A Fool for a Client? A New Agenda for Our ProfessionJune 20, 2018
By Bob Glaves | CBF Executive Director
Part 1 A Fool for a Client?
So how do we do that? Along with the continuous improvement and adaptation that will be an integral part of any individual law practice, the bar, the courts and law schools need to adapt their roles as well.
In part 2 of this series, I identified four core roles lawyers play that remain critical for ensuring access to justice even in the age of emerging technologies: the diagnostic role, the counsel role, the advocate role, and the navigator role.
But just saying that obviously is not enough, as those services are effectively out of reach for most people who need or would benefit from them today. We not only need to incorporate technology and other less costly services for the legal work outside those four core roles, we also need to use technology and process improvement to make those core services more efficient, affordable and accessible.
This already is happening in some quarters, but not nearly to the scale necessary to meet the growing access to justice challenge. Below, in broad strokes, are the areas where the bar, the courts, and law schools need to double down or start focusing on today.
In addition, there are two challenges that all three stakeholders need to come together to address: rethinking our Rules of Professional Conduct, and leading by example in advocacy to adequately fund legal assistance for people who cannot afford it.
Along with the traditional legal education and CLE that helps us develop and hone the skills necessary to carry out those four core lawyer functions, we need new bar programming that focuses on issues most lawyers have had little or no exposure to in their formal training.
This new CLE agenda needs to emphasize issues like process mapping and process improvement, limited scope representation and other flexible practice models, customer service, and empathy and other so-called soft skills.
These skills are critical both for making our services more efficient and accessible and for identifying alternative solutions for those matters where our core lawyer functions are not necessary for the client to achieve a just result.
In his book Average is Over, Tyler Cowen posed a question: Are your skills a complement to the skills of a computer, or is the computer doing better without you? While our analysis needs to go beyond that query, it is not a bad way to start thinking about these issues and the ways our profession will need to adapt to ensure we are indeed a complement to technology.
Law Practice Management & Technology
Law practice management and technology is a broad topic but really comes down to helping lawyers to be as efficient and effective both in their business practices and in their use of new technologies in their practice.
The Chicago Bar Association’s Law Practice Management and Technology program is one of the best around and a great resource on these issues for lawyers in the Chicago area.
Other bars are starting to prioritize these issues as well, but it is still viewed by most bars and lawyers as largely optional programming. We need to shift our collective mindset to view these programs as central to being an effective lawyer in the new era.
New Pricing Models
Regular readers of this column are familiar with my opinions about the billable hour and the many problems it presents for access to justice. What has become apparent though is that most lawyers in private practice have received little or no formal training on other ways of pricing. And unless lawyers are in in practices where contingent fees or fixed fees already are the primary business model, the billable hour generally remains the default option in the market.
For these reasons, the CBF’s Justice Entrepreneurs Project (JEP) has made better pricing models (along with the other issues noted above) a core part of the JEP program and curriculum. It should have a central place in the bar agenda everywhere, because until our profession’s pricing better aligns with the value we are providing and rewards efficiency and timely resolution, people increasingly will go without our services even when they need them.
It is hardly news anymore that most people coming to court for civil cases today do not have lawyers. The courts here and throughout the country increasingly are recognizing the need to rethink the system as an access to justice imperative in light of this reality. That is a good thing.
It is not as well understood how critical these efforts are for making necessary legal services more affordable and accessible. Yet making the courts more user-friendly and accessible for unrepresented people is also an integral step for lawyers to maximize their efficiency and effectiveness. Just three examples:
First, expanding limited scope representation is a key way to make legal services more affordable and accessible by making it possible for the lawyer to help the client with key parts of the matter while allowing the client to handle other parts of the case on their own. While limited scope representation is not appropriate for every case or client, it can vastly expand the number of people getting the legal help they need in the many cases where it is a good option.
For limited scope to be most effective though, the courts need to do a lot more to make the system welcoming for clients handling the other parts of their case on their own. Coming to court should not be the complex, often inefficient, and at times terrifying experience it is for people today.
Maximizing the ability to do routine court business remotely through e-filing and remote access is another key step. This will allow lawyers to focus their services where a lawyer’s help will make the biggest impact.
Finally, we need to build on the recent momentum for creating standardized court forms so that these resources are available for all bread and butter areas of practice. Again, this will both make it easier for people to handle less complex matters or more routine parts of their cases on their own, and enable lawyers to provide the highest value services more affordably.
Law schools often get blamed for the fact that many lawyers today are not equipped with the skills necessary to succeed in the new era. But until the bar and the courts make this a greater priority and the market ultimately demands it law schools should not bear the full brunt of this criticism.
That is not to say law schools do not have a big role in this solution, and some have been leading the way by adapting their curriculums to prioritize the skills noted above. Here in Chicago, Chicago-Kent College of Law, Northwestern Law’s Center for Practice Engagement and Innovation and, more recently, the new national Institute for the Future of Law Practice are good examples of schools getting out in front of these issues.
It is the responsibility of the whole profession to make these changes, and law schools are an integral part in getting us there.
Modernizing the Rules of Professional Conduct
Part and parcel of homing in on our core functions as lawyers is to make it easier for lawyers to partner with other professionals on the many business, technology, and practice management and service delivery issues that fall outside of that core.
Our Rules of Professional Conduct are not set up well for that, drawing bright line delineations between lawyers and everyone else (or non-lawyers as it unfortunately and tellingly is phrased in the Rules and our traditional professional vernacular). Instead of trying to draw a moat around our profession, we should revisit the Rules to bring other businesses and professionals into the system in a responsible way that recognizes the integral role they increasingly will play in the larger access to justice solution.
The Illinois Attorney Registration and Disciplinary Commission recently released a report opening the doors to a broader discussion of that issue in Illinois, a positive step forward on this front.
Responsibly Advocating for Government Funding
Finally, we need to concentrate our efforts on making the case for adequate funding for legal aid, which currently falls well short of what is necessary. If we don’t take the lead in making that case, no one else is going to step up to do so.
To do that effectively though, we need to do a better job of walking the walk in making the justice system and our services as lawyers more efficient and accessible, in all of the ways noted above. That includes recognizing that for less complex or lower stakes matters, people should be able to handle those issues on their own with the assistance of self-help resources.
But for more complex and higher stakes issues, we need to be careful in our advocacy and messaging that the availability of self-help technology does not become an acceptable default option for access when it is not an effective solution for the client to get a fair and just result.
There are definitely some green shoots in our profession on all of the above fronts, but we’ve got a long way to go yet. The good news is that if we collectively follow these paths, we can make necessary legal assistance much more affordable and accessible for the large numbers of people who effectively are shut out of getting it today. This will go a long way toward making our legal system more fair, accessible and efficient for everyone.
In the last part of this series next month, I will explore another key question for ensuring access to justice how can we best help people facing legal issues assess when they realistically can do things on their own, when they need a lawyer, and how much lawyer they need to achieve a cost-effective and just outcome for their case?