Vol. 40, No. 4

Of riverboats and uncharted seas: Professor William Henderson on the present and future of the profession

by Patrick Tandy

Law is not the first profession to find itself driven to tectonic change by forces external to itself, nor will it be the last. Today’s lawyers face unprecedented challenges in the form of existing and potential clientele whose expectations of a system few fully understand morph with the debut of each new online service touting lawyer ratings or low-cost legal documents.

And if they are to successfully weather these uncharted seas, suggests William Henderson, professor of law and Van Nolan faculty fellow at Indiana University Maurer School of Law, attorneys must first look within themselves, to their own origins.

“Public interest is why we exist,” Henderson said during the opening plenary of the 2016 Midyear Meeting of the National Conference of Bar Presidents in San Diego. “Personal interest is derivative of that.”

The program, called “The Legal Profession: Where are We?” focused on the effects of impending changes in the practice of law—many of them dictated by forces well outside the room, as it were—over the next 15 years. To illustrate his point, Henderson invoked a remarkably parallel tale as told by author Mark Twain in his 1883 memoir, Life on the Mississippi.

In the book, Twain, a former Mississippi steamboat pilot, recounts the explosion of trade along the river in the early 19th century, and how the increasing demand for pilots to navigate the river’s ever-changing twists and turns led to the formation of a professional guild, the Pilots’ Benevolent Association (PBA).

“It was the only form of mass transportation that we had [at that time]—very important, but also very, very dangerous,” said Henderson, noting that increased traffic brought a correlative spike in accidents. “You needed really skilled people to be able to pilot these large boats going up and down the Mississippi.”

Born of an interest in increasing safety standards, thereby reducing accidents resulting in substantial loss of life and property, the PBA, through years of push-and-pull collective bargaining with steamboat owners, transformed itself into what Twain called “perhaps the compactest, the completest, and the strongest commercial organization ever formed among men.”

Said Henderson, “The PBA became indestructible. They were the most powerful collective in the world. Nobody could take them down.”

That is, he continued, until external forces beyond their control redefined business as usual.

“They thought they were in the riverboat-steering business, but they were [really] in the transportation business,” Henderson added, “and lo and behold, the railroads come along, the Civil War, the disruption of practice. And the whole collective completely fell apart.

“So, this great collective that Mark Twain said was indestructible was, in fact, destroyed.”

Are lawyers still in the riverboat-steering business?

Indeed, after decades of “business as usual,” lawyers now face ever-evolving challenges at every turn of their careers—from nearly insurmountable student loan debt following graduation to a lean job market to an increasingly cost-aware clientele. Add to the mix the deepening pool of resources that cater to pro se litigants—from court-issued guidelines to vendors like RocketLawyer and LegalZoom providing low-priced legal documents directly to the consumer—and the steamboat pilots’ story grows more uncomfortably familiar.

“We are a profession—we are a guild,” Henderson acknowledged, “but I think we need to think about that in terms of our actual behavior or mindset—and about moving forward as a collective.” Noting that “a lot of things are happening outside our collective” and beyond its control, Henderson pointed to shifts “in the broader legal industry” that have occurred “without any rule changes whatsoever.” New innovations and expectations continue to diffuse throughout that broader legal industry “because clients, whether they are individuals or large corporate organizations, want them.”

Of course, coaxing everyone aboard that metaphorical train remains no small feat. One bar leader from the southeastern U.S. indicated during the plenary roundtable discussions that, particularly, many rural lawyers in his jurisdiction regard growing pro se efforts as “an effort to take over their livelihood.” And another bar president reiterated his profession’s deep-seated reputation for being “risk averse.”

“We’re so afraid of failing in anything,” this leader said, “that we don’t try most things.”

Bar associations in position of leadership

For example, one emerging business model that is gaining traction across the country is so-called limited scope representation, or the “unbundling” of legal services, wherein the client, in the interest of saving money, pays for only very specific legal services outlined in a mutually agreed upon contract prior to representation. Proponents of limited scope representation hope that, with more courts sanctioning the practice through formal rules, more lawyers will likewise view it as a viable option.

Henderson himself admitted that lawyers, by nature, “travel in packs. We’re always going to look for groups to decide our fate.” To this end, he said that bar associations can play “a huge role” in this evolutionary stage for the profession by “taking a position of leadership” and “articulating our better selves so that we can live up to those ideas” that have always made the practice of law more than a mere occupation.

Rocky waters ahead?

Henderson predicts that the next decade-and-a-half—“the active working professional life” remaining for many in the room—will be “rocky” for lawyers.

“The public interest is the only legitimate glue that will hold us together in the long term,” he said. “A lot is going to happen that I think will dramatically change the legal profession.” However, through adaptation and by adopting (even if not fully embracing) these market changes, he also foresees the next 15 years as a period that will “go down in the history books as a great time, and a time where we showed our better selves.”

Patrick Tandy

Patrick Tandy is director of communications at the Maryland State Bar Association.