JULY 2020 | ETHICS IN VIEW

Building on opportunities in the new legal landscape

by Teresa J. Schmid, JD, MBA, LP.D, CAE, ABA Center for Professional Responsibility

The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

Few 2020 law school graduates who do not already have a confirmed job offer can feel secure that legal employment will be readily obtainable when they enter the workforce. This is especially true when many legal employers are at risk themselves because of an economic downturn to which no discernable end is in sight. Many potential clients remain sheltered in place, and courts remain closed or virtually so. The post-COVID-19 legal practice will be in an environment no one will recognize. Different legal services will be in demand. Fully functioning courts will operate remotely and learn to conduct jury trials where every participant is in a different physical location.

But COVID-19 is neither the only, nor the most profound, change agent in the emerging legal environment. Rising anger over the impact of racial discrimination on the unequal distribution of wealth and opportunity implicitly demands that the legal system enforce individual rights.  As lawyer Bryan Stevenson notes, the opposite of poverty is not wealth; the opposite of poverty is justice. As constraints on evictions are lifted, employment benefits expire and governmental assistance to businesses diminishes, the pent-up demand for legal services will redefine the legal marketplace. For insights into how changes are developing, read the summary report of the Survey Regarding Legal Needs Arising from the COVID-19 Pandemic from the ABA Coronavirus (COVID-19) Task Force. Chaired by Legal Services Corporation president emeritus James Sandman, the task force is developing a considerable body of information and practice tools for lawyers bringing justice to the most oppressed victims of COVID-19. The task force’s work is truly an exercise in fighting poverty with justice. It also has lessons for lawyers whose practices have been displaced by the same forces that confront the legal services community.

Another source not usually considered as a practice-building opportunity is lawyer regulation. Lawyers often construe the rules of professional conduct as being no more than a litany of prohibited conduct and constraints on their ability to make a living. But like any well-drafted set of policies, the rules also describe optimal conduct — behaviors that are encouraged because they are best practices or are excepted from the prohibitions because the public can be adequately protected even as lawyers charge a reasonable fee for services.

Here are seven areas that lawyers need to pay attention to as they seek to start, rescue or maintain a viable practice in the post-COVID-19 world. 

  • Well-being. The lawyer is the engine of the practice. The single most important factor in navigating the unknown landscape of a post-COVID-19 practice is for lawyers to do realistic self-assessments of their mental, emotional and physical readiness to take on new and unfamiliar professional challenges. This is the time to create or renew a self-care regime. The ABA’s Commission on Lawyer Assistance Programs (CoLAP) has created a webpage, COVID-19 Mental Health Resources, specifically to address these pressures.
  • Racial justice. Model Rule 8.4(g), which prohibits harassment and discrimination in conduct related to the practice of law, is receiving heightened attention as racial justice emerges as one of the single most important issues in the post-COVID-19 legal landscape. All states have adopted some version of the rule, and now is the time to rediscover it. Guidance as to its meaning is readily available: Comment 3 to the rule clarifies what types of conduct constitute discrimination and harassment; comment 4 defines conduct related to the practice of law for purposes of the rule. Lawyers may approach it without fear of confusion as to its application. In addition, it also provides considerable information on what it allows. The black letter of the rule expressly notes that it does not prohibit the ability of a lawyer to accept, decline or withdraw from litigation in accordance with Rule 1.16. Comments 5 and 6 indicate what is allowed, including limiting a practice to underserved populations and charging and collecting a reasonable fee.
  • Competence.  Model Rule 1.1 and its comments offers one of the best roadmaps to successful practice, even when the lawyer is newly admitted or considers taking a case in an unfamiliar area of practice. It provides practical advice on how to achieve the rule’s chief requirements: legal knowledge and skill; thoroughness and preparation; retaining or contracting with other lawyers; and maintaining competence. Specific opportunities abound for building the capacity of a practice while ensuring competent service. A lawyer can refresh an existing knowledge base by taking ABA webinars (free to members) on latest developments; see ABA Groups and state and local bar sections for latest developments in practice areas. A lawyer can grow more marketable skills in litigation by learning to navigating post-COVID-19 changes in courts; the National Center for State Courts provides a list of state court websites that offer guidance for changes to filings, closings and virtual litigation.
  • Technology. While there is no need for lawyers to be technical gurus, basic technical competence is required by Rule 1.1 and is being redefined by rapid changes in technology, especially in virtual meeting platforms. Lawyers need to know how to maintain communications with clients (Model Rule 1.4) and to maintain confidentiality (Model Rule 1.6). On June 10, 2020, the ABA’s Center for Innovation, collaborating with Clio, a legal technology company, introduced a technical hotline to help members with technology. A collection of learning resources, COVID-19 trends in CLE, is also offered by the ABA free to members.
  • Legal incubators. Lawyers looking for new opportunities can rediscover legal incubators through the ABA’s Standing Committee on the Delivery of Legal Services, which explains what they are (profiles) and where they are (directory). A new lawyer could consider an incubator as a platform for starting a solo practice. The lawyer may start by reviewing the profiles of incubators in the lawyer’s jurisdiction, especially those featuring a “launch pad” or similar term. If they can’t find one, they can consider creating one with a local bar association or law school to serve local needs. See the article Exporting the Legal Incubator: A Conversation with Fred Rooney, 9 U Mass L Rev 108 (2014).
  • Lawyer referral. There are many variations among jurisdictions about what is considered an allowable source of referrals and lead generation. However, most have a rule corresponding to Model Rule 7.2(b)(2), which allows the use of certified lawyer referral services. Lawyer Referral Information Services (LRIS) are back in the spotlight with innovative fee and service delivery models.  Most programs list the panels for which they need new providers. Even if a lawyer is not an LRIS member, it is a good source of information as to where the demand for services is increasing in local jurisdictions.
  • Unbundling. Old ideas are new again. Limited-scope legal services (“unbundling”) are becoming more important as courts adapt to self-represented litigants, many of whom could afford limited-scope services. Jurisdictions vary widely in their acceptance of the concept, so research of the local rules is important. The ABA ethics opinion and the survey by the ABA Standing Committee on the Delivery of Legal Services offer more information. Also, see the related issue of how lawyers can serve the self-represented client.

No opportunities in a preferred area of practice? Lawyers can learn a related area or develop a new one. Check out the ABA Coronavirus (COVID-19) Task Force page for areas of growth in legal needs. While its focus is on services for the indigent, the resources also can lead to underserved areas where fee-generating work is available. For that matter, pro bono service often provides training and practice opportunities that develop new marketable skills. The task force also lists a host of resources that can support interim income-generating work in freelancing and providing contract legal services.

Opportunities can arise in any crisis. Far from being a death knell for lawyers, the aftermath of COVID-19 will be one of great demand for lawyers. What will be sobering is not whether enough legal work will exist but whether the profession will have enough practitioners to meet the demand. The hardest part will be the first step.  

Teresa J. Schmid is the director of the American Bar Association’s Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.   

The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.

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