Vol. 43, No. 1

NCBP panel addresses how the legal profession can serve more consumers, better

by Marilyn Cavicchia

Ed Walters, CEO of Fastcase, asked attendees at the 2018 Annual Meeting of the National Conference of Bar Presidents to imagine they were having dinner at a restaurant.

Lobster is one option, but the menu says it’s “market price.” You ask the server what the current market price is—and they say it’s uncertain and depends on many factors, such as the age of the lobster and how long it will take the chef to prepare it. You’ll find out how much you owe for the lobster once you get the bill.

In that scenario, Walters said, “Nobody will ever order the lobster if they have an alternative.” Instead, he continued, they might order the steak, even if it’s ultimately more expensive and not what they wanted—or they might even give up and prepare their own food.

As a profession, Walters believes, “We’re selling lobster.” That is, the billable hour plus an unwillingness to even estimate costs presents too much risk for today’s client—whether an individual or a business.

How can lawyers better serve the 80 percent of people with legal problems who are currently not receiving any services—even though, in many cases, they can afford to pay something for them? According to William Henderson, professor at Indiana University Maurer School of Law, it will take more than the small changes that many are now trying to make. “The platform is burning quite a bit,” he believes, and the entire model of legal services delivery must be rebuilt—and many current ethics rules are a big part of the problem.

What role can bar associations play in helping to serve consumers a decent “meal” at a price they can understand? Representing that point of view was John Phelps, CEO of the State Bar of Arizona, whose new Find A Lawyer platform helps connect individuals with lawyers at easy-to-understand pricing levels.

Rounding out the plenary panel was Illinois Supreme Court Justice Thomas L. Kilbride, who shared what the gaps in access to justice look like to those on the bench. The panel was moderated by Jayne Reardon, executive director of the Illinois Supreme Court Commission on Professionalism.

Just how big is the untapped legal market?

Currently, the U.S. legal services market is $437 billion, Walters said—and that doesn’t include the 80 percent of individuals whose legal needs are currently going unmet. Taking them into account as well, Walters believes the actual market is closer to $1 trillion. It is true that many of those individuals are indigent and in need of pro bono assistance, he said, but many others can afford to pay something—especially if the “something” is clear from the outset. For example, he said, many small business owners who are now doing everything via LegalZoom or other such services would be delighted to have legal help at a clear, fair price.

Phelps said that before Find A Lawyer debuted, many lawyers in Arizona assumed that most of the requests for legal help would be from pro bono clients. In fact, he said, 16 percent have been requests for pro bono, but the rest have indicated that they are able to pay something, with 21 percent choosing the mid-range, and 3 percent indicating that they can pay the highest fee In exchange for the most experience.

Transparency is key, Phelps said: “I think consumers are willing to pay, if they know what it is.”

People lose money going to the courtroom’

In his state, Illinois, Kilbride said, the median household income is $50,000—which makes him wonder how many of those households could afford an hourly legal rate of $200 to $400. In fact, he noted, research from the Federal Reserve Board, cited by the National Center for State Courts, found that 50 percent of those in the middle class would be unable to come up with $400 as an unbudgeted expense.

That means that if someone needed even one or two hours of legal assistance, they’d have to “either do nothing, sell something, or borrow money.”

And that’s true, he noted, even for many people in a lawyer’s inner circle: A lawyer friend of KIlbride’s told him that the lawyer’s secretary said she wouldn’t be able to afford the lawyer’s services.

“Pro bono, as important as that is, only puts a dent in the problem,” KIlbride said. He is pleased that a rule in Illinois says a judge has the authority to “facilitate” (that is, not to represent, but to assist) a pro se litigant through a case. He also praised the Chicago Bar Foundation’s initiative to have a trained person in the courthouse to help answer questions.

As useful as those services are, Kilbride agreed with Henderson that a lot of cases shouldn’t even come to court and could instead be solved via sophisticated online media tools that Henderson referred to as “pajama justice” (meaning that litigants don’t need to leave home).

Even if legal help is provided at low or no cost, KIlbride said, “People lose money going to the courtroom.” A litigant may have to take off work—and often, lose pay—arrange for child care, pay for parking, and deal with other associated expenses, he explained. And then, if their case can’t be heard that day or requires more time, they have to do all of that again.

Illinois is currently seeking proposals for the type of online mediation tool that Henderson described, Kilbride added.

Organizational law and people law

For decades, Henderson said, the profession has been roughly divided between lawyers who represent individuals and those that represent businesses and other organizations. In recent years, he added, the organizational side has taken off “like gangbusters,” while “people law” has declined significantly—which has helped bring about the boom in pro se litigants, DIY services, and contract lawyers who work as part of the “gig economy.”

Another major shift, Henderson added, is in the number of companies that no longer hire law firms, instead building such huge legal departments that they might as well be law firms themselves. Many corporations are so put off by the billable hour and are so eager to cut costs that they decide it’s a better deal to have their lawyers as paid staff, he explained.

And more and more, Henderson said, they’re not hiring associates with a few years’ experience. “They don’t want them to learn the wrong way in a law firm,” he explained. This is “an indictment” of how law firms operate, he believes, and a “huge warning flag”—a signal that the way law students are taught and new lawyers are trained is in need of a major overhaul.

Playing by the rules—or changing them?

One motivation for creating Find A Lawyer, Phelps said, was to create a “safe harbor” in which lawyers could compete with LegalZoom and Avvo without violating ethics rules against fee splitting and other business practices. Another was to tap into something that consumers were already trying to do: find a lawyer via the bar’s website, to the tune of 700,000 hits per year.

Regarding assistance with finding a lawyer, Phelps said, “That’s the one thing consumers in Arizona think the bar does—and that’s the one thing the State Bar of Arizona wasn’t doing.”

Though they expressed admiration for Find A Lawyer as a first step, both Walters and Henderson would like stakeholders in the legal profession to challenge and change certain ethics rules rather than trying to work within them.

The relatively new ABA Model Rule change that establishes a duty of technological competence is a good start, Walters believes, but more fundamental, sweeping change is needed. “If you just apply technology to existing processes, all that means is you’ll be doing the wrong things faster,” he said.

Henderson, too, thinks that certain ethics rules, including the one against nonlawyer ownership in a law firm, “are doing more harm than good.” As a matter of fact, he takes issue with the word “nonlawyer,” which he says is disrespectful toward allied professionals working in the legal field.

Think of the medical clinics that are now inside many drugstores, Walters said. If your child has a sore throat at 3:00 on a Friday, do you wait until Monday to see the pediatrician—or do you go to your local Minute Clinic, where a nurse practitioner (not a “nondoctor,” Walters noted) can perform a quick strep test? The pediatrician doesn’t even want to do a strep test, Walters said: There’s no money in such routine work—just as there’s plenty of legal “triage” work that could be performed by someone other than a lawyer.

To return to the restaurant analogy, Walters said, it’s as if a couple of food trucks suddenly appear, so you can walk over and get what you want—quickly and efficiently, and with prices clearly posted.

What Walters wants most is “urgency,” he said, and broad, nationwide attention on how to serve consumers better—including by changing some rules if necessary.

“It’s bigger than any of us,” he said, “but I’m convinced that it’s smaller than all of us.”