Setting a Course for the Future
What is over the horizon for the legal profession?
Will lawyers blithely sail over the brink into irrelevancy, as some
predict? Or can lawyers alter their course in time? Seize the Future
conference participants grappled with a future that promises nothing, if
not more change. Only one thing is certain: This isn't your father's law
practice.
by Ann Massie Nelson
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 Ann Massie Nelson is a writer, editor, member of the
State Bar of Wisconsin Communications Committee, and director of
communications at Wisconsin Lawyers Mutual Insurance Co., Madison.
Nelson writes about risk management for Wisconsin Lawyer. |
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A new epoch in the profession of law has dawned, according to
nationally recognized legal experts and futurists who addressed the
State Bar of Wisconsin's Seize the Future conference late last year.
Leaders of Wisconsin's legal community were invited to spend
one-and-a-half days considering trends that may forever transform the
practice of law. The speakers challenged participants to step back and
view their roles as lawyers and businesspeople in a future dominated by
global economics, competition, technology, and information-empowered
consumers.
A diorama of shifting needs and diverse players emerged. The subject
of the diorama - the traditional lawyer - appeared to be busy fishing in
placid waters, oblivious to the approaching tsunami.
Catching and keeping the trophy fish before someone else hooks it is
not the challenge facing lawyers, the participants learned. The real
challenge is how to remain in the contest without being swept overboard
by forces beyond their control.
No single picture of law practice in the 21st century was painted
during the conference. In fact, one thing was imminently clear: In the
future, people who earn law degrees will use their training in diverse
ways that will challenge all preconceptions about law practice. Law
schools, bar associations, and regulatory agencies will scramble to keep
up with a profession that has not seen this much change since Abraham
Lincoln rode the circuit in Illinois. In the days following the
conference, a group of participants proposed revolutionary changes in
the delivery and regulation of legal services, putting Wisconsin and its
progressive tradition in the vanguard of the debate over diversified
service entities. A resolution presented to the State Bar of Wisconsin
Board of Governors in January supports sharing fees and ownership
interests with other professionals in multidisciplinary practices (see
the accompanying resolution). The American Bar Association (ABA) House
of Delegates ultimately rejected similar proposals last year,
recommending instead that states enforce unauthorized practice of law
statutes. (The ABA Commission on Multidisciplinary Practice (MDP), after
years of study and debate, had recommended changes to the Rules of
Professional Conduct that would permit lawyers to practice within MDPs
but still preserve the core values and ethical mandates of the
profession.)
The proposed resolution reflects the position of many - but certainly
not all - of the lawyers in attendance. Conflicting and, often,
passionate opinions about the future of lawyering were shared, but there
was one maxim on which nearly everyone could agree: The status quo is no
longer an option.
No turning back
Lawyers are facing a "sea change" from which there is no turning
back, said keynote speaker Gary A. Munneke, a professor of law at Pace
University, White Plains, N.Y., and past chair of the ABA Law Practice
Management Section. Munneke set the stage for the conference by
predicting a radically different future for the legal profession.
"Monolithic, large, full-service law firms are totally anachronistic.
We will see the emergence of virtual firms where professionals will come
together for the sole purpose of solving a client's problem," Munneke
predicted. "There is a great future for individual lawyers who serve as
'infomediaries' and those who provide high-end, value-added services.
These are the lawyers who know what nobody else knows. Conversely, many
lawyers will be forced into routine, production work, where the price of
service will be so low it will be difficult to make a living."
Munneke also forecast that:
- Rapidly changing technology - including e-commerce, e-lawyering, and
the Internet - will level the playing field between large and small,
rural and urban law firms, and blur jurisdictional lines.
- Demographic changes - including global interdependency, a more
diverse population, and clients who desire more autonomy in their legal
affairs - will lead to more client-centered legal services.
- Law schools will need to break the conventional mold or risk
becoming obsolete as talented college graduates look to other
professional or graduate programs to prepare them for more rewarding
careers.
- More people will turn to alternative dispute resolution and
self-representation to resolve conflicts because they view lawyers as
obstacles to conciliatory outcomes.
