It’s been a while since any bar association-type has asked me to be on a future of law panel.  My guess is that it’s because I’m unpredictable, a bomb-thrower type of guy. Most association types prefer to pack panels with friends, or at least people who won’t say things that hurt their feelings.  After all, what point is there in being a very important bar association leader if someone hurts their feelings?

Yet, somebody blew it when they put Toby Brown of 3 Geeks and a Law Blog on a panel for the National Conference of Bar Leaders on the future of the profession.

For those of you unfamiliar with how bar associations make decisions, I offer the following story:

If someone asked for permission to go to the bathroom, a bar would form a task force (or commission) to fully examine whether going to the bathroom was a good idea and to highlight all of the pitfalls around bathrooms. After 18 months they would issue a report stating that going to the bathroom is generally a good thing and should be promoted to those who need to go, but only if all of the potential negative impacts have been understood, limited and communicated to those considering bathroom breaks. The report would not actually authorize the request to use the bathroom. It would be left to the Bar Board to actually enact a rule permitting said activity. The Board rarely follows up as they are busy forming the next task force and would not want to take any heat for authorizing such a dramatic change.

In the meantime, the guy who made the original request either went, or died.

This is the best description of how bar associations work that I’ve ever read. This is destined to be a classic.  And most importantly, this is why they accomplish nothing.  I’m no fan of committees to begin with, but add lawyers to the mix and they bring committee-think to new depths of fail.

The worst part is that they not only don’t realize the failure, but they’re inordinately proud of themselves for their accomplishments. The only thing they can ever agree upon is giving themselves an award for being Leaders.

In Toby’s panel, a subject of discussion was Washington State’s Limited License Legal Technicians, or 3LTs as I call them. I’m a fan, which may come as shock to those who simplistically assume I’m against anything new.  I’m hardly against new ideas. I’m against bad ideas, whether new or old.

Listening to the discussion caused searing pain to shoot through Toby’s head (I’m just making this up for dramatic effect, but bear with me).

I sat there as long as I could listening to this. Finally I could take it no longer and interjected. I “suggested” that a failure to drive disruptions would lead to others moving in and taking over the legal market. With some internal fortitude, I was able to avoid using swear words.

It brought Toby to a painful conclusion.

After this experience, I have come to the hard conclusion: That is not going to happen. As smart as lawyers are, their training and experience have made them a reactive and dogmatic group. In their minds, the way they have been doing it is the only way to keep doing it. Anything else is a threat to the profession and their practice specifically.

As painful as it may be to sit in a room of self-proclaimed “leaders,” who by definition believe they embody the will of the profession because they are special (not realizing that they won their posts in bar associations because the smarter lawyers knew better than to run for office and be forced to sit in a room with “those” people), Toby is right.

If we look to bar associations and the official people who feel the need to hold offices, nothing will ever happen.  Lawyers, particularly the type in that room, are reactive and dogmatic. They’re risk averse, albeit with some reason. And they fear the unknown, also with good reason.

The alternative to being perpetually stuck in the past isn’t blindly leaping into the future. Two primary camps have developed, one refusing to budge off the old way and the other refusing to get real about the implications of change.

As the New Normal of the Future of Reinvent Law crowd gets louder and more insistent, their counterparts in the Luddite Bar Association stick their feet further in the mud. From the position of outsider, it’s obvious that their positions grow more polarized, more extreme.  And both sides have their virtues, though neither will concede the upper hand.

Change will happen, because that’s how life goes.  It can happen thoughtfully or be rammed down our throats, usually with some nasty unintended consequences.  There are problems, most of which are fixable, but not by the team sport of bar associations or the individual sport of tech loving.

Individualized solutions tend to favor niche interests at the expense of other niche interests, and there is nobody willing to take the long, broad view who simultaneously has institutional memory, experience with technology and the guts to take calculated risks, while putting self-interest aside.

So is the profession doomed, as Toby says? Nah. But the inability of the bar associations to show both brains and guts leaves the profession to the vicissitudes of fortune, which will likely be “disruptive” in bad ways, serving neither the profession nor the public very well.

It’s not there aren’t voices in the profession that are positioned to drive well-conceived, comprehensive change. It’s that nobody on either team wants to hear from them, because then their team won’t win and it will be very scary for all the official leader types who want to keep their grip on lawyers so they will build a statue of them someday.

And they are likely to say things that will hurt feelings on both ends of the spectrum.  Nobody is willing to endure their sensitive feelings being hurt, even if it means the profession won’t be doomed.  So it will be left to the breeze to blow in the future of law. Let’s hope it’s not totally awful.