For industry analyst Jordan Furlong, the legal market looks like an iceberg. Above water and highly visible is 15 percent of it: the individual clients, corporations and other entities that generate $260 billion in legal fees each year. But below the surface is 85 percent, a market not being served by lawyers, and Furlong wonders how much that market is worth and how to reach them.
Furlong was part of a panel discussion on “Chasing Change: Why Legal Practice Will Never Be the Same, and What It Means for You,” held at the ABA Annual Meeting in Boston and sponsored by the Standing Committee on Professionalism.
The panel—which also included Frederic S. Ury, chair of the Standing Committee on Professionalism; William Henderson, professor of law at Indiana University; Renee Knake, professor of law and co-founder of Reinvent the Law at Michigan State University; and Camille Nelson, dean of the Suffolk University Law School—agreed that the regulation and delivery of legal services serving only a small part of the public is not sustainable. The challenge is to adapt to the trends and market forces – including globalization, technology, shifting bar demographics and other inexorable forces – while maintaining professionalism and ethics.
Knake set the stage by saying the United States fails to provide affordable, accessible and widely adopted legal services to the people who need them. Seventy-five percent to 80 percent of Americans don’t access legal services. She said although the United States ranks very highly in the Rule of Law Index published by the World Justice Project in rights, fairness and absence of corruption, it ranks low on access.
Furlong cited a 2007 survey that showed that 88.3 percent of respondents did not obtain legal help when they had a judiciable issue. Although 22.2 percent did nothing about their issue, 22.1 percent got nonlegal help from such places as unions, the government, family and friends. The numbers show, said Furlong, that “we are not central to the implementation of legal solutions.” With so many people looking beyond lawyers, “self-representation is normalizing,” he said.
The profession, according to Knake, has failed at finding the customer and making her realize she needs and wants a lawyer. She said lawyers have a “delivery challenge” and that the delivery of services needs to change. In the 1970s, said Knake, experimentation with a new platform led to lawyers advertising, which came to be seen as a benefit to both the profession and consumers. In 2011 in England and Wales, the Legal Services Act, meant to increase competition and foster innovation in the consumer interest, became law. It has brought about different platforms, including legal kiosks in malls, as well as different funding structures, such as nonlawyer ownership of law firms.
Closer to home, Knake cited the $450 million in venture capital that has gone into online start-ups (including Avvo, Rocket Lawyer, Modus and LegalZoom) that are mining gaps in the delivery of legal services, which include lawyer ratings, discovery, contracts, forms, advice and alternative and online dispute resolution.
Henderson looked at the demographics and found that 2004 was the high-water mark for law firm employment. It has been declining since then, while employment in all other legal services areas has been rising. Making matters worse, in 2005, lawyers under the age of 35 made up just 13% of law firms.
The prospective of law schools in this period of transition was offered by Dean Nelson, who said there are fewer LSAT takers, fewer law students and less tuition coming in. She referred to lawyers as “traditionalists” and said the profession “needs to change faster than we are capable of changing.”
Although outside forces are bringing about change to the legal profession, “we as a profession have not changed from a structural point of view,” said Ury. To aid in the effort to look anew at the system from top to bottom, incoming ABA President William Hubbard has established the Commission on the Delivery of Legal Services, which hopes to have recommendations next year for House of Delegates consideration.