We are two decades into the internet era and have witnessed the transformation of entire businesses and industries. Remember travel agents, America Online, or video rental stores? Could you live without a smartphone, Amazon, or Google ?
As a profession, we’ve been alerted to the evolving future for at least a decade from a variety of commentators, including Sir Richard Susskind and Jordan Furlong, as well as various bar association reports, and most recently, the American Bar Association’s Report on the Future of Legal Services in the United States. Among the forces that are impacting the profession include a recognition that most Americans cannot afford to hire a lawyer and are seeking lower cost services; non-lawyer competition in the marketplace, especially from online providers; evolving computer technology, including artificial intelligence and data analytics, and changing attitudes among many within the profession that consumer protection from unauthorized practitioners is often really lawyer protectionism.
Whenever we discuss recent changes to the legal profession, we always seem mention just two examples: Legal Zoom and Avvo. Rarely can we think of another example of change in the legal marketplace. So while the world around the legal profession is changing dramatically, few lawyers are making changes to the way they practice law. We aren’t adopting new delivery models or new technology, nor actively asking clients in the marketplace what changes they would like to make legal services more accessible and affordable.
What changes has your firm made in the way legal services are delivered? Are you using the same office and tools that lawyers have used for 20+ years? We seem frozen in place. We read about the evolving changes to the profession, then go back to working the same way we have for decades. Why is that? Why aren’t we changing to take advantage of the new opportunities in the marketplace?
I believe there are three major impediments to lawyers changing how we practice. These prevent us from taking opportunities to serve more clients with more affordable legal services while maintaining a profitable law firm and satisfying career.
Ethics and Innovation
The Rules of Professional Conduct have a huge impact on how lawyers deliver legal services, and are an impediment to changing those services. Most of these rules are really business rules. They instruct every lawyer how to conduct their businesses. Only one rule addresses substantive legal conduct—Rule 1.1—Competence. All of the other rules inform lawyers how to deliver their legal services to clients: How hard we have to work (Rules 1.2 and 1.3) and when we can stop working for the client (1.16); when and how to deposit money (Rule 1.15); how to charge (Rule 1.5); when and how to communicate (Rule 1.4); how and what information to protect (Rule 1.6), and how lawyers can organize our businesses (Rules 5.4-5.6), among the other rules. Our advertising rules (7.1-7.5) tell us how we can communicate with potential clients, and other rules tell us who we can represent (Rules 1.7-1.9).
The rules play an important role in the self-regulation of the legal profession, and exist to promote and protect many worthy objectives, including consumer protection and meaningful access to justice. However, the ethics rules directly impact how services are delivered and the cost of doing so. The penalties for not following the rules can be severe. In addition to the time and cost of defending a disciplinary complaint, lawyers face loss of their license and the ability to continue practicing law. Good lawyers spend a career learning to stay within the scope of the rules, so as to avoid these penalties.
So if lawyers are directed to all follow similar rules that instruct us how to conduct our business, and lawyers face severe penalties for not following the rules, is it any wonder that few lawyers innovate?
For example, many state bars have imposed significant requirements and limitations on lawyer advertising. Numerous states require pre-publication screening and post-publication recordkeeping of all advertising, including websites. Navigating myriad advertising rules, especially in light of social media and other internet-based marketing opportunities, is daunting for most solos and small firms.
It takes time, money, and effort on the part of the lawyer or law firm to comply with all applicable rules. The Florida Bar has published a handy 126-page guide to help lawyers comply with all the rules, regulations and recent amendments. Why should it take 126 pages to explain all the limitations on the right to communicate with the public about legal services? There may be good reasons for these rules, but we must understand the business costs these rules impose on firms large and small.
Lawyers face business hurdles not faced by other businesses. A plumber, accountant, etc.—may be hired for a specific task that is limited in scope, but lawyers who sell their legal services in the same way are subject to scrutiny, especially in litigation matters. Failure to properly document the scope of the relationship, or failure to convince a judge that a proper withdrawal is warranted, may leave the lawyer engaged in a business relationship that was not part of the bargain. Although the concept of limited scope representation (unbundling) has been in our Rules of Professional Conduct for years, it is still not welcomed in some areas of the profession. Ghost-writing complaints and briefs is one such area. Such uncertainty adds to our reluctance to use this method of lowering the cost of doing business and lowering the cost of services to clients. In 2013, the Illinois Supreme Court enacted a detailed court rule to facilitate limited scope representations and provide guidelines for judges, consumers and lawyers on such representations. However, although the court should be applauded for this step, few lawyers in Illinois are even aware of the court rule, so few offer unbundled services.
