Oral testimony of John Skilton, August 1999 - Center for Professional Responsibility

Oral testimony of  John Skilton,

Chair of the ABA Standing Committee on the Delivery of Legal Services,

before the ABA Commission on Multidisciplinary Practice

August 8, 1999

John Skilton, Chair of the ABA Standing Committee on the Delivery of Legal Services, next spoke to the Commission. He offered a written submission from the Standing Committee written by Will Hornsby, its Staff Counsel. The charge of the Standing Committee is to look at delivery issues as they relate to low and moderate income citizens in this country. He commented that many of the Commission’s recommendations implicate delivery issues as they relate to other than Big Five accounting firms and Joanne Garvey, a Board Liaison to the Commission, has served on the Standing Committee as it has debated many of the issues with which the Commission is dealing. Although his tenure with the Committee has been roughly three, the Standing Committee has dealt with these problems for over ten years. In Tucson along with Joanne, he has debated the fundamental question of whether to simply ignore these issues and let them happen or bring them to the floor and recognize them and try to deal with them as a profession. He's not sure they agreed in the end as to what would be the best tactic. As he listened to the speakers today he agreed with most, in fact, all of them; that is part of the problem. He thinks the profession is literally gridlocked when it comes to considering and applying lawyer ethical codes to real life, actual problems. The Delivery Committee spends the better part of every two-day meeting discussing ethics issues as they relate to specific delivery mechanisms. He wanted to give the Commission some credit. He is with a large law firm and has been litigating for roughly 29 years, and while president of the State Bar of Wisconsin chose to concentrate on delivery issues as they relate to low income people. In studying the underpinnings of the problem it became clear to him that the profession is like a mule and the argument that more empirical evidence is needed is pushed in every context yet that evidence exists as the proverbial two by four. What does he mean? He suggests reading the 1994 ABA Legal Needs Study, not for its recommendations but for its facts. It demonstrates that the profession is literally losing clientele, they are walking away from lawyers as a profession. Core values, notwithstanding, one of the values is service to the public and being sure that legal services get delivered and get delivered by people who are best able to deliver them, that is, the lawyers. The pro se litigation phenomenon that is rampant in this country is empirical evidence, non-anecdotal, that the public is in fact speaking and lawyers must listen. Form sellers are everywhere - how should lawyers deal with that? And today’s world is dealing with internet delivery and the mechanisms that are associated with it. Lawyer’s ethical codes would prohibit as a delivery mechanism Wednesday at the bar hotline, a discrete information delivery system. It’s not the full service representation model, Model Rules 1.1 and 1.2, where all the facts are gleaned before advice is rendered as that’s not, of course, the way hotlines deliver. The Standing Committee went to Ethics 2000 with modest rule change proposals and the response to the proposals was tepid. When fundamentally fooling around with core values lawyers gridlock, but their rates increase, they extend billable hours to impossible limits and they price themselves out of delivery to consumers. Although the Standing Committee hasn’t studied MR. 5.4 it supports the Commission’s first two recommendations: 1) the profession should not permit existing rules to unnecessarily inhibit the development of new structures for the more effective delivery of services and better public access to the legal system, and 2) the profession should permit the sharing of legal fees with laypersons, subject to preservation of the core values of the legal profession. Lawyers all agree that core values are the essence of being a lawyer and they must be preserved. But lawyers must be able to identify in the Code outmoded paradigms, paradigms that are more fully related to the practice of law at the turn of the last, and not this, century. He thought the Commission had done a yeoman service to grapple with the reality of the marketplace, but most importantly the client’s reality.