The Profession is Doomed

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Recently I participated on a panel on the future of the profession for the National Conference of Bar Presidents and walked away thoroughly convinced the profession is doomed.

For those of you unfamiliar with how bar associations make decisions, I offer the following story:

If someone asked for permission to go to the bathroom, a bar would form a task force (or commission) to fully examine whether going to the bathroom was a good idea and to highlight all of the pitfalls around bathrooms. After 18 months they would issue a report stating that going to the bathroom is generally a good thing and should be promoted to those who need to go, but only if all of the potential negative impacts have been understood, limited and communicated to those considering bathroom breaks. The report would not actually authorize the request to use the bathroom. It would be left to the Bar Board to actually enact a rule permitting said activity. The Board rarely follows up as they are busy forming the next task force and would not want to take any heat for authorizing such a dramatic change.

In the meantime, the guy who made the original request either went, or died.

The presentation panel actually offered a real-life example, that broke this mold - at least in some fashion. The panel participant from Washington, discussed how they are implementing Limited Licensure Legal Technicians (LLLT). That effort began in 2001, culminating in the first licensees coming online this Spring. But in this circumstance, the Supreme Court actually pushed this through, against the wishes of the bar. The result was one small change to the market that took 14 years to implement.

And here is where things got ugly - the audience focused in on the details of the LLLT program, trying to poke holes in it. This audience was made up of Bar Presidents and Executive Directors. These people are well positioned to drive change across the profession. But instead of talking about how they could adopt similar changes in an accelerated fashion, they were looking for ways to kill it.

I sat there as long as I could listening to this. Finally I could take it no longer and interjected. I "suggested" that a failure to drive disruptions would lead to others moving in and taking over the legal market. With some internal fortitude, I was able to avoid using swear words.

After the presentation a number of attendees from state bars sat down to chat with me about all of this. A universal theme was that whatever they might do to disrupt the market and drive innovation will be met with strong resistance by the bar membership. As I see it, bar associations have little to gain by pushing on this issue, even though they have a lot to lose by doing nothing. Their members will not abide any efforts short of turning the clock back. I gave numerous suggestions for how a bar might drive change to the group. All were met with exacerbation and a recognition that any efforts will be met with broad and strong resistance.

For a long time I have held out hope that the legal profession would step up and address the needs of the market: for both lawyers and clients. After this experience, I have come to the hard conclusion: That is not going to happen. As smart as lawyers are, their training and experience have made them a reactive and dogmatic group. In their minds, the way they have been doing it is the only way to keep doing it. Anything else is a threat to the profession and their practice specifically.

This all saddens me. Lawyers hold a sacred duty to the rule of law. Their inability to act means the rule of law will be handed off to someone else - someone without that obligation. As a society we will all be worse off.

If the medical profession is any indicator, we should fully expect insurance companies and or perhaps banks to become our future legal service providers.

Welcome to the future.

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George Beaton said...

Toby, a sad tale that rings true in Australia too. To me, salvation will come (rather is coming) from clients. Clients rule. And where clients go, attorneys and firms will follow. It's now a buyer's market, but many decades of learned habits have to be undone and practices remade. Well said.

Jeff Carr said...

Toby -- this would be such a funny post if it wasn't oh so true. As lawyers do what lawyers always do: talk, talk some more, position, posture, argue, obfuscate and complexify, the market will move on and leave them behind. The era of NextLaw is here and Next Law is all about the customer, not about the lawyer.

Jason said...

Toby, to the point made by the bar execs, just take a look at what happened in Texas a couple of years ago after the Supremes shoved through the pro se forms for divorce cases. The family practitioners went nuts and they are still complaining about it today. And those were just forms designed to help serve the 55k pro se filers a year.

Julian Summerhayes said...

I understand the frustration but I don't believe that all lawyers are so inept to totally miss the bigger picture. Oh sure, they're a hard lot to win over but in the end there's a huge trust element that the new entrants will have to work exceptionally hard to displace. I just hope enough of my former brethren step up to the plate and act.

James M. Grandone said...

I related to this story viscerally. My practice is in Legal PR, Crisis Communication and Strategic Counsel. If you do not know what those terms mean, please move on to the next comment.
I meet with partners of law firms to discuss what their goals are and determine that they boil down to business development. When I recommend to them what they should consider doing based on my 30 years of experience, one of two things happen. First, I am told that there is nothing wrong with the way they have been doing things for years, which is to rely on referrals or advertise in the Yellow Pages.
Second, the partners (who generally do not like one another) argue about the need for any kind of marketing whatsoever since business is doing just fine, thank you very much.
At that point, I tell them that the practice is changing dramatically and the media for reaching people has already changed beyond their recognition.
This is usually followed by denial, debate, or a discussion something along the lines of "That is a long way off and it is not going to happen while I am practicing law."
Let me assure you it is happening faster than you can imagine and if you do not address change in the way you do business, you will likely be out of business in the next few years. Feel free to contact me to discuss this.

J Chen said...

My thought a few years ago: "What's legal isn't always effective and what's effective isn't always legal. And if there is a conflict between the two, effectiveness usually wins."

Anonymous said...

I am not sure an association is necessarily an appropriate instrument of innovation, but maybe with the right leadership highlighting successful change taking place in the industry, it can be an influencer. Honestly, even if it can get the conversation going, it is an improvement.

Pratik Patel said...

