Vol. 39, No. 4

Which way forward?: National Conference of Bar Presidents discusses possible futures for the profession and for bar associations

by Marilyn Cavicchia

At its 2015 Midyear Meeting in Houston, the National Conference of Bar Presidents held what it called a “futures conference”—not just a “future” one.

Moderator Frederic S. Ury and panelists Toby Brown, Gregory W. Coleman, Paula Littlewood, and Judy Perry Martinez helped attendees make sense of changes both inside and outside the legal profession and begin to think about how to create the best future possible.

It was a discussion that many attendees likely found both interesting and difficult, given that many of the possibilities that came up involve sweeping changes to the profession, and, as Brown said, “Lawyers like change to occur around them and not to them.”

More than just alternative fee arrangements

As chief practice officer at Akin Gump Strauss Hauer & Feld LLP in Houston, Brown feels as if, in the eyes of the lawyers he works with, he’s “the tip of the sword of change.” In fact, when a partner at his firm calls because a client has asked for a fixed fee or other alternative arrangement, Brown often hears “a tinge of fear in their voice.” What could help lessen that fear? Brown, who used to work for the Utah State Bar, believes bar associations should offer CLE programs covering alternative fee arrangements.  

Many times, Brown said, after talking to the partner—and, in some cases, to the client—it’s clear that at the heart of the request for a fixed fee is anxiety over the unpredictability of legal pricing, particularly when corporate business units demand more and more clarity. Equally helpful to the client, then—and less terrifying for the partner—is to offer a quarterly projection rather than a fixed fee.

Alternative billing is just one small part of a larger reorganizing that Brown believes needs to occur. He identified the following tools as being important to the future of the profession:

  • Alternative staffing. The current model for most firms is an “up or out” mindset, where every lawyer is tacitly expected to either make partner or leave, Brown said, adding, “I think that’s crazy.” Law firms should add a nonpartner, professional track to retain great lawyers who nonetheless aren’t cut out to be partners—or just don’t want to be.
  • Project management.
  • Practice innovation through technology.
  • Partnering with alternative providers, such as Axiom Law, rather than fighting them.
  • Legal process improvement. This involves fixing the way in which legal services are delivered, including the amount of time it takes to complete each task. This tool is lagging a bit behind the others in its development, Brown said, but there’s been “a wave of interest lately.”

Several interrelated factors at play

Coleman, president of The Florida Bar, echoed Brown’s assessment that the legal profession and the organized bar should be working on many fronts rather than just one. In fact, when the bar began Vision 2016, a three-year effort to look at changes in the legal landscape and possibilities for the future, it was thinking of four different “silos”: legal education, technology, bar admissions, and access to legal services. But the four different components are so interrelated, Coleman said, that it’s really “one silo, with four ingredients just churning around.”

Regarding one of those four ingredients, Coleman didn’t mince words: “Legal education is broken.” One key reason for that, he said, involves bar admissions. Florida’s law schools are trying to develop the innovative clinics, externships, and other forms of experiential learning that many experts say are needed. But there are empty seats in those clinics and other programs.

Why?

The Florida bar exam tests 28 different areas of substantive law, Coleman explained. This causes law students to bypass clinics in favor of classes in, say, juvenile law, even if these are areas in which they have no intention to practice.

As for technology, Coleman said this is a big driver of change and disruption. Much as Uber has disrupted the cab industry in a way that concerns many cabdrivers but that many consumers love, Coleman said, the same may be true of vendors like LegalZoom, RocketLawyer, and Avvo—which changed from its original lawyer rating model to a service that matches clients and lawyers for 15-minute consultations.

Are the rules too restrictive?

The Vision 2016 Commission is now halfway through its charge, Coleman said, and a major milestone took place about two weeks before Midyear: “For the first time ever, the [Florida] Supreme Court came and listened to the [Florida Bar] Board of Governors.”

Up for discussion at that watershed meeting? The rules of professional conduct in Florida, which have long been known as some of the most restrictive in the country. In fact, Coleman said, RocketLawyer recently opted to consider partnering with the ABA to serve the $45 billion market that is the underserved middle class, bypassing Florida because it was too strict.

Five out of the seven state Supreme Court justices attended the meeting with The Florida Bar's Board of Governors, Coleman said, and one of them indicated that he had no idea that the state’s practice rules were creating a difficult climate for both lawyers and consumers.

It’s not just Florida, Brown noted; in general, he said, “The rules are crazy.” For example, he recently received a ruling that his job title is unethical because it has the word “officer” in it. When they were first instituted, Brown added, the rules did protect consumers. But times have changed, he believes, and  the rules have not kept up—which means they’re now “inhibiting innovation.”

