Saving The Law Or The Lawyers, Or Saving Both

While the ABA Task Force on the Future of Legal Education produced remarkably little of substance when it comes to actually fixing anything, it did throw out a few nuggets to keep tongues wagging.  One such nugget was the creation of “limited licensed technicians.”

However, there is today, and there will increasingly be in the future, a need for: (a)persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services. The new system of training and licensing limited practice officers developed by Washington State and now being pursued by others is an example and a positive contribution.

And so, they recommended that the ABA:

Authorize Persons Other than Lawyers with J.D.’s to Provide Limited Legal Services, Whether Through Licensure Systems or Other Mechanisms Assuring Proper Education, Training, and Oversight.

For regular readers, this may sound somewhat familiar.  But Richard Granat at eLawyering Blog raises a very interesting objection:

  • The data suggests that the pricing of legal services by solo practitioners and very small law firm firms is going down — not up. It is not a fact that the legal fees are out of reach of many consumers. There is no evidence to suggest that the fees that limited licensed practitioner would charge would be any less than the fees currently charged by solo practitioners, but their service, by definition, would be much more limited than the service offered by an attorney.
  • Solo practitioners are already being displaced by technology which is forcing a reduction in legal fees. Limited licensed practitioners would be even more vulnerable to the impact of information technology on the more routine services that they would offer.
  • The restrictive licensing scheme for lawyers, which is based on a “job-shop” model is likely to be replicated in the licensing scheme for “legal technicians.” Lawyers already suffer from a competitive disadvantage against new market entrants. Legal technicians will face the same competitive disadvantages.
  • Introduction of a new class of limited licensed professionals will continue to erode the economic model of solo and small law firm practice by sucking out from those practices the more routine legal services which are important to sustaining the economic viability of those law firms. It is naive to suggest that solo practitioners should concentrate on doing “more complex legal work” leaving the routine legal work to “limited licensed professionals.”. If the ABA wants to deliver a death blow to solo practitioners this is a good way to do it.

This is a truncated version of Granat’s argument, so go to his blog for the full version, where he provides support for his contentions as well.  Richard Zorza at Access to Justice offers a response:

The highly reflective Richard Granat has posted an analysis of why he has recently come to the view that creating a category of limited legal technicians may do more harm than good.  In short, he worries that the pricing model will be no cheaper than lawyers, and that such non-lawyers will force out solo lawyers.  In my opinion either may (or may not) be true, but not both.

In other words, if the cost of a lawyer and a limited licensed technician are essentially the same, people will go to lawyers. Only if limited licensed technicians are sufficiently less expensive than lawyers will solos be forced out of business.  Both Granat and Zorza offer some important thoughts to consider.  But as I tend to do, I disagree with both.

Their perspectives are skewed by what I have long railed against, the myopic effort to fix problems without considering how the entire legal ecosystem works.  The ABA Committee made this mistake (shocking, right?), and it’s repeated in the critique of the task force draft report.  Neither analysis of the issue takes into account critical considerations. What critical considerations? I’m glad you asked.

First, law schools continue to churn out more lawyers than society can sustain.  By “sustain,” I mean more than keep busy between games of Angry Birds, but provide adequate income to both pay the bills, provide a decent life and justify the price and opportunity costs of law school.  Note that whether law school is two or three years is immaterial.

How do I know this? Because nobody argued about its length when the money was good. We’re now in desperation mode, and so we struggle to save money wherever possible for the kids. But truth be told, if there was opportunity sufficient to pay the freight upon completion of law school, the issue of law school length would be (forgive the pun) largely academic.

Second, the assumption that limited licensed technicians would require some sort of post-graduate degree, thus increasing the cost of the occupation to the point where it competed with going to law school, is misguided. An undergraduate major would be more than sufficient, if well conceived (as I explain in my Legal Practitioners post), and thus add no cost that wouldn’t otherwise be incurred.

Third, the downward spiral of solos’ fees would end and reverse if lawyers could get back to being lawyers, doing the more sophisticated legal work we’re trained to do rather than scrambling to make a living by pushing paper.

Fourth, the ability to provide low-cost legal assistance in limited, routine matters to people who need legal services would be fulfilled in far better fashion, and at a far lower cost, in the long term by creating the separation between the lawyer function and the limited licensed technician function.

People need low-cost legal services. Lawyers cannot provide them without sacrificing their own economic viability. The Legal Practitioner can, provided we don’t overkill the position with excessive requirements and demands. If properly handled, there should be no overlap, either in services or costs, between the two. Once supply and demand of lawyers is adjusted to its proper level, this will happen naturally.  Of course, law schools must close and law profs forced to get real jobs, but hey, bummer, it’s not about them.

