I’d like to borrow from Lewis Caroll and tell you a little nonsensical story about a serious subject, which is about how the ABA needs to undertake a wholesale change in the ethics rules; particularly RPC 5.4, which currently prohibits non-lawyers from ownership or investment in law firms. I hope you’ll see some characters from Lewis Carol’s stories like the dodo bird up in the tree, as I tell this tale.
Since law practice began in the United States, it’s been a self-regulated affair. A lot of the regulation was promulgated on the premise that it was going to protect clients but, of course, it was also protecting lawyers. As we all probably know, lawyers don’t like change. They don’t like to hear it, they don’t like to talk about it, and they don’t want to see it, particularly when it applies to the lawyer monopoly. I would suggest that this not a winning strategy for the future.
Lawyers are represented by state bar associations and they are regulated by those associations, along with state courts. The ABA (American Bar Association) does not have regulatory authority over attorneys, but it promulgates rules (model rules) that most states adopt and follow. We all know that there are various frightening fish in the water around our little island and the bar, instead of enforcing the rules (its own rules, such as prosecuting the unauthorized practice of law in a consistent and vigorous manner) or, better yet, engaging these fish in some productive manner, has decided to go fishing. The bar has caught a sea bass that represents fear, denial, and inertia.
The bar has chosen to take this fish and put it over its head and wander about doing its thing; in the hope that everything will turn out all right in the end. In the meantime, we’ve got these little scary fish, nibbling away at the island, not least of which are our clients who are not very happy. That’s what we know. You’ve got to make your clients happy because they pay the bills. Another fish represents the courts and the access to justice advocates. I hope everybody knows that you have to keep the judges happy. For instance, in my great State of Washington, our Supreme Court recently, on its own motion, created out of thin air an entirely new practitioner called a limited license legal technician. In the written order that brought this creature to life, the Court went out of its way to let all of us in the Washington State Bar know that it has absolutely no interest in protecting the monopoly status of attorneys.
With friends like that you don’t need a lot of enemies as a lawyer. But there are other scary fish in the water around our little island, including very smart non-lawyer entrepreneurs and accounting firms who’d like to muscle in on a $250 billion+ a year revenue generating profession/industry. We’ve got the foreign legal services firms like the UK who’ve already gone through some liberalization and I’m sure that there are some really smart firms in London that would like to take market share and steal talent from US firms. Then there are fed up US lawyers like me who have spent the past 20 something years of my career bootstrapping a very successful law firm. We’ve been able to dominate in our region; we’ve created a lot of different models and ways of doing things, which has made us very successful. And we are like a lot of companies at our stage, which means we need some capital and we need really great talent beyond just lawyers to help us grow out into a national market.
However, we have a bar that is not responsive or not responsible to its own members. It’s not living up to its social mandate, to be the vanguard of the legal system in the United States. But it doesn’t have to be that way; the bar can pull its head out of its bass. Right now, we have the ability to make our own rules. What I’m afraid of is that eventually we’re going to have something like the Legal Services Board and the chaos that, from my perspective, has descended on legal services in the UK, which I think could be great, but could be dangerous. If we can figure out how to bring all these interests together and make things better in law practice as a bar, we’re the change-makers, we’re the drivers of change; I would say, tongue-in-cheek, that we’ll all live happily ever after. The end.
This post relates to my June 2014 ReInvent Law Conference presentation at Westminster Law School in London entitled, Lawyers in Wonderland. The video is available here.