Who are thought leaders fighting "coming changes" in law practice?
July 1, 2015 11:34 AM   Subscribe

Huge economic forces ("disruptive technology" perhaps skirting state-by-state regs, venture capitalists, for-profit and failing law schools) are pushing massive changes for the practice of law in the United States, such as an end to state-by-state Bar admissions (national bar exam, reciprocal bar admissions), non-lawyer ownership of law firms (Wal-Mart law, or whatever), "limited representation" (implications too long to discuss). Who are the philosophical or even business thought-leaders urging lawyers and Bar organizations to oppose these changes?

There are "futurists" making a living touring and writing about how it is all going to happen, so lawyers better just go with the flow...that it is all necessary. Some lawyers quietly question the loss of independence, the focus on money, the diminution of intangible satisfaction. More just focus on how it might affect their "pocketbook." I might start a front page thread on it if folks want to debate it, but right now I am in a hurry trying to locate the other THINKERS on this...the ones who seem to have studied it all, thought it through... those writing and speaking about how caution is good, traditional restrictions are good.... etc. I want to reach out to such folks and get up to speed on this quickly!
posted by randomfan to Law & Government (10 answers total) 7 users marked this as a favorite
Are you looking for people talking about it, or people who are specifically defending "old school" law practice (and regulations and business models) and defending traditional fee arrangements? It sounds like the latter.

My starting point for a lot of this stuff was Bruce MacEwen, who blogs at "Adam Smith, Esq.". But I suspect you'd dismiss him as a futurist peddling consulting services.

A lot of the "we're embracing alternative fee arrangements because clients are forcing us to do it" can be seen in the interviews with BigLaw managing partners, in the usual legal rags but also on Above The Law and elsewhere.

Walter Olsen (formerly at Overlawyered) blogged a lot about the inefficiencies of the billable hour, especially in the context of class-action lawsuits and class counsel compensation.

I'm no longer a partner at a large law firm, but back when I was, the presentations weren't as much "going with the flow" as much as they were clients really putting pressure on firms to accept alternative fee arrangements, and firms trying to differentiate themselves from the competition. The day of the artisanal attorney is really past us, I think.
posted by QuantumMeruit at 11:57 AM on July 1, 2015

I certainly think you'll find fewer outspoken "thinkers" defending the old way of doing things because inertia is handling most of that for the established practices. Change requires a catalyst, but doing things the way we've "always been doing them" does not.
posted by craven_morhead at 12:10 PM on July 1, 2015 [3 favorites]

Response by poster: Presently, individual jurisdictions vet lawyer wannabes in terms of character and competence. Should getting admitted to the practice of law be made easier? There are two sides. Historically, the professional ideals place a high value on the independence of lawyers; and professionalism itself means to put something else first other than profit or self. Sure, as society decays and for-profit law schools and TV shows etc. push forward, such professionalism wanes. But should we allow lawyers to work for non-lawyers as they are serving clients? Should law firms be bought and sold on the market, with PE ration key? Or should we scrap all the rules about that? Will eliminating state-bar jurisdiction, largely, by having one national Bar; and combined with limited representation; mean lawyers will increasingly be part of huge, national corporations or "partnerships" focused on total return and doing pro bono as window dressing and surely NOT questioning the direction of Big Capital?

Will the commoditization of the practice of law for the middle class client and middle class lawyer dumb down advice and consultation and cases to forms and harsh cookie-cutter results? Will, or has, the income distribution from the practice been skewed heavily to a 1% of lawyer/owners?

I am not talking about the hourly rate or not..... Don't care much about that..... And am certainly for efficiency. I am simply looking for professors or professionals who are steeped in these issues and who are not seeming shills for rapid restructuring of the practice in ways that favor huge firms and the alienation of lawyers from the personal satisfaction of the idyllic daze gone by.....

