The Legal Profession Today and Into the Future

Bar President Lori NelsonI recently attended a conference that seemed to imply that the sky was falling regarding law practice as we know it. The message was that lawyers and firms need to plan and adapt or fail. Every generation of attorneys has been confronted with change. We are no different. Lawyers have always risen to the challenge, and I am pleased to note that many of the changes recommended by other presenters, and presented below have already been adopted by Utah firms, law schools, and the courts. Based on the theory that knowledge is power, I thought I would share with you the thoughts of Frederic S. Ury and Thomas Lyons, who posited that there are five major trends impacting the practice of law: Globalization; Technology; Nature of clients; Demographics; and Legal education.

Globalization

Ury and Lyons informed us that over one million lawyers in India are willing to work for much less than American attorneys, causing basic research and writing projects to be shipped overseas instead of being performed in-house by associates. This trend is changing because of the glut of American attorneys who are out of work. One aspect of globalization is the General Agreement on Trade in Services (GATS). Legal services are part of GATS. Because of this, American firms are being pressured to change and allow things such as non-lawyer ownership of law firms. Australia has two publicly traded law firms. The UK allows passive non-lawyer investment in firms. The ABA had before it, but did not consider, as part of Ethics 20/20, a change to the Rules of Professional Conduct that would allow American firms to have partial ownership by non-lawyers. Globalization is likely going to impact our practices. Knowing that gives us the chance to prepare for the upcoming change and decide in advance what we want to be as lawyers and law firms.

Technology

More than any single factor, technology has changed the practice of law. Now, small firms have the same access to legal resources as large firms. More importantly, clients have access to the same legal resources. As Ury and Lyons posit, “E-law firms, combined with outsourcing and co-sourcing, can build a nationwide network of law firms.” This raises issues of confidentiality, conflicts of interest, and competence. Many freshly minted lawyers are now beginning e-law firms and avoiding the mentoring previously available to associates who work in firms. This makes strict compliance with our mentoring program essential to ensure that all new attorneys are given the necessary skills and professionalism to serve the public competently.

Nature of Clients

The new personality of clients is changing. Most younger clients grew up using the internet. There is substantial legal information available on the internet to address client’s questions without having to ask an attorney. There are many websites offering forms for clients: LegalZoom, Docracy, Paperlex, etc. The problem is that these form based websites allow clients to believe they solve problems when, in fact, they may be creating them. One thing we can do is work on improving our websites to allow

clients access to basic information that will guide them to an attorney. This allows clients to do part of the work themselves but then turn to an attorney to provide the critical advice necessary, refining the legal work and separating it from what clients may view as merely document drafting. This adds value to the final product and perfects the collaborative process between client and attorney to ensure the client’s needs are truly being met and the lawyer’s skills are being maximized.

Demographics

Client demographics are also changing: in the 1960s 45% of the clients were corporate and 55% were individuals. Now, 64% are corporate and 29% are individuals. Corporations, which traditionally paid more, are now becoming more cost oriented. Corporations are becoming less willing to pay high hourly rates to train brand-new associates. The result is that more and more firms are hiring laterally instead of hiring law students. This allows the rates to remain constant and the work to be performed at what corporations believe to be a higher level.

Law firms are increasingly being asked to move away from the billable hour and charge by the job or result. Younger lawyers are also more mobile than lawyers of previous generations. Ury and Thomas stated that “Today’s graduates will hold 10–14 jobs by their 38th birthday.” More importantly, the statistics indicate that there is an aging lawyer population. The majority of lawyers nationally are 35 years old or older. The 25–29 age group is shrinking fast. This is the result of several factors, including graduates working in careers other than the law, leaving the practice because of dissatisfaction, and a reduced number of law school applications. The issue that will have to be addressed is ensuring quality representation by all attorneys and quality mentoring for younger attorneys.

Legal Education

Ury and Thomas ended their presentation discussing the current status of legal education. The cost of a legal education is rising faster than inflation while at the same time starting salaries are remaining relatively flat. Some law schools are pricing

themselves out of existence while student debt is becoming an unmanageable burden. As of 2011, the median starting salary was $60,000, while the large firms on the coasts paid over double that amount. Law salaries peaked in 2009, and have steadily declined since then. This makes a legal career less attractive, especially in light of increased costs and mounting debt. Many schools are looking at retooling and changing from the traditional method of instructing students to a more “practice-ready” model of instruction. In order for this new model to take hold, schools, bars, firms, and the judiciary will have to work in concert. The authors conjecture that failure to change could result in increased numbers of pro se parties and an increase in work sent overseas. Both law schools in Utah are ahead of the curve in this regard having already made significant changes in their clinical programs.

The challenges addressed were followed up by a presentation by Mark Fogg, Steve Crossland, and Jon Streeter who discussed the need to “Innovate or Die.” Their suggestions were: create programs matching the middle income client with the underemployed attorney, change legal education to make graduates more “practice-ready,” have self-help centers in courthouses, have a rule allowing unbundled legal services, and allow a limited license. I’m proud to say Utah has already adopted all of the innovations with the exception of a limited license. Given the great many attorneys currently underemployed, I don’t see the limited license rule coming to Utah quickly, but I do see a huge opportunity for the Modest Means program to fill the gap. As our law schools, the Utah State Bar, the Utah State Courts, and firms have already innovated to address the changing future, the information provided by Ury and Thomas will allow us to continue innovating and changing to ensure our attorneys are the best in the nation and have secure employment.

The dreary prognostication also made me wonder if the changing legal world is what contributes to the overall view that attorneys are a “cynical, miserable lot.” ABA Journal, Are Lawyers more miserable than general population, February 20, 2013. Dan Bowling, a “psychology guru” who teaches at Duke University, says lawyers really aren’t all that miserable after all. He blogs that lawyers are “generally satisfied with their lives.” Bowling also targeted the view of attorneys as cynics and says that while attorneys are critical thinkers, so are most holders of post-graduate degrees, drawing a distinction between critical thinking and cynicism.

An even more recent poll by Gallup demonstrated that attorneys are second only to physicians in job satisfaction and overall well-being. Workers in professions including attorneys self-reported especially high scores in physical health and among the least likely to suffer from any form or recurring pain. Statistically, lawyers, accountants, and engineers have an overall well-being score of 73.0% with a 90.4% job satisfaction percentage. Because I’ve had access to the stories you have provided regarding your voluntary service to your communities, I am even more confident that the attorneys in Utah are a notch above the national average. We’ve already addressed the suggestions to avoid the legal apocalypse, we have the information available to make additional changes as needed, and we are, as a population, great contributors to the success of our communities. My message to you is take the information to use as you see it applies, and thank you for your service.

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