The discussion that followed Munneke's opening remarks centered
around the perceived threats of multidisciplinary practice,
multijurisdictional practice (MJP), unauthorized practice of law (UPL),
and Internet piracy of traditional legal services. At the same time, an
optimistic view of 21st century lawyers as trusted advisers, information
brokers, and peacemakers emerged.
"Legal disputes are legion. Opportunities for lawyers are greater
than at any time in history. Whether we have the wherewithal to reach
those people and solve those problems is quite another question,"
Munneke said.
Seven principal themes threaded throughout the conference:
competition from other professions, self-reliant consumers, the changing
demands on the courts, client values, nontraditional roles for lawyers,
interdisciplinary education, and the need for regulatory reform. This
article summarizes the major themes and viewpoints presented during the
conference.
Accountants: Not Just for Taxes Anymore
Competition is slicing into the professional service business that
once was the sole province of lawyers, according to Charles F. Robinson,
a Clearwater, Fla., elder law attorney and frequent author and speaker
on the future of the legal profession. Accountants, bankers, tax
consultants, insurance agents, employee benefits administrators, and
real estate agents all provide legal information in the routine course
of business. For lawyers to suggest that these service providers are
engaging in the unauthorized practice of law would appear self-serving,
to say the least.
In the competition for the professional services market, the
accounting profession is poised to take the lead. Seeing its livelihood
threatened by software programs such as QuickBooks™ and
TurboTax™, the accounting profession set out to reinvent itself.
"The American Institute of Certified Public Accountants spent $20
million to find their target for new business - ours," Robinson
said.
The AICPA polled members and professional organizations nationwide to
identify the primary values, competencies, and services that distinguish
their profession. From the research, the organization issued a statement
that identifies the profession's core purpose as "making sense of a
changing and complex world" and positions its 330,000 members as "the
trusted professionals who enable people and organizations to shape their
future."
Auditing and tax preparation services provide accountants with
periodic, ready-made opportunities to market other professional services
to clients. Unfettered by lawyers' rules of professional conduct,
accounting firms now offer a broad range of value-added services that
afford clients convenient, seamless service.
"In Minnesota, accountants don't operate auditing companies. Auditing
firms are 'loss leaders' - subsidiaries that bring in business for other
service entities," said Phillip A. Cole, a Minneapolis lawyer and
frequent author on the subject of MDPs. "We no longer possess a monopoly
in the services we provide, outside of what you see in court."
Case in point: Accounting giant Arthur Andersen is now the largest
law firm outside the United States, with lawyers practicing in 35
countries worldwide, according to Harry Ruffalo, an attorney, CPA, and
recently retired partner with the firm. Ruffalo oversaw the creation of
AA's first law firm in Paris, where French law required tax be practiced
in the context of a law firm.
Now an adjunct professor at the U.W. Law School, Ruffalo told the
group that clients are looking for competence and interdisciplinary
approaches to problem solving. "Lawyers are trained to work as
individuals, but we need to work as a team. We can't know it all. We
have to collaborate with others who have the expertise," he said.
Competition from Within
Accountants aren't the only ones vying for a share of the
professional services pie. Lawyers also must compete with other lawyers.
Here's why:
- Lawyer supply exceeds demand, according to Robinson. Many new
lawyers are forced to accept low-paying commodities work or seek other
employment to make a living and repay college loans. The oversupply of
law school graduates is often cited as one reason why the public
perceives lawyers as ambulance chasers and hustlers willing to do
anything for a fee.
- Law firms with a mastery of technology are more productive, further
increasing the availability of legal services.
- Boutique law firms, many of them extraterritorial, draw business
away from Main Street law firms by proffering expertise for complex
civil matters.
- Trade associations give away bread-and-butter legal services to
their members, Robinson pointed out. Private practitioners are called in
only when it's time to pick up the pieces.
- Alternative dispute resolution siphons business away from
traditional litigation practices, according to some trial lawyers.
- The justice system is being forced to make the courts more
accessible to the growing number of pro se litigants.
"In Florida, nearly 80 percent of the cases in family court involve
at least one pro se party. The rules of civil procedure are gone,"
Robinson said.
