My first real introduction to virtual law offices and unbundled services came after Stephanie Kimbro offered to send me a tract she had written explaining not only the concepts, but the execution. It was an impressive piece of work, well written, well reasoned and thorough in its address of the multitude of significant issues surrounding these innovations.
While I was not entirely persuaded by aspects of her approach, I was very impressed with Stephanie’s obvious concern for, and very real effort, in addressing the ethical aspects of her practice. She was acutely aware of the potential for clients being mislead or confused, of the potential hazards of the concepts, and went to great lengths to assure that everything she was doing was clearly explained.
My reaction was that a young lawyer like Stephanie reflected the best in innovation. I had serious doubts that others wouldn’t cherry pick the part of Stephanie’s concept that were easy and profitable, and ignore the parts that were difficult, onerous and might cause potential clients to shy away. Not every young lawyer would be as industrious and ethically concerned as Stephanie.
Belying this concern is the notion floating about among those who find the virtual law office model perfect for their situation that the restrictions of state jurisdiction and admission an archaic concept. One of the changes that legal futurists want to see happen is the elimination of admission by state in favor of national admission, thus making the limitations of state borders and the “tyranny” of state disciplinary rules an unpleasant memory. With the advent of the internet, the limits of physical presence no longer matter, it’s argued.
Missing from this facile analysis is that states have laws and procedures that differ from one another. The internet may allow a lawyer from Nebraska to scarf up clients in Wyoming, but it doesn’t enable them to know Wyoming law and practice, nor provide any measure of security to potential clients that they are competent to render counsel or representation there. Having tried cases in states across the country, always with local counsel at my side, I can attest to the reality that it is impossible to provide competent, no less zealous, representation without knowledge of local law, procedure and practice.
The panacea of eliminating state admission will certainly exist for lawyers who find it very convenient to exist virtually, but this is where the ethical concerns come into play. These lawyers think only of themselves. They say they are thinking of clients, as in the curious argument that “since I’m such a wonderful lawyer and my clients love me so very much, by making myself available and convenient for them to hire me, I’m doing clients a service.”
Aside from this point being entirely circular and self-serving, it’s unpersuasive. Not to the maker of the argument, or to others who, like the maker, want so dearly for the point to be true that they are blind to the flaws, but to the rest of the legal profession, young and old. We cringe upon hearing/reading irrational arguments. They scare us, that these arguments are being made by people who are admitted to practice law and hold the responsibility of other people’s lives and fortunes.
It scares us, young and old, because the arguments reveal something we fear, that there are lawyers who are incapable of distinguishing rational arguments, sound thinking, competent analysis, from idiocy. We know there are incompetent lawyers out there, lawyers we can’t believe could possibly survive law school, pass the bar, be allowed the awesome responsibility of a lawyer. We know they’re there. We are frustrated when their existence smacks us in the face. We’re here. We’re morons. Get used to it.
Then there are the vultures who have created businesses that prey on young, naive, ethically challenged lawyers, bolstering their vague comprehension of ethics by telling them that they are just as wonderful as anyone else, that experience is worthless, even counterproductive (look at those stupid old dinosaurs who don’t get it), and pushing them to ignore both the development of skills and the recognition of ethical concerns so that nothing stands in their way from overnight success.
They tell young lawyers what they want to hear. We all gravitate toward what we want to hear. We adopt it. We embrace is. Whether it’s blindness or myopia, these vulture take advantage of youthful exuberance by playing to their needs and prejudices. A point ignored, that I often say to young lawyers, is that if you are so brilliant and wonderful now, how much better will you be ten years from now, when you’re still brilliant and wonderful, but have a decade of experience under your belt?
The smarter ones stop dead in their tracks, realizing that this point is both obvious and in fundamental contradiction to what they’re being told by the vultures, that they are already the complete package and should ignore those experienced lawyers warning them that they aren’t ready for prime time. They realize that those experienced lawyers are them, ten years in the future. They realize, maybe for the first time, that experienced lawyers aren’t some breed of dinosaur, but just like them, only with experience.
