What the Bars Need

No, not more liquor – though that might help, too.

I’ve been talking with quite a few state bar leaders recently, and there’s a lot of angst out there: concern about the growing inability of consumers and small business to afford what the legal industry is selling. Concern about the rapid pace of change in communications technology, and how legal services are marketed and sold. And concern about the future of the legal profession in general, and whether it can propel itself forward in the face of these changes, and others (like the lowering quality of new entrants to the Bar, as a rapidly shrinking applicant pool competes for a near-record number of law school slots).

So what’s a bar to do? I can’t promise to have all of the answers, but here’s one answer I know is wrong: sticking one’s head in the sand, applying the industry-protective rules as broadly as possible, and protecting the legal monopoly at all costs. To do so is to defend a bygone notion of the profession that doesn’t fit with the realities of our modern bureaucratic state, developing technology – or the law.

I will develop these points much more fully in later work, but at a very high level, here’s my prescription for what the Bars need to do:

  •  Narrow What’s Included in the Legal Monopoly

The definition of “the practice of law” – all the work that is swept in within the monopoly enjoyed by lawyers – is hopelessly vague and overbroad. It’s practically begging for a challenge on both First Amendment and antitrust grounds. Rather than fight and lose those battles, the Bars would be better served (as would the public they ostensibly exist to protect) if they proactively got back to the core of the practice. That’s trial and other advocacy work, for the most part, and it’s where the benefits of legal training and experience are most relevant. Attorneys could, of course, offer other services in competition with non-lawyer providers, and many consumers would choose them for their training and experience. But there’s no benefit to the public in casting such a wide net that non-lawyers (many with substantial subject matter expertise) are excluded from offering advisory services on “legal” matters.

  • Shorten and Simplify the Advertising Rules

The Association of Professional Responsibility Lawyers (who know a thing or two about lawyer regulation) have persuasively argued for a simplification of the attorney advertising rules. As they point out, the current rules are outdated, overly broad, and often at odds with the First Amendment rights of lawyers to express themselves and consumers to get access to information about legal services. There’s little that’s special about lawyer advertising (with the possible exception of in-person solicitation) to merit the extensive, detailed regulations that too many lawyers labor under. Replacing them with a simple prohibition on false and misleading advertising – of the sort every other industry seems to deal with just fine – would greatly enhance the flow of information and new services for consumers.

  • Permit Sharing of Fees with Non-Lawyers

So many in the Bars hate this idea, but the prohibition on fee sharing is significantly holding us back. It keeps our practices from being able to get the full benefit of non-lawyer professionals, and it forecloses all sorts of innovative services that lawyers could provide in concert with business enterprises far more versed in marketing, operations, and customer support. The prohibition also rests on two extremely dubious assumptions: that our fellow lawyers are intrinsically above influencing our independent professional judgment over matters as trivial as mere money; and that at the same time we as lawyers are incapable of resisting such influence when it comes from non-lawyers. There’s no reason it couldn’t be done away with, tomorrow, and replaced with flexible rules that permit sharing but censure any form of professional interference that might result.

There’s work to be done, to be sure, to make sure that regulatory changes such as I’m proposing don’t leave a consumer-harming vacuum in their wake. But we’ve enough experience with other industries to know that there are myriad ways to protect the public short of the byzantine, rigid accretion of rules we’ve allowed to build up over the last century or more. It’s time to take these changes seriously, rather than persisting – as we as a profession have done for far too long – with business as usual.

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