Indeed, Gregg M. Herman, a Milwaukee family law practitioner and
conference participant, estimated that nearly 70 percent of family cases
in Milwaukee now involve litigants who represent themselves in court.
Herman's estimate is backed up by the Wisconsin
Supreme Court's pro se report.
The Pie Gets Smaller
Pro se representation is part of a larger trend toward
"disintermediation," which in simple terms means "out with the
middleman." Armed with more education and more access to information
than any time in history, consumers are finding their own way to
products and services they need, whenever and wherever they need
them.
Intermediary-based service businesses expected to be "toast" in the
near future include banks, travel agents, insurance, mortgage companies,
stock brokers, and lawyers - particularly litigators, Robinson reported.
Legal information and forms are readily available from more than 10,000
legal Web sites, such as www.SharkTank.com ("attorneys ready
to attack your case"), www.nolo.com
("Ask Auntie Nolo: commonsense wisdom for your personal legal
dilemmas"), and www.wtphq.com, the
We the People paralegal franchise that advertises "No lawyers! Save
money!"
Barron County Circuit Court Judge Edward R. Brunner said the legal
system already is inundated by people with a "Home Depot" do-it-yourself
mentality. "Lawyers are no longer the sole gatekeepers. People are more
educated and they believe they are competent. They view the legal
profession as providing only very adversarial, confrontational
approaches to their problems," Brunner said.
Even though they may be knowledgeable and well-informed,
unrepresented litigants still need help navigating the court system,
Brunner said. Many pro se litigants pay the filing fee and demand that
the courts - like other government agencies - help them exercise their
constitutional right to self-representation. By giving basic directions
and providing simpler forms to pro se litigants, are courts taking
business away from local practitioners?
"You've already lost it. That's the message," said Brunner. "The
legal profession has lost the public's trust. We have to find a way to
restore the public's trust and confidence."
A Waukesha County survey of pro se litigants found that one-fifth
represented themselves - not because they couldn't afford a lawyer - but
because they didn't trust lawyers and thought they could do better,
according to Chief Judge Kathryn W. Foster, Waukesha County Circuit
Court. The county opened a self-help legal services center in January to
assist divorce clients who choose to go it alone.
Private practitioners will find new business opportunities in helping
people help themselves, Foster predicted. "By 2010, the Milwaukee law
firm that recently opened and began advertising unbundled legal services
and Saturday self-help clinics will not be the exception," she noted.
(For more information, see "Going Pro Se" in the December
2000 Wisconsin Lawyer)
Many Cannot Afford Lawyers
While lawyers scrabble for business, the need for legal
representation for low- and middle-income people who cannot afford legal
representation continues to grow. "Litigation has become a sport for the
wealthy," Robinson said.
Judge Margaret J. Vergeront, Wisconsin District IV Court of Appeals,
told the group that lawyers should not lose sight of their
responsibilities as officers of the court. Because more business and
civil disputes are resolved elsewhere, the work of the courts has
changed. "The courts are not seeing cases where the bottom line is
money. The issues at stake have more to do with liberty, protection of
children, and constitutional rights," she said.
One of lawyers' core professional responsibilities is to serve the
under-represented, said Louise G. Trubek of the Center for Public
Representation Inc., and the U.W. Law School. Trubek recently conducted
a study of agencies that are providing multidisciplinary services to
low-income consumers and at-risk families.
"Consumer groups that spoke out in support of MDPs before the ABA
Commission were not acknowledged at all. We could distinguish Wisconsin
if we bring that issue into the debate," Trubek said.
What Clients Want
Winning back the public's trust will require more than a well-crafted
vision statement setting forth lawyers' core values and competencies.
Lawyers will need to take a seat on the other side of the desk and look
at the profession from the consumer's viewpoint, said Ann L.
MacNaughton, a lawyer-consultant who provides litigation risk
management, mediation, and settlement advisory services for the Peterson
Risk Consulting Practice of Navigant Consulting Inc., Houston,
Texas.
Throughout the conference, participants were asked to consider what
consumers value most. For example, clients value:
Choice. Clients are not interested in paternalistic
"lawyer knows best" platitudes. From their research, they are well aware
they have alternative paths to their goal. They seek professional
guidance to find their way through the multitudinous choices before
them. Clients want to choose the type and level of service that meets
their individual needs. A mediation client, for example, may want to
select among direct negotiation, assisted negotiation, or adjudication,
MacNaughton said.