A commenter here recently scolded me for being negative, telling young lawyers what they shouldn’t do, where she thought I ought to tell young lawyer how they could market themselves to become overnight successes. It was a particularly foolish comment, assuming that there is such a magic bullet. My advice to young lawyers has been offered here repeatedly, work hard, develop skills and always put your clients’ interest ahead of your own. That means we do nothing that might deceive clients or potential clients. It also means that you won’t achieve overnight success.
The young lawyers who want to embrace innovation because it allows them to engage in the practice of law under whatever terms best suit their needs don’t like my advice. As with the commenter, it’s as if it never happened. Don’t tell me to work hard, tell me how to get rich on the internet!!! And if you don’t, then you have nothing to offer me. They instead flock to others who will whisper the sweet words they want to hear.
The sense one gets is that young lawyers, busy ascribing malevolent motives to old lawyers to explain why we use ethics to scare them away from the things that will make them overnight sensations, are all a bunch of dunderheads. They can’t write. They can’t think. They have no grasp of ethics and no concept of what it means to be a lawyer. They are most assuredly not client safe.
But then, there are plenty of young lawyers, Matt Brown in Tempe, Keith Lee and Stephanie Kimbro, for example, who remind me that they aren’t all wrapped in their quest to promote themselves as something they’re not, and likely will never be given the poor quality of their writing, thinking and ethics. There are plenty of young lawyers who aren’t out to achieve immediate fame, wealth and prestige. It’s just that the self-promoters, the whiners, the deceitful, make sure they’re screaming the loudest.
It’s not about innovation, which may or may not be viable based on far deeper concerns than whether it has the potential to make a quick buck for a particular lawyer at any given moment. It’s not about old lawyers hating or scaring young lawyers, though a good scare on matters of ethics is critically impo
rtant to their realizing that ethics matters, both because it could spell the loss of their ticket as well as the more important reason, because lack of ethics harms clients.
This is about whether the future of the law lies in elevating the worst, most facile ideas of ignorant children, or developing the next generation who will bring dignity and competence to their profession and those we exist to serve. If this doesn’t comport with your view of the future of law, and for some it won’t, then I sincerely hope you find something else to do with your life. You do not deserve to be a lawyer.
Postscript: This post comes from the discussion around the blawgosphere started by Rachel Rodgers’ post at Solo Practice University. She’s been given a good thrashing for her efforts, yet appears to have learned nothing from the experience. But this post isn’t about Rachel Rodgers, per se, who, as marketers like to say, has diminished her brand. Rachel is but one young lawyer among many, even if she’s made herself the poster girl for this issue. Let’s assume that Rachel will never grasp the issue, and focus our energies toward others who have the desire and capacity to be better.
Rather, this is a post about all lawyers, young and old, for who hide behind the word “innovation” as an excuse to pretend that they can recreate ethics to justify whatever pleases them. They have the choice of being a Stephanie Kimbro, for whom ethics is a fundamental concern, or a Rachel Rodgers, for whom ethics is hurdle to circumvent.
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TL;DR. I’m getting ready for my first trial, a homicide prosecution in a jurisdiction I’ve never practiced in before. I think it’ll be good for my career. Besides, what’s the worst thing that could happen?
“Missing from this facile analysis is that states have laws and procedures that differ from one another.”
To be fair, missing from the bar exam is that states have laws and procedures that differ from one another. When I took the Alabama bar exam last year, the test was 80% multistate, and 20% state law. The state law section was all procedure, and very closely matched the federal rules (a few numbers are different, but the underlying principles don’t really change from state to state).
I studied the multistate materials, brushed up a little on federal civ pro, and spent about 2 hours looking over state law to learn a few key points. Super genius extraordinaire that I am, it should go without saying that I passed the exam with ease.
If your concern with a national exam is that people might be practicing without learning the local rules of procedure, you should have the same concern with state bar exams.
