When Jacoby & Meyers began, it was supposed to be the People’s law firm, solid lawyering at prices regular folks could afford. Some wags might argue that this was merely a marketing stance, as they wanted money as much as any other law firm. When they didn’t get it, they pivoted to a personal injury firm.
There was a structural argument with the concept of low prices that doomed it to failure: if you don’t make enough money, then there’s no point in running a business. If your intention is to run a charity, that’s a different story. J&M was no charity. Their lawyers want to get paid, and paid enough to enjoy the comfortable lifestyle their mommies promised would be theirs if they just hunkered down, went to law school and became professionals. There is nothing wrong with that, even if the nice folks who want cheap lawyers fail to grasp that their cheap comes at the lawyers’ expense.
Same goes with the advocates of Access 2 Justice, all of whom get paychecks from somebody else while telling lawyers to work for pennies for the good of the poor and downtrodden. People need inexpensive legal assistance. Lawyers need to feed their kids. Do the math.
But to Jacoby & Meyers’ credit, they pushed their failed business model in the right direction, unlike the alt-legal businesses which basically are continuing criminal enterprises that no prosecutor seems to give a hoot about. The firm challenged, head on, one of the primary canons of legal ethics, non-lawyer ownership of law firms.
The pitch was pretty much the same flowery nonsense that works well among the terminally clueless and the deeply passionate. The Second Circuit was not amused.
The J&M Firms allege that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services. By impeding them from reaching this goal, the J&M Firms contend, the state has unconstitutionally infringed their rights as lawyers to associate with clients and to access the courts—rights that are grounded, they argue, in the First Amendment.
It’s for the poor clients, they say. Of course they do. Southern District Judge Lewis Kaplan may have gotten a good laugh out of that one. Or maybe he just cringed, wondering why they thought he was stupid enough to buy this crap.
The irony here is that Jacoby & Meyers is a law firm. Yet, they were represented by Douglas Blankinship of Finkelstein, Blankinship, Frei‐Pearson & Garber*. Maybe they didn’t want a fool for a client. Maybe they realized they lacked the chops. But whatever their purpose, the J&M firm retained counsel to represent them. Because law is hard, and for all the malarkey J&M was trying to spread, it knew better than to rely on crappy lawyering when its own interests were at stake.
Belying the claim that if a law firm could only enjoy the infusion of cash from non-lawyers, it would have the money it needed to use magic voodoo technology to perform law in cheap minutes at rock-bottom prices, is basic economics. Non-lawyers aren’t giving lawyers big money because they’re great humanitarians, but because they want a return on their investment. The firm has to make money to make it worth the investment. The only way law firms make money is to charge clients.
The question then shifts to volume. If a law firm can do a thousand wills for $100, versus 100 wills for $1,000, in the same period of time, it can generate the same revenue. Can tech make this happen? Of course it can. It can do that now, by putting a form will on the computer with some fill in the blanks.
But the problem is that the work product will be garbage, because filling in the blanks is the easy part. The hard part is knowing what to fill in the blanks, and that requires a depth of understanding of each testator’s needs, family circumstances, situation. To learn that is what distinguishes a lawyer from the guy who sells legal forms. That blows the deal, as each client either takes up lawyer time despite technology or gets inadequate representation.
Tech may be able to cut a little time off the lawyer’s work at the fringes, but as long as a lawyer’s time and advice are what he’s selling, it will never touch the primary cost of legal services. Plus, the tech costs money too, vitiating the tiny benefit it offers in time savings. It’s a wash at best. Any practicing lawyer who gives a damn about competence knows how the numbers work out.
But that’s not what makes this infusion of non-lawyer cash unethical. The management of a law firm should be predicated upon the performance of zealous representation and fulfillment of professional responsibility. What it should not be about is maximizing a return on investment, which is the only thing a non-lawyer investor cares about. You can’t blame the non-lawyer investor. That’s why people invest.
When a non-lawyer is the owner, the obvious solution to earning more money is doing less lawyering, spending less time, thinking less hard, caring less about the client than the cash. Putting that pretty pink “what about the poor clients” bow on top of this mutt doesn’t make judges incapable of seeing the bullshit through their sad tears. This is about money, which is a perfectly fine thing but for the fact that it’s a law firm whose only justification for monopolistic existence is to practice law for its clients’ benefit.
And yet, what of the First Amendment? Why do I hate the First Amendment so much?
That’s a red herring, as should be obvious. When we stand up in that fancy courthouse to swear our oath of fealty to the law, we do so voluntarily and in exchange for the right to be that guy in the well. We knowingly give up some rights, like the right to do whatever we want despite the Code of Professional Responsibility. This is the profession we chose, and we knew what the rules were. Yet, we took the oath anyway. Volenti non fit injuria.
Is it really that lawyers (and judges) just hate technology? Nope. Not at all.
It’s not that lawyers are anti-technology, it’s that they are anti-bullshit.
The Second Circuit wasn’t fond of bullshit either. Good decision.
*As Turk informs me, the managing partner of Jacoby & Meyers NY is Andrew Finkelstein. He’s also the principal of Finkelstein and Partners. And he’s also the Finkelstein in Finkelstein, Blankinship, Frei‐Pearson & Garber, LLP. So, one might say that J&M did go kinda pro se, although others might say that’s not really possible since a lawyer can’t be in three firms at once. But one thing is clear: Andrew Finkelstein isn’t lazy.
H/T Keith Kaplan