Expertise. More empowered clients demand more
competency from their lawyers, MacNaughton said. Clients expect lawyers
and other professionals to bring a high degree of specialized knowledge
to the table. They are willing to pay for expertise they cannot find on
the Internet or at Barnes & Noble. Knowledge of legal precedent is
valued less than innovation and creativity.
"Business lawyers will need to be able to partner with accounting,
engineering, and other consulting businesses to provide a broader
platform of services," said Daniel J. Eastman, a Milwaukee lawyer,
business executive, and chair of the State Bar Business Law Section. "If
the law firm infrastructure isn't here, business won't be here. We need
to be able to provide sophisticated business advice if we want new-age
businesses to stay in Wisconsin and not migrate to Chicago, the Twin
Cities, or Silicon Valley."
No surprises. Clients want predictability. They want
to know what they're buying, when they can expect it, and how much it
will cost. Clients rarely expect something for nothing. They understand
that benefits - minus the cost of production - equal value. How do
clients determine the value of legal services when lawyers cannot tell
them the cost? How do clients measure benefits when lawyers are
unwilling to predict results? Half of the equation is missing; the other
half is unquantifiable.
"You're going to have to produce value before people start paying.
Clients don't want to hear a clock ticking," said Libby Hartman, a
panelist and director of change management, Cap Gemini Ernst &
Young, US, Seattle, Wash.
Cost-saving technology. Clients expect lawyers to
milk technology for all the productivity it's worth. Lawyers who balk at
using technology for communication, legal research, trial exhibits, and
basic administrative functions (calendaring, time and billing, document
assembly, and so on) will soon be eating the silicon dust of service
providers who have capitalized on technology.
"We can't go to a client without talking about life-changing
technology, including the Internet, data warehouse systems,
sophisticated decision-making models, and communication tools," Hartman
told the group.
Integrated services. Clients want new service models
that center around their needs, not law firm hierarchy or professional
rules. They don't want to hear, "I can't help you with that. You will
need to talk with an investment adviser." They want to tell their story
once, and in doing so, transfer the responsibility to shoulders they
believe are broader than their own. They don't want to shop around for
competent service or worry that they will neglect an important
detail.
When accountants refer clients to lawyers, they often accompany
clients to the law firm to act as their interpreter, leaving no question
about their place in the clients' inner circle. "Every lawyer ought to
want to be the trusted adviser who manages all the different matters of
concern to the client," MacNaughton said.
Dignity. Clients want to resolve disputes in ways
that preserve relationships and reputations. For example, as companies
merge and former adversaries become new confederates, business clients
want cooperative resolutions. Burn-and-raze tactics don't work in an
environment where "yesterday's competition is today's strategic
alliance," MacNaughton said. She cited a legal dispute in which the
client would have won in court, but not without creating bad blood
between the two companies. "Hundreds of millions of dollars in future
business were being blocked because of a $25 million damages suit," she
said. The marketing budget funded the settlement.
Peaceful resolutions are needed in personal disputes as well, said
Herman, a proponent of a new, collaborative divorce program. "Divorce
clients don't want to be dragged through litigation. When the lawyers
are gone, these people have a life together co-parenting their
children," he said. "We need to be zealously advocating for better
interests of all, rather than zealously fighting for the interests of
one."
Munneke noted the mandate for zealous advocacy no longer appears in
the Rules of Professional Conduct. "The 'mad dog' talk has been
relegated to the comments section," he said.
Integrity. Honesty, fairness, independent judgment,
and confidentiality are qualities lawyers believe separate them from
those who are not bound by a professional oath. If confidentiality and
independent judgment distinguish lawyers from the competition, why
doesn't the profession tout them? Do clients know that other professions
are not bound by the same rules? Probably not.
"We are not the only ones who can keep confidences," said John A.
Busch, a Milwaukee attorney who served on the State Bar's MDP Committee.
"We like to believe attorney-client privilege is a competitive
advantage. How many here have invoked attorney-client privilege in front
of a jury? It's like throwing a dead cat at a dinner table. You
lose."