What would make the most sense is a national exam, similar to what we have now, but perhaps without procedure, and maybe also dropping criminal law. Then, let each state have a trial bar exam that focuses on procedure. You can practice in the state with only the national exam, but cannot practice trial law. The smaller exam could be offered more frequently, like the MPRE, and it would take much less time to grade and let people get admitted.
One aspect of taking a second bar exam that tends to get overlooked is that it’s really expensive. You have the fee for the exam itself, with a few nickel and dime things, like transcript costs, traffic records, etc. Then, you have the cost of an prep materials you’re going to use (if you stupidly got rid of them from the first exam because you didn’t anticipate taking a second one). On top of that there are travel expenses, in my case about $80 in gas, plus 3 nights in a hotel. After that, you have to pay your admission fee, and then shell out a few hundred more dollars for a mandatory professionalism CLE that just talks about prejudice (societal, not the legal term), why we shouldn’t tell lawyer jokes, Jersey Shore, auto-tune, and about 5 minutes of substantive training. Get out your back of the envelope, and you’ll see that can add up to several thousand dollars very quickly, a pretty big burden on a young lawyer, not counting the opportunity cost it taking 6-10 months between registering and being admitted.
It’s a big expense, a lot of hassle, provides little protection to clients, and there’s an alternative superior in pretty much every way.
I find it interesting that Ms. Rodgers writes an “Open Letter” and then closes the comments to that post. Why refuse to face the criticism?
I’m a new graduate and I wouldn’t dream of opening a practice without tons of help and advice from older, wiser attorneys. To be honest, the fear of making monumental mistakes should make any baby lawyer quake in her boots.
The fear of making monumental mistakes should all lawyers quake in their boots. We are entrusted with people’s lives. The responsibility is huge, whether one is young or old. We should never take it for granted.
You have opened my eyes. Based upon your experience with the Alabama bar examination and complete absence of practice experience, I am now moved to agree with your assessment that we should change everything. Plus, it’s expensive to take a second bar exam, and it will significantly eat away at the Cheetos budget.
If the argument in favor of state bar exams is that they protect clients by making sure that lawyers are familiar with the local rules, then that’s an argument based on a false premise. I’ve passed two state bar exams, without learning enough local rules to protect anyone’s interests.
Also, should add that I do have some practice experience, I had a BigLaw job for a while before getting laid off. I was admitted in NY, and dealing mostly with federal laws, and the laws of Delaware, Connecticut, DC, and a few foreign jurisdictions.
And, you know good and well that I don’t eat Cheetos.
That’s an argument in favor of making the state portion of the bar exam significantly harder. I’ve heard they dumbed it down to stop all the slackoisie whining. It appears they’ve gone too far and need to ignore the teacups who just took on $200k in debt and expect to be able to rise to national prominence by the end of the first year.
It’s an allegorical snack food. Your personal preference may differ.
I’d be all in favor of making state procedure a more substantive part of the bar exam.
But, requiring someone who’s been practicing for a couple years to retake the MEE? That’s counter productive. If you really want people to learn the state rules, don’t distract them with this other noise.
Also, ramping up how much local procedure you need to know also makes it more logical to decouple the procedure part of the exam from the rest. If you’re going to practice general corporate law and have no plans to ever see the inside of a court room except on TV, no one is being served by making you take a procedure exam. License people as solicitors, and have an additional licensing for barristers.
Since you’re already a multistate maven, what harm is there is having take such a gut exam? But your last point is more interesting. Lawyers are generalists by license. You may never intend to see the inside of a courtroom, but have the license to try a murder case as well as close a real estate transaction.
I agree with you that we should adopt the solicitor/barrister distinction, which would significantly change the licensure for lawyers. I also agree that there should be specializiation licenses. I’ve advocated these ideas for years. Want to guess who’s vehemently against it, because they wouldn’t qualify and it would impair their ability to be the most awesomest lawyer ever with 12 minutes of being admitted?
