Oral Remarks of Charles F. Robinson - Center for Professional Responsibility

Oral Remarks of Charles F. Robinson,

Solo Practitioner, Clearwater, Florida

Charles F. Robinson, former Chair of the ABA Law Practice Management Section and a solo practitioner from Clearwater, Florida, next spoke to the Commission. He appointed that Section's first futurist committee 11 years ago and 2 years ago was involved in its Seize the Future program, co-sponsored by Lotus, on October 30 to November 1, 1997 in Phoenix.  Having found most legal literature nostalgic and not helpful he tends to draw his thinking about the future from the business literature. He would zero base the 21st century legal practice to identify new skills and redesign processes. He cited to the October 1, 1996 study of the Quebec Bar Association that found change to be rampant in the population, economy and environment of the legal profession and its questioning of whether lawyers will face up to the change and adjust their law practices accordingly.  In addition to its inescapable hypotheses the Quebec Bar came up with 3 scenarios for the future: 1) the status quo, let things evolve the way they are, 2) the Albanian approach, limit the supply side of legal services, aggressive UPL enforcement. He digressed in identifying UPL as a dead duck in Florida, as he doesn't think UPL enforcement exists at any rational level there. For instance, an insurance salesman trying to sell annuities, who doesn't know much about living trusts, will be enjoined from UPL while a CPA or actuary preparing pension and profit sharing plans has been found not to be engaging in the unauthorized practice of law. "So go figure where the line can be drawn." He found the 'law-related services' of MR 5.7 to be one of the great circular definitions as these services if performed by a nonlawyer would not be UPL, yet 95-97% of what he does falls into this category. So a bright line attempting to demarcate the area of exclusivity where the practice of law really is may serve as a Maginot Line where "as soon as it's flanked, we're lost." At the 1998 Toronto Annual Meeting he was on the program called The Ends of the Profession with Roberta Katz of the Commission and Frank Feather, a futurist, that asked, 'what does unprecedented change - in a time of revolutionary change - imply for a precedent oriented profession?' He believes that multidisciplinary practice is probably the ABA's most important work and that what the Commission produces is incredibly important. The 3rd scenario is the Singapore approach. Instead of looking backwards the profession looks forward to identify the skills lawyers must bring to the table to serve the public in the way the public should be served in the 21st century. 'We are in discontinuous times' where precedent doesn't mean anything, where precedent is the profession's enemy instead of its friend. Lawyers should study the trends and start formally envisioning the future much as the CPAs have done with their $20 million Vision Project. CPAs have determined that the only constant is change at an unprecedented pace, that they must move up the economic value chain, that the public interest must be protected, that they must leverage diversity of experience and thoughts, and they must decide whether their profession comprises leaders or followers. Looking out 10 to 15  years the legal profession should make those same kind of calls - it should take a world view of political, economic, social, technological and regulatory forces. He referred the Commission to the '97 Seize the Future   website <futurelaw.com> where the approximately 450 implications of multidisciplinary practice fleshed out by the conference participants, as facilitated by futurist Joel Barker using his Implications Wheel, can be found. In November 1999 at the Seize the Future II conference there will be a minimal number of lawyers speaking as it is thought that lawyers don't understand their future as well as do others who look at lawyers from the outside. Tom Peters will lead off that conference. Mr. Robinson has synthesized 11 critical skills lawyers need to master for the 21st century: 1) ability to change, 2) planning skills, 3) thinking skills, 4) technology skills, 5) marketing skills, 6) management skills, 7) leadership skills, 8) visioning skills, 9) creativity, 10) innovation, and 11) substantive knowledge skills. Society has moved from being producer driven to being consumer driven. He referenced Jennifer James, author of Thinking in the Future Tense, who says professionals tend to have what she calls 'lodge mentality' where they become nostalgic for the past, entrench and try to prevent change from happening. She asks who among the health care providers 10 years ago did not know that the delivery system was going to change dramatically and how many proposals came from the American Medical Association - none. Given the possibility  of determining their own future the doctors did nothing -is that reprise now the plight of the lawyers?  This is the reason Mr. Robinson thinks the Commission's mission is so desperately important to the profession. The Commission's recommendations should 1) eliminate ethical constraints that prevent ethical lawyers from full  competition with other service providers, 2) allow consumers to determine how much regulation is needed in the areas of conflict of interest, multidisciplinary practice ownership and solicitation, 3) zero-base the ethics rules and center them around personal integrity and 4) ask that the ABA President appoint a commission with money and continuity to study the future of legal practice, to teach it how to learn and thrive in the next century and to make recommendations. He wants the legal profession to go into the 21st century like a cavalry charge, not riding a dead horse.  Professor Daly asked Mr. Robinson to imagine the future, a future without the ethics rules, and to tell the Commission what his law firm would look like and whether it really would be delivering legal services or professional services of which one element is legal advice. His would still be a large solo law firm but he would want a multidisciplinary virtual team (i.e., CPA, financial planner) to deal with client elder law issues and present one bill. If he decided to build a firm it would be multidisciplinary and include accounting and also likely financial management. He would also consider folding his practice into a CPA firm and, as a partner, building its elder care assurance area. When Professor Haddon questioned how the profession is to know what the consumer wants he pointed to the '86 Stanley Commission Report as presenting a patronizing, 'we know what's best for you' attitude and said that consumers have a right to know and say what's best for them and that the profession needs to figure out how to listen to consumers at all levels. He offered as a Platinum Rule, 'do unto others as they want to be done unto.' The ABA's role would be to assist in locating the constituencies in the public, finding how lawyers could best help them and thereby amplifying the issues for which people would like to use lawyers. In order to model a positive future the legal profession needs to develop a skills list. He conceded to Judge Friedman that aspirational guidelines (as advocated in his written submission) and personal integrity may not be sufficient and that some rules, possibly fewer and different, may be needed. He confirmed to Steve Nelson that the ethics rules  should be adjusted in order to respond to market demand and questioned whether lawyer licensure and ethics were adequately protecting the public.  Instead of punishing, the organized bar should be providing more leadership. It should also be looking at how the small practitioner can deliver multidisciplinary services and allow a lawyer advisory role, beyond being a stationery store [forms production]. He would use the Committee on the Future of the Practice to look at the ethics rules. Core values would be zero-based and reconstructed but need to include competency and conflicts of interest avoidance (to preserve meaningful client waiver) and confidentiality;  solicitation rules should be eliminated. He thinks the bar should help lawyers in their practice by providing a methodology rather than telling them what their values are. Methodology would help the profession better articulate to the public the 'what's special' that lawyers bring to the table.