The creation of limited licensed technicians, or Legal Practitioners as I prefer, will take a few years.  So too will the wind-down of law schools.  In the interim, this will do nothing to help the extant need for legal services by those who can’t afford them, though hungry solos may fill the need.  It doesn’t help those who came out of law school the past few years, are deeply in debt and have no place to go. It doesn’t help law profs, many of whom will lose their jobs and most of whom will suffer a significant loss of income. It doesn’t help about half the law schools, which will have to close.

But once done, it will give the legal profession a chance at survival as a noble profession again.  And once done, it will give society access to legal assistance that it needs at a cost it can afford.  And if not done, and the legal profession ceases to exist and the people who used to be called “lawyers” are reduced to desperate, hungry businesspeople bent on selling cheap, ill-fitting suits because that’s all people are willing to pay for, no one will be better for it.

It will be years before we dig our way out of this hole, and there will be pain suffered by all in the process, but society needs strong, competent lawyers (whether it wants to admit it or not), and we (meaning all the stakeholders) have spent the past few decades doing everything possible to enjoy immediate gratification and a quick buck at the expense of our profession.  There is no magic bullet solution, but there are answers. They just require a broader, long-term vision and the will to pay the price of the last couple decades of greed and self-serving ignorance.

14 comments on “Saving The Law Or The Lawyers, Or Saving Both

  1. Carolyn Elefant

    Scott,

    This was a particularly thoughtful post about a controversial topic. As I blogged at MyShingle, I tend to agree more with Richard simply because I have concerns that the loss of these routine cases will pull the rug out from under solos currently struggling to get practices off the ground.

    Some of the differences arise from different assumptions. For example, you have conceived a Legal Practitioner program that would be based on an undergraduate degree alone which would mean no extra costs. However, I viewed the reference in the ABA Task Force report for the need for additional educational programs as a full employment act for law schools to add on pricey certificate programs beyond an undergrad degree which would mean that a Legal Practitioner would need to charge more to recover those costs. Second, as technology improves, I am hard pressed to conceive of a role for an LP that is anything more than a middleman between clients and an automated form. Years ago, when most state agencies and courts didn’t make forms available on line, an LP (or services like We the People – a paralegal franchise that ultimately tanked) could be very helpful in procuring and completing these forms, but now I am not so sure how helpful they would be. (On the other hand, HR Block tax service basically fills out IRS EZ Forms so there is a market for this kind of middleman assistance).

    As an analogy, a few blocks from where I live, there is a CVS minute clinic and a young doctor who runs a walk in medical clinic that handles small matters. Earlier this year (actually right around the time I was going to meet you & Niki in NYC), I was hit by a terrible flu on the weekend. The doctor’s office happened to be closed so I went to CVS where a tech ran down a checklist of symptoms and because I didn’t fit them (i.e., didn’t have strep), she couldn’t prescribe anything for me. The next day, the doctor’s office reopened and he was able to prescribe an antibiotic and other remedies that gave me relief within 24 hours. I see a nice little market for these kinds of small town legal clinics – but staffed by young lawyers not legal techs. You may be right that when the market corrects and there are fewer lawyers and prices go up again that this model may not be desirable for lawyers – but right now, I think it gives them a place to land for what that’s worth.

    1. SHG Post author

      You are correct that I think it’s necessary, albeit terribly unfortunate, that current solos will end up sacrificed on the alter of long term survival. There are just too many lawyers. While it would be great if they could all work for the poor, they still need to eat and society isn’t willing to pay off or forgive their loans, their rent, the food for their children, and so many will starve. They will be better off cutting their losses and putting their efforts into more viable pursuits.

      The ABA task force, not to my surprise, envisions an unnecessarily grandiose curriculum for limited licensed technicians. It’s just not necessary, as what they will do isn’t that hard. It requires training, but it doesn’t require law school, but the ABA mopes just can’t get it out of their head that it has to be so special that it costs more.

      As for forms, I disagree with you to a large extent. I agree that automated forms will play a role, but the determination of which form given the need and all the circumstances, the execution of the form, the meaning of the duties and obligations, still require a human touch. Forms are easy. Using forms is hard. Understanding forms is even harder. The LegalZoom concept is fallacious, a joke played on unwitting non-lawyers, some of whom will eventually learn the punchline and be terribly harmed. Most people both want and need a living, breathing person to explain and guide them, but use forms for lack of an alternative. This will fix the problem, serving people at lower cost while freeing lawyers to do the work for which they historically exist.

  2. BRIAN TANNEBAUM

    One of the things that is mostly absent from these discussions is the demand side, i.e., clients. When I formed my PA in 1998 I went to a lawyer. That lawyer charged me $400 to form my corporation. I could have 1. done it myself for costs, or 2. went to the one new website of a lawyer who had a company where I could point and click and have my docs done by a lawyer sitting in a pair of shorts at a beachside condo. I had questions, so I was willing to pay probably double what it may have cost me to figure it out myself.

