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The San Juan River in Southern Utah winds through canyon walls of steep rock, formed of many layers formed over millions of years. The river is most famous for its goosenecks,
created as the water winds its way through the stone of least resistance. The river may travel a mile to go a hundred yards in straight-line distance. The San Juan River's
wearing process has created interesting features, one of which is the "perched meander."
Over the years, as the river cuts ever deeper, the water sometimes enters a lower strata of rock which is more or less resistant than the former river bed. The river cuts a
new, sometimes shorter path. An old meander is abandoned; cut off from the flow of water, and "perched" above the new lower river flow. It is a curiosity, seen from
the new bed river and the former river path is never traveled.
Lawyers, the court system and the system of laws - and bar associations - may be in danger of becoming a "perched meander." Tensions of the outside world, the society
where most people live, press upon our safe haven as lawyers, our profession, the system of laws and the courts. If we are too resistant, the fluid society around us will find
another path, and gravity will drive it to its destination, by another route. The response to pressures and the adaptation made - or the lack of it - will create a different
future for courts, lawyers and citizens - and for bar associations.
This article briefly mentions the particular points of stress and suggests alternative reactions to those tensions. Three of the many possible future scenarios that could arise
for the Utah State Bar will be proposed. In the future, any bar leaders' work will be insufficient without scanning the environment, charting a future, and learning the skills
of change management.
Points of Stress
The principal sources of stress for the courts, legal systems and lawyers are:
- Availability of information - information, the lawyer's stock in trade, is now readily available
- Transactional technology - transactional technology enables inquiry, response and solution without face-to-face contact.
- Irrelevance of geography - communications technology and uniformity of law, coupled with mobility of persons, has made state and national boundaries less relevant.
- Unavailability of legal services to most persons - the increasing cost of legal service has run away from the average consumer, making most lawyers irrelevant to the
public.
- Increasing complexity of society and processes - even routine processes need specialized advice, and every act has legal implications. This drives the demand for legal
service.
- Competition by other professionals - other professionals are encroaching on traditionally legal turf, without restraint as lawyers sit with hands tied by ethical rules
preventing inroads into new business forms.
- Blurring with other professionals - just as other professionals perform legal work, lawyers often perform work that is not the practice of law.
Three Scenarios for Bar Associations
There are three possible future roles for bar associations:
- Continued Status Quo;
- Administration of Litigators; or
- Overarching Administration of Legal Service Providers.
Status Quo
For many, the status quo is the most comfortable view of the future. In this view, lawyering continues to be a protected profession, and the bar similarly does not change. The
practice of law will be effectively confined to lawyers because legal protections will be upheld by courts and respected by legislatures. Non-lawyers would cease to make
inroads on traditional areas of legal practice such as appearance in administrative and judicial proceedings, estate planning, and business and compliance services. Lawyers
would withdraw from work which is not the practice of law, such as family counseling, business advising, and land use planning.
Critical to this scenario is the assumption that technological means for delivery of service do not further emerge. Technology can deliver information and transactions without
intervention of individuals, across state boundaries and at relatively low cost. This scenario requires that technology does not emerge as a means of delivery. Distrust of
technology for its complexity, unpredictability, lack of privacy, and impersonal nature may prevent any further internet or purchased software delivery of legal service.
Great assistance in maintaining status quo can be provided by the continued adoption of non-uniform laws in each state coupled with each state's resistance of federal
standards. Provincialism will isolate each bar association from its neighbors, and enhance the value of state-specific legal certification and service. States' rights trends
in the Supreme Court may assist in maintaining turf distinctions between states.
Effective enforcement of unauthorized practice statutes will also be essential to ensure the status quo continues. The blurring of professional lines could diminish as service
consumers realize that expertise ends at the boundaries of certification.
