American Bar Association / ABA, Legal Ethics, Small Law Firms, Solo Practitioners, Technology

Back In The Race: Protecting Autonomy

Outsiders are putting out proposals that will alter the autonomy and livelihoods of solos and small firms -- who are they, and what are they proposing?

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Last week, I wrote about the cold and civil war between young and elder attorneys, particularly among solo practitioners and small law firms. Partly this is due to different generational upbringings. But also, the competitive business of law gives little incentive to share work, exchange ideas, and give advice. Whether you are considered entitled or out of touch, we are all trying to make a living in a profession with an uncertain future. Instead of working together to try to improve the system, we turn a blind eye or attack and blame each other.

In the meantime, outsiders are putting out proposals that will alter the autonomy and livelihoods of solos and small firms — possibly for the worse. Who are they, and what are they proposing?

ABA – Outsiders Proposing Small Law Policies. The longer I am in practice, the more I am convinced that the ABA should change its name to the American Biglaw Association. It tries too hard to be the umbrella that represents all attorneys’ interests. The truth is it can’t, and in most cases, the interests of solos and small firms are placed on the back burner.

For most solos and small firms, the cost of membership is not worth it. Their CLE classes are expensive. The cost of attending one out-of-state ABA conference alone can cost over a thousand dollars if you add registration fees, hotel, and travel. Also while it is great to meet a fellow attorney practicing in a different state, the likelihood of referring future business or even sharing useful advice is close to nil. It seems like joining the ABA would be worth it if you are trying to establish a national practice or if you want to influence policy and have the time and resources to do it.

Around the time I wrote last week’s piece, I got a copy of a letter from the ABA Commission on the Future of Legal Services proposing solutions for representing poor people expanding access to legal services. I was impressed with the committee’s diverse membership representing Biglaw, small firms, the judiciary, academia and state bar associations. So I was hopeful that the committee would try to find a solution where everyone from various sectors of the legal industry can work together to expand legal services.

Or maybe not. As Carolyn Elefant points out, the committee is singling out solos and small-firm attorneys and wants to know how they can sustainably represent those who cannot afford lawyers. I wonder what they mean by “sustainably.” Is that a fuzzy way of forcing solos and small-firm attorneys to represent indigents at no charge for the greater good?

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Or maybe it’s because solos and small firms are flexible, run at lower costs, and can better relate to the middle-class clientele. Yeah, we can relate. Too well actually. In fact, some small-firm lawyers are just as broke as the people that need their counsel.

The other groups will have their own excuses. Biglaw can’t be bothered to set up a pro bono satellite office in the poor part of town because their groups have no experience in dealing with evictions, debt collection defense and unemployment benefit appeals. The judiciary can’t do anything because they too are suffering budget cutbacks. And law schools, because of declining enrollment, have to cut unnecessary expenses — like pro bono clinics, as one school did.

As if that wasn’t bad enough, the committee is also considering alternative business structures where non-lawyers can own an interest in a law practice and can provide legal services. I personally find this amusing because I, like many young lawyers, was forced to learn professional ethics rules and ultimately learned to respect them. As a law student, professional responsibility was a required course for graduation. We had to take the MPRE, and ethics was a sure bet topic on the bar exam. And now some of the concepts we learned are being questioned, which makes me wonder whether the entire ethics system needs an overhaul.

I, like Carolyn and a few others, find it disturbing that solos and small firms may have to assume the ultimate responsibility for providing legal services to those who cannot afford them. Most solos are barely breaking even due to increasing costs and decreased business. Others are maintaining minimal practices until they can find real jobs. The responsibility should be shared by everyone. But because most solos and small-firm attorneys do not have the collective will to object, their voices will probably be drowned out.

Alternative Legal Providers (ALP) – Efficiency In Exchange For Autonomy. ALPs, owned and operated by non-attorneys or former attorneys, have been around for many years. Some were former paralegals operating underground document preparation businesses. They would ghostwrite forms and, in some cases, pro se legal briefs. Others, like We The People, had more established document preparation practices. But Legalzoom put the ALP business on the map, and its success is inspiring a number of copycats.

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I don’t want to give even a hint of publicity to some of the new ALPs I have been hearing about. All I can say is that they exist and are backed by wealthy investors who are willing to invest a ton of money and wait a few years to gain market share and a following among the public and even attorneys — in particular, young attorneys who are open to new ideas and are disillusioned by the legal profession as it currently stands.

The business plans of many new ALPs seek to work with attorneys but replace the traditional law firm. They want to use the internet to connect people seeking legal advice with attorneys who sign up for their services. The problem is that due to the ABA’s prohibition of fee-splitting with non-attorneys, ALPs can only make money by charging attorneys for their services.

But with the legal profession being dismal with little likelihood of improvement, many attorneys may be willing to rethink the fee-splitting prohibition if ALPs can provide a more efficient way to bringing in paying clients. As mentioned above, the ABA Commission on the Future of Legal Services will give the issue serious consideration.

Every attorney is open to new ideas and technological advances, especially if they will help make practice easier and bring in additional clients. However, if the fee-splitting prohibition is removed or altered, this may open the possibility of non-lawyers dictating how a client’s matter should be handled. Resolution of cases is more likely to be motivated by profit as opposed to achieving the most beneficial result for a client. I’ll leave it to the more experienced attorneys to explain how this can lead to dire results. Please email me your thoughts.

It is inevitable that solo and small-firm practice will experience some dramatic changes in the next few years. But the way things are looking now, it looks like we will have to deal with more burdens and lose more control over our practices. So are we going to sit around and complain on blogs and listserves? Yes, you can be heard, but unless you are heard by the right people, your voice means nothing. I am hoping that the small-firm community can come together somehow to make sure that we have at least some semblance of control over our collective professional destiny.

Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached at sachimalbe@excite.com.

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