    My point is that no matter the availability of a “technician” that can write a will for $83 or a virtual lawyer that will do it for $175, won’t there always be the client market for those lawyers who charge $750 but have an office with free coffee and a few pictures of the city back in 1875? Does that market dwindle significantly by the availability of cheaper services, or is it those that would never hire a lawyer in the first place?

    I don’t think Supercuts took many clients from Joe the Barber or Susan the expensive hairdresser who you can’t get in with shorter than 2 weeks away. I think people who cut their own hair were driven to the $8 market. Yes, high end clients may be attracted to the notion that they can get a document for 3 cents on the dollar, but will it really be that many?

    And no, I don’t get my hair cut at Supercuts. not yet at least.

    1. SHG Post author

      I agree that there will always be clientele for quality legal services. The lower end of the spectrum, the form buyers and the limited licensed technician user, only used quality legal services when they absolutely had to. Like going to Susan for the wedding cut, but Supercuts otherwise. But there are only so many of those clients who use and appreciate quality legal services, and can afford them for every haircut.

      With far more lawyers than clients, some haircutters are going to have empty chairs and others are going to have unhappy customers when they find out they thought they were getting Susan and ended up at Supercuts. Or worse. But they still need to get their haircut every once in a while.

      1. Carolyn Elefant

        I also agree that there’s a market for high end services. But the lawyers who are providing quality legal services will always do well in any economy. That’s why I don’t fear “competition” from non-lawyer technicians. But my concern is related to how we train this next generation of lawyers. I see these kinds of matters as good starter cases for lawyers – and with forms, lawyers can provide the service inexpensively to work their way up to serving bigger clients. Law school isn’t training students (and I have abandoned any hope that it ever will) and while I know that many lawyers (ourselves among them) mentor young lawyers, that’s a just a drop in the bucket compared to what is needed. I don’t know if Susan the expensive salon owner started at Supercuts or sweeping the floor at the salon but she worked her way up somehow.

        1. BRIAN TANNEBAUM

          Interesting that I compare a lawyer with a virtual practice or a “technician” to a lawyer with an office and Scott calls it “quality legal services” and you call it “high end” legal services. Have we come to the point where “high end” or “quality” means the lawyer actually has an office or isn’t just selling a form? The problem to me is that at the so called “low end” are people who see the profession only as a business and are trying to figure out a way to profit with little investment. While I know there are lawyers who charge low fees and do volume work that provide “quality,” the point remains that you normally, not always, get what you pay for.

          1. SHG Post author

            Both you and Carolyn are looking at this through your personal agendas, and neither of you sees the bigger picture. This isn’t about being a solo cheerleader or against virtual offices. Think bigger.

            1. SHG Post author

              That’s what I’m here for, bro. All the “new” models, VLO, unbundled, whatever, are attempts to tweak, and in many instances beat, the system. All these tweaks involve ethical issues, competency issues, honesty issues, but they are all trying to circumvent systemic problems with the profession and its ability to provide for a healthy, sustainable profession and at the same time deliver competent, ethical legal services to the public at a viable prices.

              If today, every lawyer who opened a shop fixed their rates at $750, had a good office where they served coffee, worked hard at improving their skills and maintaining competency if not excellence, only marketed themselves ethically and honestly, provided full professional legal services to every client with a smile, more than half would be bankrupt within a year.

              We spend a lot of time trying to stop the bad lawyers, the incompetent and unethical, and the new schemes that lend themselves to incompetence and deception, but that stopping the bad doesn’t provide for a healthy future for the profession or the public.

  3. Andrew

    I keep having this argument with an idiot on another blog who thinks we need more lawyers to increase access to legal services. He even used divorce as an example. There is such a glut of family lawyers that I guarantee him that his friend couldn’t find a divorce attorney because he couldn’t even afford a bargain basement price that would let a lawyer keep the lights on, not because lawyers are all money grubbers.

    There are many people who can’t afford to pay enough just to make it barely worth a lawyer’s while. The solution is not driving costs down further to sub-living fees. With all the people who can’t afford a lawyer at *any* price, and the glut of lawyers, the one rational response I can see is increased legal aid funding. But I don’t see that happening.

    1. SHG Post author

      Since people assume lawyers are all making oodles of money, their inability to pay results in their anger at the greedy lawyers. It never occurs to them that lawyers may not be filthy rich and need to earn a living, just like them.

  4. Anonymous

    “It never occurs to them that lawyers may not be filthy rich and need to earn a living, just like them.”

    Who says they don’t need to earn a living? Lower fees means more business.

    1. SHG Post author

      You misread the sentence. Try again.

      As for “lower fees means more business,” maybe, but that doesn’t equate to survival when you take in new business at a rate that can’t support the costs of doing business plus a sufficient livelihood. Don’t be simplistic.

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