Change Is Coming To The Profession -- Get Ahead Of It Or Get Left Behind
What do lawyers and ostriches have in common? Birds of a feather and all that….
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As you may or may not know (or don’t care) the State Bar of California’s Task Force on Access Through Innovation of Legal Services is currently soliciting public comments on sixteen reform options. The options presented are the result of a Legal Market Landscape Report delivered to the Board of Trustees last year.
Among other comments, the Report says that modifying ethics rules will allow the legal profession to collaborate with others in the delivery of legal services. The Board is now polling lawyers for their thoughts on restructuring some of the Rules of Professional Conduct (we have them codified in the Business and Professions Code) that may be hindering the ability to provide affordable legal services. There are two goals here: consumer protection and access to legal services.
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Through early August, more than 400 comments have been received. To no lawyer’s surprise, at least not to me, comments in opposition to the various options trounce those in favor. And who says lawyers are resistant to change? We do.
Some of the options are close to a lawyer’s heart and income: recommendations for exceptions to UPL. Option 2.0 would provide an exception to UPL. “Nonlawyers will be authorized to provide specific legal advice as an exemption to UPL with appropriate regulation.” The purpose would be to authorize nonlawyers, such as limited license technicians [which we do not have in California yet] to provide specified legal advice and services. The option “…should be considered as means for increasing access….”.
Another UPL exception is set forth in Option 2.1, which would permit that “entities that provide legal or law-related services can be composed of lawyers, nonlawyers, or a combination of the two, however regulation would be required and may differ depending on the structure of the entity.”
Another UPL exception is set forth in Option 2.2 by adding “… an exception to the prohibition against the unauthorized practice of law permitting State-certified/registered/approved entities to use technology-driver legal services delivery systems to engage in authorized practice of law activities.” This exception would require that the entity’s method of delivering legal services be powered by technology. What happens if the technology is on the fritz, outdated, or just plain wrong? Who gets slammed for UPL? Anyone?
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What about changing the ethical rule on fee sharing? Option 3.1 has two versions. The first one, consisting of two parts, would expand the existing exception for fee sharing with a nonlawyer to allow a lawyer to pay a court awarded legal fee to a nonprofit that used that lawyer in that case, and it would allow a lawyer to be a part of a firm in which a nonlawyer holds a financial interest, providing that certain regulatory compliance requirements are met.
The second version is broader and would generally eliminate the prohibition against fee sharing with a nonlawyer so long as the client has given its informed written consent to the fee sharing arrangement. We use informed written consent for conflict waivers, why not for fee sharing?
The results so far confirm the thoughts of many people, including me, that lawyers are hidebound and resistant to change. Randy Kiser discusses this reluctance in a recent post on leadership in the profession. Innovation and change management are dirty words to many lawyers. We prefer to bring up the rear.
As a former law firm chair said seven years ago, “Never underestimate a lawyer’s resistance to change. Even more likely, never underestimate the ability of lawyers to describe virtual status quo efforts as revolutionary change.” He’s spot on.
If, at the end of the comment period and many of the comments are opposed to the UPL and fee sharing changes, among others, what will the State Bar do, if anything, about such resistance? The State Bar gets to recommend what lawyers can do and what nonlawyers can do. These changes can directly affect a lawyer’s ability to make a living, to pay off student loan debt, perhaps to marry, buy a home, raise a family. Some demographic information about who comments would be useful. Are they newbies? Mid-career? Dinosaurs? (I doubt if most lawyers will bother to answer.)
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To that end, I think there needs to be other constituents in the mix: what about persuading malpractice insurance companies to lower rates so that legal fees could become more affordable? (Cue the hysterical laughter.) What about loan forgiveness or, if not forgiveness, at least reduction? What about looking at our antiquated state discovery laws and see how we can streamline them so that less client money is spent pre-trial and thus less lawyer fees?
Where are the clients in this discussion? We assume that we know what clients want, but do we really? Yes, I know the mantra of “better, faster, cheaper” but is that it? Is that all? What about getting it right? If you try to explain the discovery rules to a client, the eyes roll back in the head. I think that these are all questions that factor into consumer protection and access to justice. So, how do we have those discussions in the context of what is, so far, opposition to some controversial changes?
The comment period closes September 23, 2019. The profession is at a critical juncture and the State Bar needs to hear what we think, whether pro or con.
Change is coming, whether we like it or not. If we are not part of the solution, we are part of the problem. Sticking our heads in the sand is not going to be the solution.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
