At the ReInvent Law Laboratory’s London Conference in June, 2014, I presented an ignite talk on the current state of the legal profession’s regulatory status and its prospective future absent change. The talk was entitled, Lawyers in Wonderland, or Why the ABA Should Undertake a Wholesale Reformation of Model Lawyer Ethics Rules, and Specifically Rule 5.4, which Currently Prohibits Non-Lawyer Ownership or Investment in Law Firms. That presentation led to this blog, On the Future of Law.
My Mindset Going In
For too long lawyers and the legal profession have clung to the status quo. The profession’s resistance, or more often and worse, apathy, toward change is enabled and exacerbated by the current regulatory scheme that governs or fails to govern law practice. Whereas there is an accumulating mass of innovative/entrepreneurial energy building up around an apparent cosmic mandate to modernize legal services, it’s impeded from flowing in a natural and organic manner due to a completely outdated regulatory construct called The Rules of Professional Conduct.
I am not suggesting that ethics rules should be eliminated. There absolutely should be ethics rules that apply to any form of law practice or legal services delivery; but all regulation should be relevant to the needs of modern society, calibrated to realism, and acted upon only after honest, realistic consideration of both short and long term unintended consequences. Lawyers, judges, regulators, idealists, etc., often go into things with good intentions and end up with the same problems, plus unanticipated new ones.
Why so cautious? Let’s not lose sight of what we are talking about here – law practice and the provision of legal services are manifestations of a theoretical ideal which forms the essential foundation of our entire society, to wit: the rule of law. For obvious reasons, the tech industry’s “fail fast, fail often” mantra and the general “let’s disrupt and see what comes of it” approach is not appropriate in the context of innovation and change vis à vis the future of law.
As the Future of Law unfolds, all practicing lawyers and strategic legal entrepreneurs should be mindfully involved in architecting that future for four fundamental reasons.
1. Lawyers Know the Law.
First, lawyers know the law and know their clients, and most will welcome sensible change as long as it doesn’t assure their ruin. Lawyers must realize, however, that most meaningful change cannot be designed, financed, built, and implemented by lawyers alone. Likewise, non-lawyer entrepreneurs need experienced and insightful lawyers on the team. And, importantly, wise entrepreneurs should carefully consider the old adage, “be careful what you wish for.”
2. Lawyers Have a Financial Stake in the Game.
Second, lawyers have an interest in both the integrity of the profession, as well as their collective business and financial interests/responsibilities which are tied directly to the future of law. Lawyers should not feel self-conscious or guilty in either recognizing or vigorously asserting those interests, while at the same time facing facts: that either change will be made from within, or change will be imposed from without. No change is not an option.
3. Bar Associations and Courts Aren’t Looking Out for Lawyers.
Third, many people, including most lawyers, are under the dangerous misbelief that somehow state bar associations and regulating courts are looking after lawyers’ collective business and financial interests – nothing could be further from the truth. In some cases, bar associations and regulating courts are in fact doing the opposite, and from both sides of the extreme. Why? Because there is no mandate to protect lawyers per the bylaws or the legislation that created, for instance, the Washington State Bar Association (WSBA). Ultimately, nobody should be more interested and engaged in your future than you.
In reality, however, lawyers spend the vast majority of their time focused on their clients and not themselves or their businesses. And that is why bar associations (both locally and nationally) should be constituted as professional associations made up of members and representatives who look out for the collective interests of lawyers, including maintaining the integrity of law practice. Regulatory bodies should be separate and attend to the business of regulating, including maintaining the integrity of law practice.
4. Law Schools Should Produce Practice-Ready Lawyers
Despite the current fashion of devaluing the skills and knowledge needed for responsible and competent law practice, the practice of law is in fact an art, a distinguished profession, a sobering responsibility, and a privilege that should only be conferred upon those in society who are properly prepared in every way to shoulder the often times thankless weight and gravity that comes with it. Thus, law schools should prepare lawyers for their profession, which is not presently happening. The ABA, not to mention academia, should invest time and resources on reinventing law school education and accreditation standards.
How to Use this Blog
This blog is broken into three sections or categories. The first, “On the Future of Law” will include more robust, original articles. You can look forward to posts on the future or law, alternative business structures, legal ethics rules, comparative regulatory reform, multidisciplinary practices, and other topics and trends. I hope to engage guest bloggers on these subjects, as well.
The second category, “Opinions & Commentary,” is where you will find thoughts on and links to other articles relevant to this blog; curated content, if you will. Expect to find references to events, proposed rule changes, court decisions, and articles from other bloggers, educators, or experts on the future of law, along with my brief opinions and commentary as inspiration strikes.
The third category of the blog is called “Sights & Sounds.” This is where all multimedia will reside. I plan to post video of my various presentations, podcasts, and infographics that will give you a snapshot of what is going on in the legal industry. I hope you will find this section fun, entertaining, and thought provoking.
This blog is intended to be a forum with heavy user interaction. Therefore, your comments are both invited and welcome.