Saving a Doomed ProfessionToby Brown published a post on the 3 Geeks and a Law Blog entitled “The Profession is Doomed.” In his post, Brown recounts his recent experience participating on a panel “on the future of the profession” for the National Conference of Bar Presidents. Brown explains how bar associations work, or more precisely, avoid decision-making. He then details how one of the main activities at the Conference was an attempt by the participants to tear apart the Limited Licensure Legal Technicians program recently implement in Washington. I’m telling you this because I just got back from testifying before the ABA’s Commission on the Future of Legal Services and, after listening to the two and one-half hours of testimony including questions from the Commission, I can understand why Brown says we are doomed.

Another Bar Association Experience

To be fair, in some ways my experience was more inspiring than Brown’s, though ultimately it took me to the same place. A few of the individuals who testified were current or past bar association presidents. We also had some state supreme court justices, a few vendors of legal services, several individuals who chaired ABA groups focused on providing legal services to underserved populations, and a smattering of others.

My contribution was to encourage the ABA to undertake a transparent, fact-based process to determine whether to permit alternative business structures, to not presume the current regulatory approach barring ABS arrangements is correct, and to perform a cost-benefit analysis on any proposed regulatory structure. From the expressions of the faces of most of the Commissioners, I would say an observer who could see, but not hear, what was going on could be excused for thinking I had suggested all lawyers should be required to learn calculus before taking the bar exam.

All of the participants were, in my opinion, sincere and thought they were doing and suggesting things that would improve the delivery of legal services in America. Equally, all seemed oblivious to what they were actually saying and what someone listening in without the heavy bias of those in the room would conclude from what participants were saying. I’ll get to the obvious in a moment, but first a couple of stories.

One person testified on behalf of his state bar association that we should not allow any changes such as ABS arrangements or LLLT’s until all the lawyers in his state who are un-employed or under-employed are fully employed and not scraping by (which he defined as a salary under $65,000). Others testified that while they weren’t on board for LLLT’s, they probably could live with them if they had adequate lawyer supervision (somewhat defeating the idea of LLLT’s). We heard about several online programs that worked okay, but were not overwhelmingly successful because clients don’t know what problems they have unless they talk to a lawyer.

One person’s testimony deserves special note. She is a lawyer who left a corporate practice to take on representing low-income individuals. Her problem was not her legal service delivery model. Rather, it was connecting with the clients who could use her services. She recounted her efforts to work with every organization and society imaginable in her state, only to be turned away, re-directed, or simply rejected at each doorstep. We could hear her frustration. She was doing the right thing, but the byzantine regulations, bar phobias, and other biases were blocking her from being a for-profit, private practitioner providing legal services to individuals who could not afford more expensive attorneys.

Throughout the testimony, two themes ran clear: (1) we have lots of un-employed or under-employed lawyers, and (2) we have lots of people who are not getting legal services because of the cost.

Thinking Supply and Demand

Let’s recap: lots of lawyers needing work, lots of work not getting done because the cost is too high. How could we solve this vexing problem? Well, LegalZoom, Avvo, and Slater & Gordon all offered solutions that seemed to work, though the LegalZoom and Avvo approaches could be enhanced if we could just get past some of those vibes, such as “all lawyers must be fully employed and not scraping by” before we make changes.

From the “it’s obvious” standpoint, if we actually trained lawyers to deliver legal services efficiently, we could solve many of the problems without costly solutions, lots of software, or even major industry structural changes. (Note, I still think we should make many of the structural changes.)

But, to get back to Brown’s the “profession is doomed” point, the feeling I got from listening to most of those who testified was that the lawyers in the room were stuck on a racetrack. All they could do was continue circling the track, they couldn’t find a way off.

Be Leaders or Be Irrelevant

For some time, I have been telling audiences filled with lawyers that they have a choice. They can become leaders or they will become irrelevant. After his obviously depressing experience with the National Conference of Bar Presidents, Brown has at least temporarily thrown in the towel and concluded lawyers will become irrelevant.

I’m not quite there yet, but it is clear that unless more lawyers wake up, irrelevancy is the natural conclusion. The business graveyards are filled with organizations that did not accept change and adapt, and instead became irrelevant. There are plenty recent examples of companies that had huge leads but didn’t change and became irrelevant (e.g. Blackberry in PDAs, Motorola in phones). Lawyers continue to believe they are immune from market forces, despite all evidence to the contrary.

It is not too late for lawyers to salvage leadership. Whether the lawyers are in-house, in law firms, or in some other organization, to avoid irrelevancy they need to embrace the modern world. Legal services must be delivered efficiently, services must be priced based on value not effort, and compensation must reflect value delivered not time spent. Incremental movements on each of these issues will not suffice. At one time, long ago, lawyers were leaders in society. Today, entrepreneurs and technologists have replaced lawyers as society leaders. As much as these two groups have to offer, lawyers have more knowledge about how to make human societies function well. Marrying the talents of these and other groups will achieve better outcomes than excluding any group. However, lawyers must earn the right to be included, and change is the first step.

My recent experience pushes me toward believing Toby Brown is right. But, I’m too stubborn to go down without a fight. The question is whether we can find more lawyers who want to lead rather than be irrelevant, and who are willing to join the fight.