Great post Toby. I can picture your facial expressions as i read through the post. Pretty funny.

The challenges is this. We are trained to take action where there is minimum risk, and where there is risk to be assumed, the upside must be big. Makes sense. The accurate application of this is quite logical.

So now let's take disruption/innovation. If you take the situation above, I think the legal profession WILL move, but they will move at once together (which is also a problem). Most will time their risk. Most will wait until early adopters have failed and failed again and then gotten it right. The problem with that is two fold:

first, the market will not have anyone to innovate for them if they are not fueling innovation throughout. Innovators will not be able withstand a flurry of firms and law departments all at once trying to jump on the ship. You can't starve innovation and then want it in a 44 oz cup! Half of the innovators would have already washed up by then! There will remain those survivors, but not enough to support the market shift. Organizations will buy whatever is available to keep up, which is also bad because some will go backwards due to poor quality.

Second, the upside at that point is not "big" anymore. It is just helping organizations be at status quo (or even worse, catch up). Therefore, organizations must remain at the front end of the status quo pool to gain real benefit if they'd like to time their risk. If your organization is on the tail end of that movement, you're not getting anyone to help (because there are only 10 gladiators left - remember that guy you made go broke?). Better reserve your gladiator soon.

So we need balance and early adoption of innovation for the benefit of the whole. Otherwise, like you say, the system may break itself and then we're watching the vulchers eat our lunch.

Having said that, from our vantage point, there is a lot of fueling of innovation from organizations who are trying things internally but not making it formal practice (yet). Law firms fit in this category. It is their way of hedging risk. They are not public about it (nobody wants to laugh and then cry) but they know that the runway for getting things just right in a world of resistance will take time. So they begin their journey just by walking in the right direction. On the flip side, law departments are pressuring innovation on the law firms. The cost of not trying could be the relationship. The cost of trying could be a roast. Roasts are bad, but a breakup is worse, right? Cue the relationship jokes!

Lisa Walton said...

I appreciate your comments. I'm a student at a non-traditional law school. I will be taking the bar exam in California this summer. I live in the Pacific Northwest and have every intention of pushing the boundaries and requesting the opportunity to take the bar exam in Oregon and Washington.

Frederic Ury said...

I was the moderator at Toby's panel and I am not near as discouraged as Toby is. Do we have a lot of work to do..fo course. But I have been talking about the Future for 15 years and I do sense a change in the conversation. It is slow and feels glacial compared to change in other industries but it is happening. It will continue to happen and the pace will increase with strong leadership from the Chief Justices Conference and Bar Leaders. Is it frustrating...you bet. But Toby you are making a difference. It just is hard to see some days. Thank you for your participation and support.
Fred Ury

Jeff Carr said...

The organized bar and many lawyers can catch the train, miss the train or get hit by the train, but make no mistake-- the train is driven by today's legal consumer -- the customer -- and it has left the station. The time is now, the choice is ours. As a former US Army Chief of Staff said "You can dislike change, but you're going to dislike irrelevance even more."

Toby Brown said...


Thanks for your comment and for including me on the panel.

I actually hope you are right and that I am wrong.


Ruth Tick said...

Great article. This rings so true. I'm in Florida. At the same time as the Florida Supreme Court is discussing consumers barriers to access to legal services(created a Commission with committees, etc) the Florida Bar is busy investigating and persecuting nonlawyer document preparers for unfounded, and unsubstantiated unauthorized practice of law violations.

Displaced Legal Professional said...

I don't buy the alleged shortage of competent legal help for people who cannot afford it. Proponents of various schemes for licensing nonlawyers to practice "limited" law allege there is such a shortage.

Notwithstanding that some law schools have established programs for supervised law students to provide legal help to people who need it and courts have set up such programs, it seems forgotten that law schools have graduated scores of JDs during the last few years. Many of them are having trouble finding jobs. So why not harness these individuals? Enlist mentors, if needed.

As a paralegal I should be overjoyed about the limited license movement. I am not. Even experienced paralegals have not collected theoretical law training sufficient to qualify them as true counsellors at law. The public deserves the best the legal industry can provide them.

Greg Zbylut said...

The profession of law has involved itself in a death spiral of its own making.

Big firms jacked up salaries to unrealistic levels, leading to unrealistic expectations of pay from law students. That, in turn, was capitalized on by law schools, who, promoting the unreal pay, jacked up tuition to unsustainable levels such that law students now graduate with enormous debt.


Now, the law student with the enormous debt needs to pay it, since we've also made it neigh impossible to get rid of via BK. So...they charge high fees, or go to work for firms that charge high fees, and no one can serve the low end of the market, because no one can survive there (well, some can, but they are few).

But wait, there's more. Because all lawyers are rich (right?) anything associated with law - research, software, etc. is hella expensive. Which just ratchets things up more.

Until this vicious cycle gets broken, lawyers will continue to push themselves to the fringe of the market. As my HS Econ teacher said - wherever there is a demand, legal or illegal, there will always be a supply. Someone else will fill the market and the lawyers will go the way of the dodo.

Jordan said...

Very insightful post. I believe it is a part of a natural cycle, if you will, that there will be a time where the legal world will have to change the way it operates or die out.

Jeff R Hawkins said...

Toby, we certainly have some folks saying "tidal surge my #$%!," but many of us have been spreading this word for years. Thank you for adding your voice to that message.


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