Who’s Driving The Future Train At The ABA?

Ever wonder why the ABA never seems to reflect the thought, interests or approach of actual lawyers?  Carolyn Elefant, who wastes her time trying to be involved in such nonsense, explains:

Four years on the heels of its Ethics 20/20 Initiative, the ABA is once again trying to make itself relevant. This time around, the ABA has established a Commission on the Future of Legal Services , with a goal of inspiring innovation and leveraging technology to expand access to justice.  And guess who’s expected to bear the brunt of providing access to justice? None other than solo and small firm practitioners who already do more than nearly any other sector to make legal services available to ordinary folks.

You think I’m kidding? Would that it were so. But one of the issues on which the Commission is seeking comment is:

How can small law practices (e.g., solo practitioners, lawyers in rural communities, small firm lawyers, etc.) sustainably represent those who do not have access to legal services?

What’s more, we’re the only segment of the population to attract our own shout-out. There’s no mention of what big law attorneys or government lawyers or legal academics or legal tech start-ups can do to represent those without access to legal services. Only solo.

Given Carolyn’s focus on solo and small firm lawyers, her reaction to the ABA’s “what can we suck out of solos today” approach is no surprise.  What is a surprise, however, is who is pushing this agenda.

To be fair, however, it wasn’t just solos – but most lawyers – who even bothered to participate in the Ethics 20/20 initiative. The bulk of the input hailed largely from marketers and cloud-computing companies. And while these interests deserve a voice, they shouldn’t be driving the train.

This time around, I fear, the imbalance between vendors and lawyers will be even worse. Now, there’s a herd of investor-backed start-ups clamoring outside the ABA’s door to persuade the legal profession to jettison ethics prohibitions on non-lawyer ownership and outside investment. Who can blame the ABA for breaking bread with these fresh, new companies who can inject money into the organization with lucrative sponsorships. In exchange, these companies gain a semblance of legitimacy which in turn, helps them to push their platforms as “opportunities” for solos and smalls to access new clients while providing legal services at deeply discounted rates without ever gaining a stake in the client.

That’s right. While lawyers are hanging around being all lawyerish, all those alt law we-don’t-need-no-stinkin’-ethics businesses who publicly promote how they’re the future of law and privately seek to suck up their piece of the legal market without any responsibility for the competence, duty or ethics that constrain lawyers, are pounding away at the ABA.

We’re being played, boys and girls.  And the very official, committee-loving, ABA-joiner types are either too ignorant or too easily flattered to either see it or comprehend that they’re the tool of an industry that exists to suck as much as it can out of the legal profession before laying waste to our clients.

While guys like me often point a finger at the lawyer-apologist-deniers who are complicit in undermining the competence and ethics of the profession, they’re small potatoes compared to the new corporate interests that seek to destroy professionalism to suck some moolah out of the law. I just thought you ought to know.

11 thoughts on “Who’s Driving The Future Train At The ABA?

  1. Marc R

    Every time I forget why I never join the ABA, there’s a poignant reminder. I love being reminded of my lawyerly duties by someone giving a non-lawyer say over how I should spend my time.

    1. John Barleycorn

      Trade guild apathy can be a dangerous thing.

      And here the esteemed one is going out of his way with the “things you ought to know”.

  2. Carolyn Elefant

    The only thing one can hope is that the ABA remains irrelevant so that the recommendations of this committee (where I will have to waste time weighing in but I am a glutton for punishment) won’t see the light of day. Which is unfortunate because the ABA still has enough residual klout to focus/refocus the discussion on access to justice issues to begin to address it in a meaningful (or at least non-harmful) way.

    1. SHG Post author

      The ABA may be irrelevant to lawyers, but non-lawyers think it matters, so if they approve of something, non-lawyers assume they must know what they’re talking about. After all, they’re the ABA (woo hoo!!!).

  3. Bob Ambrogi

    I just posted a comment on Carolyn’s blog and I’ll say it again here. I think you are all totally missing the point of why this question singles out small firm lawyers. The key word in the statement is “sustainably” — how can solos and smalls “sustainably represent those who do not have access to legal services.” The issue isn’t, as Carolyn suggests, that the ABA expects small firm lawyers to bear the brunt of providing access to justice. The issue is just the opposite — that small firm lawyers do far too little to close the justice gap. It’s a uniquely small firm problem driven by the economics of small practice. It is tough enough for small firm lawyers to pay overhead and support themselves. Few can afford to provide any significant pro bono or low bono services. That is why the question focuses on sustainability. Can small firm lawyers help close the justice gap while still sustaining themselves and their practices? That is a legitimate and important question.