Results. Bottom line: Clients want results. Whether
they find answers in a traditional law firm, a multidisciplinary
practice, or a virtual service entity consisting of the best of the best
advisers, clients want better, cheaper, and faster results.
Educating the Renaissance Lawyer
Reading the law will fall short of adequately preparing students for
the creative problem-solving expected of 21st century lawyers, Munneke
said. Forward-thinking students will challenge law schools to develop
curricula that draw upon many academic disciplines - for example,
economics, science, medicine, engineering, psychology - as well as
foundational courses in communication and technology.
In a survey of recent law school graduates and employers, the
respondents ranked effective written and oral communication and
computer-assisted research among the most-needed skills, reported
Carolyn Lazar Butler, director of Assessment 2000, U.W. Law School.
Ethics Rules: Pedestal or Millstone?
Discovering what clients want, delivering it, evaluating client
satisfaction, and improving the delivered goods in a continuous feedback
loop (what Hartman called customer relationship management) sounds like
commonsense business strategy. The catch is, the ethics rules weren't
written for people who want to practice law and free enterprise.
If the legal profession is to evolve and survive, the rules must
change, said State Bar President Gary L. Bakke. By the end of the
conference, the general consensus was that multijurisdictional practice
(at least for transactional law) is inevitable, and the enforcement of
unauthorized practice of law statutes will be limited to cases involving
consumer fraud.
One issue remained. How will the bar respond to multidisciplinary
practice?
The participants debated the MDP issue, in lawyerly manner, by
questioning some of the fundamental principles underlying the ethics
rules:
- Is the private practice of law a business or a profession?
- In the client-centered service model, are lawyers squandering their
professional judgment when they cater to client demands?
- Can lawyers maintain independence and confidentiality if they join
forces with others to deliver integrated, value-added service?
- Who will own and manage professional service entities?
- Are the ethics rules written for trial lawyers appropriate for the
remainder of the bar?
- What distinguishes law from other professions, if not the Rules of
Professional Conduct?
- How many lawyers will surrender their law licenses to become
consultants?
- Can lawyers hold fast to their professional values and still earn a
living?
On the Horizon
No one expected to answer the questions raised in less than 48 hours,
but there was some confluence of opinion. Six initiatives took form:
Confront the inevitability of change. "Look at two
contradictory examples for dealing with the future. Doctors and the
health care profession stuck their heads in the sand during the
discussion about managed care. They have virtually lost their
professional independence. CPAs, on the other hand, took an aggressive
stance on the future of their profession and delivered tools to help
members deal with the future," Munneke said.
Identify the core values and competencies of the
profession. "We don't need to spend $20 million. We need a
grassroots consensus on what our core competencies and values need to
be," said Robinson. "Join with other bars to engage in an AICPA-type
vision project for law practice."
Measure the value of service, not the cost of time.
"Nothing galls me more than when a client objects to my hourly rate,
then a consultant says 'we can do this for $64,000,' and the client
asks, 'Where do I sign?'" said Dennis J. Purtell, who practices health
care law in Milwaukee. "We should not forget that we are consultants. As
a profession, maybe we need to resurrect the concept of 'attorney and
counselor at law,' or 'attorney and barrister' for those folks who do
trial work, or 'attorney and scrivener' for those who do backroom,
commodity work. These people would earn money differently and market
themselves differently, based on the value of the service they
provide."
Encourage education reform. "If law schools can
shake off their Socratic legacy and build on new interdisciplinary
models, and if they can treat litigation as one alternative among many
problem-solving approaches, they will continue to remain relevant and
prosper," Munneke said.
Challenge the ethics rules. "We are never going to
reach a consensus on the rules. That's what makes our profession
vibrant," said Jeffrey J. Mawicke, a Milwaukee attorney. "Forget
consensus. How do we form a level playing field where we all can
play?"
Look for leadership. "I fear that we are on the
brink of Balkanizing the profession of law. We are going to have
different rules for different jurisdictions, state by state and practice
area by practice area," said Bakke. "We are in strong need of
leadership. Wisconsin cannot do it alone, but we have to do our
part."
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