DINOSAUR WORLD

After going to the Hillsborough County Bar Association luncheon today and hearing President Ray Abadin’s speech, I’m going to use this space to share some personal thoughts about the future of law practice the way I see it.

First thought – Lawyers are used to a status quo where people pay us because they have to. Modern law practice at its core is primarily built around this concept. Lawyers (surprise!) came up with the concept of what the practice of law actually is, and gave themselves the power to prosecute people who run afoul of this rule (surprise!). Once we created this concept of the “practice of law,” lawyers began erecting barriers to entry so that fewer and fewer people could compete for the profits to come out of that fixed market. The LSAT, law school, bar admissions, ethics tests, and so forth.

For all it talks about how “the bar” has been around since the middle ages, the Florida Bar has only been a real regulatory body since 1950. If law is an ancient profession (and it is) then the requirement for lawyers to be members of a compulsory organization is a very, very, recent development.

In essence, the modern practice of law exists because lawyers invented it, define it, and have the power to punish people who try and encroach on it. The bar associations have built a wall to keep consumers out, lawyers in, and to require consumers who want to access the court system or vindicate their rights to get someone from inside the wall to do it for them

There are several reasons for lawyers doing this. The first reason the bar associations and most lawyers put forward is that having a regulating body with the power to license and punish bad lawyers ensures consumer safety. In other words, when you hire an attorney in Florida, you are assured that this lawyer has a minimum level of competency because they had to pass a test and fill out some forms. The other reason the bar associations exist is pure economic protectionism. They ensure that a legal market exists, and that only those they anointed have access to the profits from that market. There are other reasons bar associations exist, such as “ensuring access to justice, etc.” but they are really all ancillary to these two.

Second thought – Consumers on the outside of the wall – those in need of some type of “legal services” as the bar has chosen to define them – are questioning the need to talk to a lawyer at all about it, let alone hire one. Well … maybe questioning is the wrong word. People are actually flat out rejecting the idea that they should hire a lawyer before even talking to one. The number of people representing themselves was already high and climbing steadily before the Great Recession of 2008. At this point some people even estimate that a lawyer making a median salary of $94,000 would be unable to afford their own services. So, it turns out, the only two segments of the population that are actually being represented by lawyers are the very poor, because they qualify for either the public defender or for legal aid, and the very rich, because they can actually afford to hire an attorney.

Third thought – A lot of what lawyers are used to doing isn’t brain surgery. Asking a judge to evict a delinquent tenant isn’t the same as managing anti-trust compliance in a corporate merger. One you should probably get a lawyer for, the other you can probably figure out by going online. Yet lawyers keep pretending like everything is brain surgery – delinquent tenant eviction and anti-trust compliance alike. You really think someone thinks it’s necessary to hire a lawyer at $200.00 per hour to go ask a judge to kick out somebody who hasn’t paid their rent? Here’s the forms. The rest is just following directions.

Fourth thought – Companies like LegalZoom and Nolo are competing with lawyers for these potential clients and winning. Maybe “competing” isn’t the right word, since lawyers and these companies are playing on different fields. Lawyers, because they are regulated by the bar, are subject to a Byzantine system of rules and “gotchas” about how they can advertise their services (Florida isn’t alone in creating nonsensical rules about advertising). According to the Florida Bar, lawyers can advertise using (and I’m quoting here, I’m not making this up. the advertising committee actually had to spell this out):

  • common salutary language such as “best wishes,” “good luck,” “happy holidays,” “pleased to announce,” or “proudly serving your community”;
  • punctuation marks and common typographical marks;
  • an illustration of the scales of justice not deceptively similar to official certification logos or The Florida Bar logo;
  • a photograph of the lawyer or lawyers who are members of or employed by the firm against a plain background consisting of a single solid color or a plain unadorned set of law books.

LegalZoom, Nolo, and companies like them aren’t bound by these rules since they aren’t law firms. This isn’t an issue of the playing field being unlevel – it’s an issue of lawyers strangling themselves voluntarily.

Fifth thought – Byzantine rules such as the Florida Bar’s advertising rules will always favor established players. There are several reasons for this. First, the established players may have helped write those rules, since in an organization like a state bar these rules are written by committees made up of lawyers from established firms. Established players have both the money and manpower to ensure compliance with the rules. Established players also like complicated rules not only because it helps them, but because it helps their clients as well. Consider the following scenario as laid out by one of my old professors in this news article:

There’s a wreck on the highway and the driver of one car is injured.

Two lawyers approach.

One offers to help the driver get his medical bills paid by the person responsible for causing the wreck.

The other lawyer represents the person who just ran the driver off the road. He wants to persuade the driver to sign a release form absolving his client.

The lawyer who wanted to help would be violating ethics rules, Atkinson said. The other lawyer would be in the clear.

I don’t think we’re facing a problem where people and companies on the outside of the wall we’ve built are tearing it down – they’re ignoring the wall and the lawyers inside it – for good reason.

Sixth thought – During the Great Recession law schools saw the opportunity to make a huge profit by letting in more and more students, since law schools run at a relatively low overhead as far as professional schools go. But this is just half of the problem. Lawyers aren’t retiring at the rate they used to, due in parts to living longer and the great recession erasing retirement accounts and home equity.

Seventh thought – Lawyers in Florida are frothy about reciprocity (I think without good reason), but are missing the big picture. We’re fighting over how to rule and govern our increasingly shrinking kingdom inside our wall instead on focusing on how to reach out to the consumers on the outside, figure out what they need, and then deliver that. This is a symptom of lawyers still believing that since we created and defined the practice of law we will always get to control it.

Eighth thought – What we as lawyers think the “practice of law” is, is vastly different from the reality. Courts are starting to say that our definition is way too broad. Do you think someone needs a doctorate degree and state bar certification in order to look at a document and decide whether or not it contains certain words?

Ninth thought – No one in Florida, as far as I can tell, is talking about this North Carolina federal court decision that may spell the end for state bars being immune from anti-trust lawsuits. Isn’t a state bar association, in reality, an anti-competitive organization?

Tenth thought – If a lawyer is losing clients because what they did was so rote and automated that they are easily replaced by Nolo, Google Scholar, or LegalZoom what does that say about the amount of value the lawyer added to the consumer’s experience? I think the marketplace is sending us a very clear message. If lawyers don’t add value, then consumers aren’t going to use lawyers, if they can help it. I add the “if they can help it” part because some things legally require a person to hire an attorney and pay them, like probate administration.

Eleventh thought – Earlier I talked about how the Florida Bar has really been the only game in town since 1950. We are acting, however, like it’s been the way it is now for centuries. We are also acting like there is no other alternative to the way it is now. Maybe we lawyers are so busy trying to tell each other just how important / essential we are that we don’t realize that many consumers have moved on. Same with the advertising rules – at this point I am unsure if doing away with advertising regulations entirely would put lawyers on an even footing with LegalZoom & Co.

Twelfth thought – Since I mention the advertising rules I’d love to see the statistics on how many complaints get sent to the bar about lawyer advertising every year, and how many are sent from other attorneys (or by consumers solely at the behest of attorneys). Do consumers even know there are rules? Do they drive around and wonder if John Morgan’s billboard where he’s dressed up like Santa is compliant?

Thirteenth thought – I’ll close with this: we assume that “Access to Justice” = “Access to Lawyers”. I don’t think that’s the reality. I don’t think that should be the reality. We keep talking about “Access to Justice” like “everyone should have a lawyer” but that’s focusing on the process, not the outcome. Consumers don’t give a shit about the process as long as they get the desired outcome. Justice is the outcome. Lawyers are the process, at least for now.