I've got a gut feeling about this that I want to explore and develop by reading or hearing more about it from such an "expert." I really don't want to debate anything here, I'm just asking mefi for info.
posted by randomfan at 1:58 PM on July 1, 2015

The American Bar Association offers "a resource to help lawyers, bar leaders, the judiciary, court administrators, scholars and the media better understand and critically analyze the issues involved in self-representation and unbundled legal services."
posted by Little Dawn at 2:20 PM on July 1, 2015

I suspect that the bar's monopoly and barriers to entry to the profession mean that the forces of so-called disruption are so weak as to be completely ignored by the people currently profiting handsomely off of the barriers to entry and monopoly control.
posted by yarly at 2:35 PM on July 1, 2015 [1 favorite]

Yeah, UPL is a pretty big cudgel, and one readily employed against upstarts.
posted by leotrotsky at 6:42 PM on July 1, 2015

I'm not sure about her positions on the specific issues you identify, but Prof. Nancy Moore at Boston University School of Law does relevant scholarship; check her out.
posted by odin53 at 7:28 PM on July 1, 2015

I disagree with your premise.

Serious thoughtful people don't need to oppose these things, because they aren't actually a threat to the traditional profession.

There is no evidence that non-lawyer ownership of law firms is coming to the United States. The laws that would be required to permit it would be staunchly opposed -- no partner in a big law firm could make enough money by sale of his shares to justify his loss of independence, and no big law firm would want to concede the competitive advantage that outside funding would provide to upstarts. By the way, it's been mostly a bust in Australia and the UK.

Uniform bar exams have gone through in part because they haven't required new laws, and have conspicuously NOT gone through in the states that are most attractive to move to and have the most protectionist lawyers (California, Florida, Texas, Hawaii, North Carolina). With the conspicuous exception of New York, the states that have adopted the UBE are states with very easy Bar exams (as measured by the high pass rate of test-takers who, inferring from their law schools, have relatively low LSATs, LSAT score and Bar score being highly correlated).

Limited representation is getting in in some places because it is being positioned as a boon for the underprivileged, and that disarms the rhetoric of lawyers who don't want to be seen as mean, and because it doesn't threaten the income of any lawyer who has a real practice to speak of, because such lawyers do work either not permitted to limited practice licensees or work for clients who would never dream of hiring one anyway.
posted by MattD at 8:27 PM on July 1, 2015

Response by poster: It seems the question got more bashing than it did answers... MattD, you sound like an expert of sorts, but you simply blow off the concerns as unfounded... when all I am looking for is a compendium of arguments against these possible changes.

You say "there is no evidence" that non-lawyer ownership is coming to the US, yet it came to England; and there are people saying that having Wal-Mart owned firms will make legal services more affordable. You say no "partner in a big firm" would give up the independence... Well is this about big firms? And what isn't for sale? And what of this "independence?" Can't capital create a "big firm?"

As for the Uniform Bar Exam, I assert that there is a movement gaining momentum in favor of national law firms. You say it has "conspicuously" not gone through in some states, when in fact at least some of those states haven't considered it yet (I know because I live in one); and some of them are in the course of doing so.... To what end? With removal of of other state barriers that are being discussed, such nationwide "reciprocal" Bar membership, a national bar exam would pave the way to the large firms running most law... As in Wal-Mart or somesuch perhaps...?

Is "limited representation" an idea we needn't think about, MattD, because it doesn't matter much to lawyers who don't represent the rich our upper middle class?

This reaction to the question is the very reason I asked it! I see these ideas gaining ground, and I see it on the inside And I was looking for some help in finding who..... Who are the THINKERS, the scholars, the thought leaders (not the Bar leaders or law-business leaders, perhaps) who lead the way on these topics, in opposition to these changes perhaps. Personally, I'm hearing "futurists," etc., going the other way on this... and out there with no intellectual opposition... only self interested fear or financially based disinterest....
posted by randomfan at 6:32 AM on July 5, 2015

A more-fruitful discussion for you might an examination of why there's a paucity of people speaking out "in opposition" to the things you're seeing.

I suspect that you might also benefit from a realistic examination of the structure of the US legal market -- and the immense stratification between the way corporate America consumes legal services (and the structural changes occurring in BigLaw), versus everyday people seeking representation for a divorce, or a speeding ticket, or even basic incorporation documents.

There is probably could be a very interesting discussion regarding non-lawyer ownership of law firms, especially as it relates to the rise of giant international law firms structured as vereins, and the accusation that the verein structure is being used to circumvent US fee-splitting ethics rules.

There is also probably a very interesting discussion possible regarding Wal-Mart and its legal department, and the way it has exerted pressure on its legal service providers (and has brought several ancillary legal services in-house.

But again, a lot of those structural changes are not being debated by academics (or otherwise), because a lot of it isn't up for academic debate.
posted by QuantumMeruit at 8:58 AM on July 5, 2015

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