Martinez, too, recommended discussiing these matters with members of the judicial branch and other stakeholders; the ABA Commission on the Future of Legal Services, which she chairs, met with a committee from the Conference of Chief Justices shortly before Midyear. The ABA Commission has also met with representatives from the United States Department of Justice, Martinez added. This May, the Commission will hold a national summit that will include leaders from inside and outside the legal profession, and it continues to convene grassroots meetings across the country.

One attendee urged his fellow bar leaders to connect with their justices right away. “We will lose a couple of years,” he said, “if we do not engage the court now.”

‘Nothing is off the table’

The purpose of this ABA Commission, Martinez said, is to study and absorb everything it can about changes in the legal landscape and how best to serve the public in this changed environment—which, she said, will ultimately lead to opportunities for lawyers, as well. The Commission is looking not just at what’s out there now, in terms of legal service delivery, but also at what else could be, Martinez said, adding that its biggest job is to not exclude any thought or idea—including fundamental changes in a lawyer’s role and in the rules that govern lawyers and other legal providers.

“Nothing is off the table,” she stressed, adding that if the Commission failed to examine ideas that seemed too radical, “We would not be taking the leadership role that’s needed to shape the legal profession in this country.”

And if bar associations don’t take that role, someone else will, said Littlewood, executive director of the Washington State Bar Association. When consumers in the United Kingdom got “fed up” over similar access issues, the result was the Legal Services Act 2007, which, Littlewood said, meant that “almost overnight, the legal profession lost self-regulation.”

The latest from Washington State

The mismatch between consumers’ legal needs and lawyers’ ability or willingness to meet them under current delivery models—even though the bar does have a robust moderate means panel—is also what caused the Washington State Supreme Court to require the creation of the limited license legal technician designation, Littlewood said.

As explained in previous Bar Leader articles, earning an LLLT designation involves a combination of community college and law school classes in a particular area of law, 3,000 hours of supervised practice, malpractice insurance, and three different bar exams. The first group of LLLTs will be licensed this May, in family law, Littlewood said.

Rather than necessarily being a threat to lawyers, who often don’t wish to take on the kind of low-paying work that an LLLT is equipped to handle, the LLLT designation can actually help bring new clients to a law firm or lawyer, Littlewood said. One of the rules governing LLLTs is that they must refer a client to a lawyer once they realize that a client’s needs have reached the limits of their scope, she explained. Law firms have been coming to the bar to ask how they can get their paralegals licensed as LLLTs, Littlewood added.

One might expect the executive director of the state bar to have deep reservations toward licensing nonlawyers to do limited-scope legal work. But Littlewood believes that the unmet legal needs of those of moderate means are so deep and so chronic that some action was bound to be taken, and it’s better to be in the position of deciding what to give over and what to retain.

“There is more control in letting go,” she said, and when one is on the front lines of such a drastic change, “It actually becomes a pretty exciting place to be.”

Littlewood likened what is happening now in the legal profession to what happened 40 years ago in another field, when Congress told the medical profession that it was not serving the public’s best interests by protecting its turf. It used to be, she said, that only a doctor could draw a patient’s blood. Now, she added, if a doctor came in to draw your blood, you’d probably ask for a nurse who draws blood all day long.

Similarly, she said, “We’ve convinced ourselves and the consuming public that only a lawyer can do this work.”

In the future, she believes, law schools, courts, and bar associations will be educating, regulating, and assisting not lawyers exclusively but the “legal services delivery market.” Lawyers will always be the cornerstone of that market, she predicted, but there will be other types of providers.

Discomfort, and a call to action

As might be expected, there was considerable dissent and tension in the room, as well as questions regarding whether the bar association serves lawyers, the public, or both—and if there’s a line where one priority begins to infringe on another. Panelists expressed some understanding of these concerns, and of the feeling that unemployed or underemployed lawyers could be called on to fill these service gaps, but nonetheless insisted that major changes should be contemplated and may be required.

Even $30 an hour for a lawyer is not low enough for many whose needs are currently unmet, Coleman said, so it is unlikely that unemployed or underemployed lawyers carrying heavy debt loads would be able to fill all the holes.

“What we need to do,” he said, “is stop being so protectionist and start looking at the system.” It’s not necessarily something he relishes, he noted, but it would be impossible now to “put it all back in the can”—so it’s much better to take out all the internal and external factors, fully examine them, and figure out what to do.

A key next step for NCBP members who attended this plenary, Ury said, would be to go back to their bar associations and get the leaders who are next in line interested in this topic so that NCBP and other stakeholders aren’t caught in a cycle of having to rehash it every two or three years for an audience to which it is completely new.

“The pace of change is going faster and faster,” Ury said, noting that the real game changer will be when Legal Zoom and RocketLawyer add artificial intelligence—which he said is only a matter of time.

As for the profession and for legal services overall, Martinez said, “It will not get where it needs to go, at the pace it needs to get there, without all of you helping. Everybody has a stake in this, and everyone has to help.”