The harm is to other people who lack my superior MBE/MEE wizard powers, and have to invest a significant amount of time studying. I know it’s hard to comprehend sometimes, but there are other people in the world besides me.
I haven’t known any young lawyers to be against specialized exams/licenses. At least in the BigLaw world, the sentiment was generally a lot of people already hired by corporate departments annoyed they have to learn criminal procedure, and people going into civil litigation departments annoyed they have to learn property.
Young lawyers who can’t hack it would definitely be opposed to specialized licenses, but you could get a lot of support from the young lawyers who can hack it and who are looking for a way to signal to employers and clients that they’re better than the competition.
Problem is, the smart, talented bunch are a small minority. You’d have to trick the idiots into thinking they’d get the top certification under the new regime.
Scott: Very nice insight. I think Rachel’s blog makes one thing quite clear — she views ethics simply as a way for bar associations to maintain the status quo. It doesn’t look like she views ethics as a way to protect clients. I think that view is quite common.
What I think is lost specifically on Rachel is that ethical rules don’t, or at least shouldn’t, take into account the “status quo” or try and accommodate the lifestyle situations of lawyers. The ethical rules focus on questions such as, what is best for clients? What best serves the interests of promoting justice?
I absolutely agree that we have a professional obligation to act in our clients’ best interest at all times, even when failure to do so might not technically violate the ethical cannons. Candidly, I have only recently began to comprehend what a huge burden and responsibility that is. Not every lifestyle or financial situation can accommodate handling such a burden. Which is why the ethical cannons do not accommodate every situation…
A good point, Jordan, that lifestyle choices drive ethical decisions. Yet again, this confuses the core ethical concern for the client with situational ethics for the lawyer.
Amen to that.
I’ve argued that innovation — or, more accurately, embracing technology — is not a bad thing in and of itself. I don’t fault people for attempting to adapt to the use of the Internet, computers, possibly even social media into their practices. But it has to be done with perhaps even extra attention to ethics.
I also agree that young lawyers should listen to older lawyers and not be so quick to dismiss their concerns. That’s why I almost never make a move without going to at least two and sometimes more of the people I’ve come to trust.
At the same time, I don’t think someone is automatically wrong for trying something new. If that were the case, law and the practice of it would never evolve.
At any rate, thanks for continuing to make people — and I include myself in people — stop and think. After reading this, I may have to revisit my prior post on Rachel.
There are indications that someone who is reasonably thoughtful and relatively experienced can see pretty clearly, but might not appear anywhere near as clear to someone who lacks similar thoughtfulness or experience. There is a reason why guys like Bennett, Tannebaum, Gamso and I tend to agree with one another, and it’s hardly that we’re a mob. It’s because we’ve been doing this a long time and, despite some political differences between us, share an appreciation of the problems we’ve seen. When we quibble, it’s usually around the edges, not at the core. No one survives in this business without learning something about people.
Some people misunderstand our feelings about innovation. We don’t hate it, even though it might look that way from the outside. But we always think of the unintended consequences, the misdirected adoration, the inability to distinguish the end from the means. For every truly great innovation, there are a thousand 8 track tapes. We are constantly on the lookout for something innovative that’s real; it comes along very rarely. We’ve lived throught too many “next great things” to give every “new and improved” idea the benefit of the doubt.
When someone like Rachel Rodgers comes along, with her “innovation” built on a foundation of wiggly words, vague and meaningless rhetoric and the deliberate coverup of hard, cold facts with warm and fuzzy bullshit, it’s a no-brainer. Been there, done that. I note in your post, you write that she spent two years preparing to go solo. Did you realize she was a 2009 graduate? Crunch the numbers, Rick. She hasn’t been a lawyer for two years, yet she had you believing she was. She just made 2 years since graduation two months ago. And then there was a clerkship in between? And take a look at the types of cases she claims to have handled? Do the math. It doesn’t add up, no matter how kind you want to be to her.