A Riddle for the Legal Profession?

Is this stupidWarning: This blog post presents a question, but provides no answer. The question – How can it be that record numbers of law school graduates cannot find jobs while the average American cannot find affordable legal representation? While no answer to that question is provided, because each reader must reach their own answer, the theme of this blog post is to be positive and embrace whatever changes may come to the legal profession.

A number of recent articles have questioned both the system of American legal education and the American legal profession.  A recent article in the New York Times notes record numbers of law school graduates cannot find employment sufficient to sustain the debt service from their educational loans, which can be left for another blog post.  Another recent article in the Wall Street Journal, entitled The Law Firm Business Model is Dying, questions whether the law firm model itself is sustainable. Regardless of whether one agrees with such commentary or not, competitive pressures are being exerted on the full spectrum of the legal profession, from training lawyers to small and large law firms.

A paradigm shift is occurring in the legal profession, which makes this an exciting time to be practicing law. In my brief decade of legal experience I have witnessed many changes, and I have been mentored by other lawyers who have allowed me to look beyond my own limited event horizon to understand these changes through their experiences.  I offer two generalizations of sources of this change, and one prognostication of where the legal profession is heading.  Most importantly, I invite others to join the discussion, whether those participants are lawyers or not.

Sources of Change to the Legal Profession

First, computer technology has enhanced the profession of legal services while also tending to commoditize aspects of itThis element of change has affected the polar opposites of the legal profession. For example, as an entry-level associate at a large law firm, I was staffed on hours-intensive document reviews.  Electronic discovery, though technologies such as semantic parsing and disambiguation, has reduced both the cost and the requirement for attorney involvement.  My summer associate class had over 90, and many firms’ 2012 summer associate class had not 20.  Big Law has felt the effects and reduced its personnel requirements.  At the other end of the spectrum, computer technology has given much access to information once held exclusively by our learned profession.  A simple Internet search will reveal how to prepare a will, how to read a HUD1 form, and how to file a claim of disability benefits. The solo practitioner has felt the effects and changed his or her business model.

Second, competitive pressures from non-lawyers has forced the legal profession to retreat from certain areas of practice. One notable example of this retrenchment over the past decades has been in the area of real estate transfers.  Anyone who has purchased real estate knows that a standard form has been created and many real estate closings occur without the participation of attorneys.  While efforts are occasionally made by bar associations to reclaim some ground, the business model does not work and value is not provided in the minds of consumers of legal services in this space.  The past decade has also seen the introduction of businesses such as LegalZoom.com, which will prepare documents and records that were once the exclusive province of the local attorney. The larger law firms are not immune from these external competitive pressures, as consulting firms now employ attorneys and create for their clients, not only a recitation of what the law provides, but a plan to implement those laws into clients’ business models.

Acknowledging and addressing these paradigm shifts in the provision of legal services is the first step towards formulating a responsive strategy. To their credit, the American Bar Association, as various state and local bar associations, have begun this process. The ABA’s Ethics 20/20 Commission is considering whether the Model Rules of Professional Conduct require amendment to address technological changes and other external competitive pressures.

A Return of the General Practitioner

One silver lining for the legal profession is the Kafkaesque bureaucracy that has enveloped modern society.  When a dog groomer needs a professional license and most municipalities’ ordinances are more voluminous than the Constitution of the United States, citizens will always need guides to navigate safe passage through the bureaucratic bramble bush. Another silver lining is simply a return to good old fashion customer service.  A mentor once told me that a good lawyer simply solves clients’ problems. Clients do not care how the problems are solved; they simply want to leave that “how” to their lawyers, resting assured that a solution will be provided.

Lawyers need to be able to present a range of solutions to clients.  Sometimes those solutions are simple, and sometimes they are complex.  For every problem, a remedy exists. The remedy can be as simple as consultation, advising a client that a range of options exist and assisting them in objectively evaluating each in turn – that process itself being the cathartic release that was needed.  The remedy can also take an attorney to a supreme court or a legislature.  To paraphrase the above article title, I posit that the law firm business model is evolving over time, and the legal profession will continue to be discussed as it has since Plato wrote of Socrates’ conversation with Theodorus comparing the lawyer and the philosopher.

John F. Costello, Jr.

John F. Costello, Jr.

During hours better reserved for billing time, John’s hobby is contemplating the future of the legal profession and what one person could possibly do to reduce the number of lawyer jokes in our society. The rest of the time, John is an attorney at the Locke Lord LLP Chicago office and focuses his practice on complex commercial litigation and federal and state regulatory compliance. Since he requires little sleep, John also teaches at The John Marshall Law School, assists legal aid clinics for veterans and service members, and tries to be a great husband and father.
John F. Costello, Jr.
John F. Costello, Jr.

Latest posts by John F. Costello, Jr. (see all)

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John F. Costello, Jr.

John F. Costello, Jr.

During hours better reserved for billing time, John’s hobby is contemplating the future of the legal profession and what one person could possibly do to reduce the number of lawyer jokes in our society. The rest of the time, John is an attorney at the Locke Lord LLP Chicago office and focuses his practice on complex commercial litigation and federal and state regulatory compliance. Since he requires little sleep, John also teaches at The John Marshall Law School, assists legal aid clinics for veterans and service members, and tries to be a great husband and father.
John F. Costello, Jr.
John F. Costello, Jr.

Latest posts by John F. Costello, Jr. (see all)

One thought on “A Riddle for the Legal Profession?

  1. I posit that various “pro bono” programs, inclduing specifically mandatory “pro bono” for new applicants for admission, have combined with other factors to dimiish the profession. An abundance of free, sometimes mandated, legal services provide a disincentive for market forces to correct the current imbalance. To the extent the large firms’ “pro bono” activities are a part of their internal training programs for future partners, such programs are taking food off the tables of struggling young practitioners (and perhaps some not-so-young). The Bar Association referral services as well as informal referral networks have worked well for eons. Why are we as a profession grinding out thousands hours of free services when there are other practitioners available on a competitive fee-based basis? The market will take care of this. After all, “pro bono” is abbreviated from “pro bono publico”, for the good of the public, not for the good of the jackpot winner hooked up with a big firm to represent him/her. As to “afforability”, the market can take care of that as well. Let’s face it, fee competition is nothing new, and is accelerating faster than the schools can churn out new admittees. Furthermore, Legal Zoom and other sites or services should be given the same treatment as the bar gave to Norman Deacy’s “How to Avoid Probate” 60 years ago, and for the same reasons. Is this protectionist? It sure is, just liek the standards for admission are. We need to protect both the public and the profession, for the good of the public, and for the public good.

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