, probate, small biz incorporations or nearly any other type of legal filing) but do little to evaluate whether technology advances might obviate the need for this complexity to begin with. Although granted, these tools are necessary now, and have enabled many solos and smalls to compete and offer unbundled and low-cost services, my fear is that at some point, these tools will entrench overly complex and unnecessary systems (like trust accounting) when we should always be evaluating how we can use technology to simplify or eliminate archaic practices.
For me – and I’d agree with Bob Ambrogi here – the most promising innovations of this decade have come from products like Casetext’s CARA which created a legal research tool that never existed in any form before, or tools like DocketBird or Docket Alarm that give practicing lawyers a way to finally glean value from the millions of cases in the PACER data system, which remain shrouded from view in practical obscurity due to the absence of a sensible search engine. What’s more, these tools are also priced at a fraction of the cost of their monopolistic predecessors.
Another one of my beefs with the purported reforms of the past decade arises out of the cognitive dissonance between the efforts to expand access to justice by relaxing rules on law firm ownership on the one hand while tightening the vise of ethics rules applicable to lawyer marketing on the other. For example, late in the decade, California moved to reduce restrictions to allow persons or businesses other than a lawyer or law firm to render legal services. Yet at the same time, nearly a half-dozen states determined that Avvo Answers – which would collect a percentage of a flat fee paid to a lawyer to answer a question – constituted impermissible fee splitting. So in other words, a New York consumer can seek advice from a California bot without issue but is prohibited from paying $39 through a platform to consult a bonafide lawyer because Avvo would receive a cut of the payment (just like a bank receives a cut of a client’s credit card payment). Where’s the logic in that?
Meanwhile, with hacking and cybersecurity breaches and deep fakes on the rise, ethics regulators are still treating these issues as quaint little ethics problems related to client confidentiality or preservation of client property rather than a huge can of worms that could expose clients to identity theft and other harms and give rise millions of dollars of exposure for lawyers for data breach claims. Earth to regulators: security is too big an issue for you to manage. Step away from the console and allow agencies like the FTC –which have the institutional knowledge and resources to keep abreast of security risks and bring enforcement actions against perpetrators — run this show. Instead, ethics regulators are better off devoting their time get their own house in order.
As we approach the next decade there’s so much more work to be done. Just a few examples. We now stand twenty percent of the way through the 21st century – yet many courts STILL haven’t adopted e-filing. That’s utterly shameful. We currently have the ability to use technology to transcribe trials and depositions – yet our system remains beholden to the court reporter lobby that effectively imposes a tax of anywhere between $1000 and $10,000 on every litigant who must obtain deposition transcripts for trial or trial transcripts for appeal. What a sad embarrassment. And honestly, I can’t recall the last time I heard the ABA or another large bar association to lobby for new laws that would obviate the need for court-reported transcripts. That’s just as shameful as not using the tech to begin with.
Not surprisingly, ethics rules rank high on my 2020 decade reform agenda. The ABA’s Ethics 2020 Initiative that kicked off in 2010 was an utter waste – with significant issues left unresolved and a handful of tepid scriveners’ changes by the end of the decade that merely ratified the obvious. As a result, ethics rules still remain hopelessly out of date. Today’s rules must reflect the needs of today’s sophisticated and empowered consumers instead of treating them like a bunch of helpless dolts easily deceived by an online testimonial or review, or who would prefer to trek to a brick and mortar office instead of being able to work with lawyers virtually from the convenience of their own home.
Further, when it comes to ethics reforms, vendors ought to be out fighting for them front and center instead of foisting the risks of a newfangled system off on the solo and small law firms who use the systems. In this regard, kudos go to the next-gen legal research companies like Casetext and particularly Fastcase which have put their money where their mouth is when it comes to taking steps to democratize the law and reduce the cost and increase the quality of legal research. But despite the optimism from academics who haven’t practiced law about the prospect for and benefits of outside ownership to promote access to justice, frankly, I don’t see any change coming this decade unless (1) there’s a way for companies to make a buck off these services and (b) a vendor or other deep-pocketed entity mounts a serious anti-trust challenge to resolve the regulatory uncertainty that hinders real innovation.
Another disappointment of the last decade was the continued harping on the absence of women lawyers from the ranks of big law. Technology has been a great equalizing force for women, enabling many of us to continue our careers and become leaders in our field without missing a beat while parenting. Yet technology hasn’t seemed to make a difference for women at biglaw – and I quickly lost patience with any hope of change. Recall that way back in 2007, I pondered whether women should attempt to rescue biglaw from rampant sexism or leave and start fresh.
And thirteen years later, that same question remains. We still see story after story lamenting the absence of women partners at biglaw. And we still ignore the accomplishments and example of the thousands of women who are killing it as captains of their own practice. Why do we continue to exalt biglaw as the be all and end all of legal careers when it treats women as it does? Instead of focusing on reform at biglaw but still worshipping the institution, let’s turn the tables entirely and start respecting and encouraging women owned law firms as a bonafide career choice. That is how we disrupt and change.
As a final note, the start of this new decade fills me with nostalgia because it will probably be my last decade of blogging at MyShingle and practicing law To my colleagues who have been around as long as I have, if not longer, we need to laying the groundwork to step aside and open the gates for the next generation. Once upon a time, crusty old curmudgeons and aged corner-office partners had the ear of the younger generation in the profession. And truth be told, though as a young lawyer, I eagerly waited for the day that my word would be gospel, I’ve since realized that my experience of starting a law firm 25 years ago when there really weren’t many young women doing it doesn’t resonate in a world of stratospheric law school debt and the availability of so many other kinds of legal career choices – from JD-preferred legal ops and compliance to legal tech to staff attorney positions and online communities that provide information and support. My relevance and that of my contemporaries is diminishing – and that’s a good thing – something to celebrate, not fear or lament.
Nevertheless, there is one thing that lawyers of my generation can do to ensure that change progresses. Instead of continuing to run our mouths and insisting on dominating the conference circuits, we can burn. it. down. Some of us enjoyed immense success over the course of our careers under the old system, others of us have felt the disappointment in the lack of progress. But we have had careers, many of us have earned stellar reputations and we have nothing to lose. We can be the test cases that will move the system forward. We can be the risk takers, the trail blazers, the speaker-outers who can afford to put our licenses on the line in the name of real reform and leave a real and lasting legacy behind.
The last decade started full of promise for change in the legal profession but in my view, fell short of its potential. Let’s use this next decade to do better. Who’s with me?