When some of the staunchest defenders of legal tech go on a rant, it tends to provide an interesting look beneath the surface of the future of law crowd. The suspension of Fred Barakat from the practice of law in Delaware gave rise to such a rant, and certainly lit up the tech crowd, starting with Niki Black:
At issue was whether Mr. Barakat, a Delaware lawyer, had engaged in a number of ethical violations, including whether he had violated the bona fide office rule. It was alleged that Barakat had access to office space in Wilmington such that he could rent a conference room, when needed. Additionally, employees of the landlord collected his mail and directed any visitors to the fourth floor where a receptionist was stationed who greeted visitors.
In response to the allegations, Barakat claimed “that advances in technology enabled him to handle client matters effectively, despite his lack of presence in the Wilmington office.”
All of which made for a nice debate, except there was a rule requiring a bona fide office and he violated it.
Silly Barakat! Technology is irrelevant. “Real” law offices have lots of unnecessary, costly overhead such as: 1) oversized mahogany desks with bottles of booze in the top right drawer, 2) big law libraries chock full of dusty books, 3) lots of carbon paper right next to the typewriter (some even have bulky desktop computers and copiers), 3) a number of abacuses (or maybe even new-fangled calculators), 4) Rolodexes, 5) rows and rows of cabinets for reams of paper files, and 6) quill pens (although the latest new trend sweeping antiquated offices everywhere is ballpoint pens).
Heh. She wrote “abacuses” and “rolodexes.” Ouch. Niki is not a fan of quill pens, which of course has nothing to do with the issue but reflects the false dichotomy of low/high tech. But Carolyn Elefant at My Shingle chose a different path, going to the heart of the hypocrisy framing the debate:
Had Barakat been just a little hipper, he would have followed the lead of the cool law kids who reside in similar virtual store fronts just down the road, with names like
LegalZooms, Axiom, RocketLawyer, Clearspire, UpCounsel and Priori Legal. If we’re being honest, these entities are essentially de facto law firms — but unlike Barakat who somewhat resembled a traditional lawyer, these #newlaw entities shed most of the trappings of #oldlaw and thus, evade regulatory scrutiny.
Now this is some interesting stuff. As has been clear in its utter lack of clarity, the alternative law models so dearly beloved by the #Reinvent the future of law types are “de facto law firms” except that by claiming they’re not by hiding their nature behind an impenetrable wall of meaningless jargon, they aren’t required to comply with any of the rules and regulations created to keep lawyers honest and protect clients from harm.
Why don’t the same regulators who went after poor virtual Fred go after Axiom? Well, they can’t, as they don’t claim to be a law firm, and thus fall without their jurisdiction. What they are, if they are indeed the “de facto law firms” that Carolyn and I suspect, are criminal enterprises, engaged in the unlawful practice of law. That means it’s up to prosecutors to take them down for committing crimes.
But neither Carolyn nor Niki take issue with Barakat’s underlying premise of the virtual law office.
By the time the ethics regulators wake up and realize that imposing costly requirements on solos and smalls like bonafide offices serve little purpose but to increase the cost of legal service, it will be too late.
The costly requirement is an office, and it can indeed be a costly requirement, though one that most lawyers find enormously worthwhile. But to say it “serves little purpose” is to grossly overstate the point. Where does a client go after he paypals a virtual lawyer a few grand to handle a matter and the lawyer then disappears on him? No return calls. No emails. The lawyer has money and original documents, and has vanished in the ether?
The problem is that this happens. My pal Andrew Bluestone, who does legal malpractice prosecution, has catalogued such nastiness for years, in its many permutations. The future of law folks presume all lawyers to be virtuous, and if that was true, then perhaps the rationale for need for an office would be significantly diminished. But to say it serves little purpose is to deny its very real purpose: to make the lawyer findable and protect the client from the vanishing, the dishonest, the lazy, the greedy lawyer who takes their money and runs.
Carolyn resolves the hypocrisy by damning Delaware with making the barrier to entry, a physical office, too high. Niki just damns Delaware.
Ironically, in trying to preserve the past and the old way of how law was once practiced, the Delaware court sacrificed lawyers’ futures. Inflicting costly bonafide office requirements on solos and smalls doesn’t accomplish anything but ensure solos displacement by cheaper options like LegalZoom or Rocket Lawyers or non-lawyer practitioners, all of whom aren’t subject to the same bloated regulatory mandates.
There is, of course, an opposite path to take to resolve what goes beyond irony and deep into wrinkly: Prosecute the altlaw businesses that practice law behind smarmy models and meaningless jargon. That’s what makes them the cool kids.
Whether there is a future for virtual law firms, and there may well be within the confines of models that provide clients with the competencies and protection that are demanded of lawyers for the right to hold people’s lives in their hands, the alternative models that prey on profit margins gained from flying below the surface of accountability are certainly damaging the ability of many lawyers, particularly the new and recently displaced, to gain a foothold.
But when the primary virtue of a business model is that it’s good for lawyers at the expense of clients, then it’s not an acceptable model. Granted, many people favor the idea of cheap legal services because, well, they want cheap legal services. Until, that is, things go bad, in which case they will be the first to blame cheap legal services.
And when things do go bad, and they will at least for some, clients need some place to go to find the lawyer who burned their world. When that happens, and it will, the cool kids won’t seem nearly as cool.