    1. SHG Post author

      I hope they’re paying you well to post this drivel, Bob. “Sustainably” doesn’t refer to how to sustain solo and small profitability, but how to sustain solo and small ongoing pro bono for the indigent. Or, as Carolyn says, how to make sure we keep giving even as our children go hungry and shoeless. Hell, the ABA hasn’t done squat about how solos and smalls can survive financially without any A2J, so you’re claiming this is about how to help them survive plus A2J? That’s ludicrous.

      As for solos and smalls doing “far too little,” I call bullshit. So Cravath is willing to take on the occasional M&A for the poor? Biglaw backs the occasional big name pro bono appeal? Solos and smalls take the million phone calls, consultations, from the poor, but the ABA doesn’t see it because we don’t do press releases? Where’s your cite, Bob?

      But you ignore the bigger question: society and lawmakers (the ones who adore committees like the ABA) keep piling on legal demands and needs, but society won’t pay the bill. Instead, they create the problem and expect lawyers to work for free to fill it. And the only lawyers who do so (because poor people don’t call Cravath for “just a question”) are solos and smalls.

      Maybe we need to issue self-congratulatory press releases with every phone call to show ABA wonks what we do, but we’re too busy helping people every day to spend out time patting ourselves on the back. And it’s still not enough, because officials guys keep piling burdens on ordinary folks with the expectation that its some lawyer’s problem to handle it for free, because we’re all driving around in our Ferraris in our spare time.

      And then they send out grocery clerks who write drivel like this.

      1. Bob Ambrogi

        I’m not saying that solos and smalls don’t do pro bono. I’m a solo and also president of our bar foundation and I’m well aware of the contributions made by solo and small firm lawyers. What I’m saying is that the justice gap is huge, and that the realities of operating a small business — which a law firm is — severely limit the ability of small firm lawyers to fill that gap. I’m not just talking about pro bono. I’m talking about the ability to charge fees that common people can afford. It isn’t happening. State after state — including your state of NY — has documented the severity of the justice gap and the inability of existing models for delivering legal services to fill it. Legal economists, also, have made this case, most notably Gillian Hadfield. See, for example, her article here: [Ed. Note: Link deleted per rules.], starting at page 15, where she discusses the problem of cost and the economic inability of solo and small firm lawyers to charge affordable fees. If you think someone is paying me to say that there is a huge justice gap and that the current models aren’t working to fill it, then you’re delusional. Even Chief Judge Lippman in NY has acknowledged this and that is, in part, why he has begun using non-lawyers to partially fill in some of the gaps. If lawyers were able to fill the justice gap, we wouldn’t have so severe of a gap. We have a legal services crisis in this country. Rather than use your great intellect to insult those who are trying to find answers, why don’t you get involved and help guide them to where you believe the answers lie.

        1. SHG Post author

          Aside from the ideas I’ve already offered (you know, my great intellect and all), you can’t get your head out of the grocery clerk’s perspective.

          I don’t suggest access to justice isn’t a problem (though I note you’ve totally abandoned your Biglaw is great and solos do squat marlarky). I suggest that it’s a societal problem, not a solo lawyers problem. Yet, committee-lovers like you contend that lawyers alone should bear the weight of it, and of lawyers, solos and smalls should bear the bulk of the weight.

          Why? We didn’t create this problem. Does the solo who spends significant time helping pro bono litigants get free gas at the gas station for his dedication to the cause? Does he eat free at restaurants? Do his kids get free shoes from Thom McAn? Just because it’s our services they need, because society as a whole demands a never-ending stream of new laws, rules and regulations requiring legal representation, it’s our burden to suck it up so the rest of society doesn’t have to bear the consequences of its insatiable desire for the perfect world?

          We have a legal services crisis in this country. Stop asking solo and small firm lawyers alone to pay the price to solve it.

          1. Bob Ambrogi

            Now you’re confusing me with the ABA. I agree with you that it is a societal problem and I absolutely do not believe that lawyers, alone, should bear the weight of it. My only point is that it is legitimate for the ABA future committee to look at how small firms fit in to this larger equation. I do not see that as singling out small firms unfairly, as Carolyn’s post suggested. My personal belief is that lawyers alone cannot ever solve this problem, and that broader societal reforms are the only route to closing the justice gap. Maybe the ABA, by looking at this issue more closely, will reach the same conclusion.

            1. SHG Post author

              Now you’re confusing me with the ABA.

              Might that have something to do with your enthusiastic support and defense of the ABA’s efforts? I think it does. If you agree with me that this is a societal problem, you can’t reconcile your “only point” that “it is legitimate for the ABA future committee to look at how small firms fit in to this larger equation.” There is no larger equation.

              The only appropriate role for the ABA is to demand that Congress either fund A2J or eliminate the burden it places on people. There is no logical connection between how solo and small firm lawyers can “sustainably” fix A2J and the problem of A2J unless we bear the burden of fixing it. If it’s a societal problem, then the ABA should deal with society and leave us out of it.

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