In this future which resembles the status quo, bar associations will be largely unaffected. State bars will continue to regulate all lawyers within a given jurisdiction. For
local bars, the status quo will be the most likely future if a closed political system is maintained. The value of a state bar will lie in the members' common local interest
distinct from outside interests. This "insider" quality can retain the relevance of geography and heighten the value added of a state bar association.
Administration of Litigators
Another potential future for bar associations would arise if Courts relinquish all regulation of professional services which occur outside state court. This may happen as the
traditional regulation of "officers of the court" is confined to those who actually appear in court. Pressures for this already exist.
Corporate or association counsel, and governmental employees and other lawyers who are employed in any situation not serving "retail clients" see little need for a
traditional bar association. Few of the detailed ethical criteria and CLE presentations apply to these attorneys. The common interest of these attorneys is be met more by a
section of a bar, or a specialty bar association, or even by a union.
Transactional lawyers see no relevance to state bar associations as most transactions occur across state lines. Regulation by a court in which they never appear seems
illegitimate. One state's regulation of visiting transactional lawyers may be viewed as unfriendly to interstate commerce.
Trends to fractured regulation of lawyers within a single geographic unit now emerge as federal courts adopt state-independent admissions criteria and liberal pro hac vice
practice rules which make state bar admission irrelevant. Administrative agencies establish specific minimal qualifications of professionals providing legal services within
their hearings and processes. The Arizona Supreme Court has recognized this "carving off" in its rules listing 14 areas of legal practice which it does not regulate.
Under this view of the future, bars would accept (or initiate) limits on the scope of their regulation. Other state licensing organizations may regulate non-litigators
(including legal service providers not graduated from law school) who provide legal services to public.
Integrated Bar associations (where membership is mandatory) would continue to function under court aegis providing discipline and admissions for state court litigators.
Voluntary organizations would emerge to provide CLE and member services to all professionals (litigators, non litigating law school graduates and non law school graduates)
providing legal services.
Overarching Administration of Legal Service Providers
Another possible scenario for the future is that the Bar may regulate all legal service providers, including nonlawyers and technological providers. This breadth of regulation
would be consistent with the traditional role assumed by courts, and with the express authority of constitutions consistent with Utah's Article VIII, Section 4:
The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.
Steps in this direction have been taken in several states. Washington has created a "limited practice license" permitting non-lawyers to handle real estate closings.
California permits non-lawyers to assist in immigration matters and act as document preparers. Virginia's UPL Ruling 183 permits non-lawyers, regulated by the Bar, to handle
real estate closings. ADR programs which involve non-lawyer providers as neutrals and participants exist entirely outside the court system. The response of the Utah State Bar
has been to admit non-lawyer neutrals to the Bar's ADR section. (And certainly, lawyers belong to ADR related associations which are not bar associations.)
The rationale for this broad role would not just be conceptual, but would recognize the need of all recipients of legal service for some measure of consumer protection.
Distinct admissions tests, ethical rules, discipline systems, could co-exist with amalgamated education and member services common to all regulated providers. This
stratification of providers would be consistent with the efforts of many bar associations to certify specialists. That certification already recognizes hierarchies of legal
service.
This stratification might be accelerated by movements toward nationalization of professional standards. Regional and national standardization of laws occurs to accommodate
business. Legislatures often relinquish their independence in the interest of facilitating uniformity. This in turn lowers the learning curve for specific areas of law,
enabling non-lawyer practice. Increase in non-lawyer practice drives the need for consumer protection and establishment of standards.
Personal Predictions
Of the scenarios above, the least likely is the status quo. External pressures will not abate, and the pace of social evolution will not slacken.
A variant of "status quo" may occur, however. If lawyers and bar associations remain insulated from society, they may each remain operative but in ever smaller
spheres of influence. Just as the bus lines still exist, but are a minor form of transportation compared to airlines, traditional lawyering may remain as a viable, though less
and less accessible profession.
My personal preference is that the bar administer the entire practice of law. I believe this is consistent with the Constitutional charge to our Court. What do you think?
E-mail me at president @utahbar.org.
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