A leadership role for bars
Whether they are integrated or voluntary, bars will also face challenges as the profession evolves. Balancing the needs of members and growing the organization, while also serving the public interest (which may include determining the best way to acknowledge and work with nonlawyers who are affiliated with the legal profession) will likely be chief among them, observers say.
“Some bars in their mission statement say that they serve and/or protect the public, foster access to justice, and the like. Some bars, in my opinion, operate much more like [they are] protecting the guild,” Reardon says. “Bar leaders need to figure out how to be leaders, and not just leaders of the status quo.”
As more citizens turn away from lawyers and toward online legal service providers—and often don’t turn back—the case that opening up MJP rules is anti-consumer is becoming weaker and weaker, according to Pera.
“We have an obligation to put consumer protection first,” Pera says. “To me, that’s not really very complicated, and it seems to me that every bar, every state bar, every integrated bar, every voluntary bar ought to have that as their goal because—in case you haven’t noticed—the market is broken. There’s a reason that regulatory reform is being talked about.”
But fear, adds Reardon, also continues to be a factor among many in the profession—and, by extension, bars—with concerns about lost business in an increasingly deregulated environment. John Lund, a past president of the Utah State Bar and co-chair of the Utah Work Group on Regulatory Reform, has seen and heard that fear directly.
While talking to rural Utah lawyers about the work group’s August 2019 final report that suggested the creation of a new “regulatory sandbox” to possibly ease rules of professional conduct to test concepts such as nonlawyer ownership of legal firms, Lund was told that such ideas could put lawyers out of business.
He has tried to reassure them, he says, by explaining that the proposed rules changes would occur in a limited testing environment. Data would be gathered to see if the changes were really beneficial to consumers―and if they weren't, they would not exit this pilot phase and be fully implemented.
“It’s a pretty controlled opening-up of the opportunity to explore different ways,” he says.
Ultimately, Lund and others say, it is incumbent on bars to work with their state courts and to work across state lines to help set the future course of the profession, rather than risk having it set by outside forces.
“The next 10 years will see very significant change,” Pera says. “Some of this will be driven by regulators like Utah, Arizona and Illinois. But they’re not the main drivers. The main driver here is the market, and it’s changing without regard to what the rules are.”
Minkoff says how the New York State Bar Association and the New York County Lawyers Association worked with the ABA and online legal document providers to create the ABA Best Practices Guidelines for Online Legal Document Providers (approved by the ABA House of Delegates in August 2019) is an example of how bars can provide leadership in addressing the inevitable changes in the profession.
“We need to talk about, how are we dealing with the fact that we’re in the 21st century, we have 21st century technology, and an 18th century structure for lawyer regulation?” he says. “We have to be the leaders, and we have to find a way to do it with declining membership and declining revenue because nobody else is going to do it.”
That idea, he adds, is not so extreme.