Jordon Furlong at Law21 is either a visionary or the Prophet of Doom, according to how strongly you desire to embrace a future where the law is no longer a learned profession, but just another service trying to keep its head above water. Jordon views the commodization of law as inevitable.
Lawyers also are under regulatory pressure (in England & Wales through the Legal Services Act, in Canada by the Competition Bureau, and the Missouri lawyers suing LegalZoom for the unauthorized practice of law better hope their suit doesn’t produce the wrong kind of finding). But still we resist new competition through UPL restrictions, we seem to regard technology as a nuisance more than a service facilitator, we routinely warn clients of the dangers of going it alone, and we maintain (patronizingly) that we always end up fixing the messes left by unrepresented clients.
By analogy, Jordon points to what’s happening with realtors as a window on our future:
The Globe & Mail reports on a rising wave of sell-it-yourself home realty, prompted by both Canada’s Competition Bureau and its intention to deprive Realtors of their near-monopoly as well as technological advances that allow people to buy and sell homes without professional assistance. Realtors — and this might sound familiar — have responded by fighting the Bureau’s efforts to open the market, scaring homeowners with the dangers of proceeding without professional assistance, and confidently predicting that these amateurs’ mistakes will simply produce more work for Realtors in the end.
While there are some obvious differences between lawyers and realtors, there are also some obvious similarities. We both provide services based upon specialized knowledge. The fees for those services often appear unrelated to the benefits derived, as neither is a profit center and both are viewed as a drain on revenue. Most significantly, many people are uncertain that our services are necessary, and harbor a belief that they could have (or at least, should have) been able to do just as well without us.
When Jordon highlights our resistance to “new competition through UPL restrictions,” it suggests that he sees the future of law disconnected from lawyers. Whether this means that companies that sell legal forms are the future, or getting legal advice from unknown avatars on the internet, or unbundled services by undisclosed lawyers, is unclear. Jordon’s point has long been that all these forms exist and are growing, while we sit in our offices pondering when the phone will ring.
The primary cause of discontent with lawyers doesn’t strike me as all that hard to figure out. People perceive lawyers as doing a lousy job of it and charging too much for the pleasure. The former aspect has two components, the first being that the nature of the law isn’t an exact science. When we hire a plumber to fix a leak, his job is done when the leak is gone. Law doesn’t work that way, and lawyers can’t guarantee that they can produce what the client desires. Whether in litigation or transactions, a lawyer can fight for his client’s interests and desires, but faces an opponent doing the same for his client. Someone isn’t going to get what he wants.
The other factor is that there are a lot of incompetent lawyers, or lawyers who just don’t care enough to provide competent services. We’ve got far too many lawyers, and our law schools keep pumping out more. This can be addressed, but won’t until half the law schools are shuttered, and lawyers police our own ranks to rid ourselves of the bad ones.
Ironically, one of Jordon’s beloved futuristic cures, technology, is likely a significant culprit in the dissatisfaction with lawyer incompetence. Internet marketing allows the most mercenary, inexperienced and/or incompetent lawyer to promote himself as the most experienced, competent, caring lawyer alive. Suckers believe what the marketing promotes, to the consumer’s detriment.
The second primary cause of discontent is the cost of legal services. The simple fix is just to cut legal fees in half, but it becomes a problem when lawyers aren’t charged half price by plumbers. Even to those who have chosen to practice law because it’s what they want to do with their lives, there remains a desire to feed one’s family, buy the occasional pair of new shoes and put gas in the jalopy. Practicing law should not require an oath of poverty.
We can certainly reduce some costs with adoption of technology, but I suspect that applies more to some smaller niches than law in general, and the savings is relatively inconsequential. It also involves certain compromises, which is clearer to those of us who practiced before technology was so widely adored. Computers are great, but spellcheck isn’t a substitute for a human proofreader. Chatrooms and listservs create a sense of community, but the tenor of discussion can’t be compared to sitting down with a bunch of compadres in the same room swapping stories and advice.
It’s unlikely that Jordon would disagree that public use of online legal forms, or free internet advice, or unbundled services, have their faults and downside. They do, however, provide an alternative to costly, and possibly incompetent, legal services. In many instances, these lawyer-substitutes will end up satisfying people’s legal needs, or at least do no harm in the process. In some instances, they will result in disastrous consequences.
So what is it that Jordon would have us do to greet this future? Some have suggested we dumb-down the law to make it comprehensible to anyone with a third grade education, thus allowing regular folks to circumvent lawyers and have a fighting chance to figure it out for themselves. People of good will believe that their positions are reasonable and just. So do their adversaries. Do the math.
Will this result in “anarchy and blood in the streets,” as derided by Jordon? Maybe some, as it happens occasionally now. It will, I believe, result in increasingly greater dissatisfaction with the law and the processes developed over the past millennium to resolve disputes and defend the rights of individuals against the sovereign. If using lawyers sucks, going it alone sucks worse when you’re on the losing side.
Eventually, someone will come up with the concept of a group of individuals, specially trained to provide legal services to individuals, vetted for competence and empowered to hold themselves out to the public as being capable of serving them in a legal capacity. I wonder what we might call such people?
Maybe the public won’t appreciate why lawyers came into being until they’ve had a chance to duke it out without lawyers and see how everything goes. In the meantime, it doesn’t seem like such a great idea to either succumb to half-baked demand for lawyer-lite, cheap but unfulfilling.
If that’s what being a lawyer is reduced to, I would prefer to be a plumber. At least then I would feel the satisfaction of knowing that I stopped the leak.