ABA Hops Aboard The Speeding Train As It’s Crashing

For more than a decade, early advocates of the Reinvent The Future of the New Normal of Law have been telling lawyers that the end is near.  The preferred analogy was that technology and alternate models for the practice of law were a speeding train, and that if we didn’t hop aboard, we would miss it.

Some of us have been watching this train all along. We watched as those shouting their glorious predictions of future greatness fell off, never to be seen again. Lexblog’s Kevin O’Keefe notes that after a decade of attending LegalTech, the view of the midway is filled with fresh young faces.

The exhibitors are getting increasingly younger. Take that from someone approaching 60 way too fast. I often wonder though if the these people selling know as much about their product and what it offers as the lawyers, tech and information/knowledge management people they are selling to.

If you read between the lines, what Kevin is saying is that the fresh young faces of ten years ago are gone. Nobody talks about failure. It disappears in the ether, only to be replaced by the next fresh young face filled with the promise of future greatness.

That speeding train?  It never went anywhere. It crashed. Not a big, loud noisy crash, but a slow, painful, silent crash. And that crash is still happening.

So naturally, as it became clear to those who have been watching this slow-motion train wreck happening, the American Bar Association finally hopped aboard.  The ABA is nothing if not the law’s caboose, the trailing indicator of thought and action. At its mid-winter meeting, the ABA House of Delegates approved Resolution 105.

A divided American Bar Association House of Delegates approved Monday a group of model regulatory objectives for the delivery of nontraditional legal services that had both sides of the issue debating whether it opens the door for expansion of nontraditional legal services.

Debating? The resolution seeks to provide a framework for approval of non-traditional legal services. For those who aren’t clear on what that means, it’s a euphemism for law practiced by and owned by non-lawyers, delivered using technology and without recourse. The ABA had two choices. Condemn non-lawyers on the internet taking money from unsuspecting clients, or enable it.

The decade of cheerleaders for non-traditional services must have still been ringing in the ears of those delegates who, like an old man who doesn’t realize how ridiculous he looks in bell bottoms, pretend to be on the cutting edge. If they had a clue, they would realize that the train not only passed them by already, but had crashed.  So there they were, a decade late, hopping aboard the crashed train.

The Resolution’s criteria aren’t terrible. In fact, they’re quite pedestrian for the most part.  The problem is that the ABA decides to enable the non-lawyers to sell snake-oil at all.

ABA Model Regulatory Objectives for the Provision of Legal Services

A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system

One consideration worth noting is “J,” where the ABA tries to double down on its fashionable coolness and shed its historic, and well-earned, reputation as a stodgy old white man’s club. Are they suggesting that non-lawyer ownership should only be approved if it’s 13% black and 1% Pacific islander?  Can we split fees, as long as it’s with women?

What does this silliness mean?

The resolution acknowledges the changes in the legal marketplace, such as Rocket Lawyer and limited license legal technicians in Washington state, and sets out 10 regulatory principles that each state’s highest court be guided by as it assesses existing regulatory framework and any other regulations related to nontraditional legal service providers.

“We must embrace change in terms of how it will help the public that we are sworn to serve,” said Judy Perry Martinez, who chairs the ABA Commission on the Future of Legal Services. She added the resolution is “neutral” to the concepts of alternative business structures and fee splitting.

There is no such thing as neutral, and the committee that propounded this resolution is dedicated to facilitating the train wreck.

Easy access to affordable legal services is critical in a society based on the rule of law. Yet our courts are seriously underfunded. Legal proceedings are growing more expensive, time-consuming, and complex. Many who need legal advice cannot afford to hire a lawyer and are forced to represent themselves.

At the same time, technology, globalization, and other forces are transforming the ways legal services are accessed and delivered. Familiar practice structures are giving way in a marketplace that continues to evolve. New providers are emerging, online and offline, to offer a range of services in dramatically different ways.

Sounds pretty darned rosy, provided you haven’t been paying attention to the train. If you read these sentences and say to yourself, “but these are non-sequiturs, contradictions, that make no sense,” you’re not missing anything. It’s not that there aren’t problems, but that there aren’t simple solutions, and the ones being raised in glowing terms aren’t about serving the public, but about skimming money off the top of the “legal space” with happy-face marketing pitches to deceive the public and grab a quick buck before they destroy people’s lives.

And there, at the very back of the train, is the ABA caboose, with its clueless and desperate sycophants smiling and waving to show how relevant it is in this new world of technology and law, as the front of the train crashes.

A young lawyer may ask why she bothered to go to law school, since that would seem a terrible waste of time, money and opportunity, given that the American Bar Association’s resolution normalizes a future where someone can profit off the need for legal services without any heavy lifting. The best answer to the question is that the ABA no longer matters to the bar or society.  It has reduced itself to irrelevance by pandering to the latest fashion trends, forsaking whatever purpose it once had.

This isn’t the end of lawyers. It’s the end of the ABA.

13 thoughts on “ABA Hops Aboard The Speeding Train As It’s Crashing

  1. Richard G. Kopf


    You and I walked uphill both ways to get to school. We ate lard sandwiches, and we were happy for the sustenance.

    The ABA has become irrelevant because the practice of law, writ large, is very much like the practice of selling shoes now. A lot of shoe salesmen and saleswomen are fine people but they are not and never were professionals. In fact, the word “professional” as applied to lawyers has become a quaint anachronism. The old and venerable ethos is largely gone. And, the band plays on.

    All the best.


    1. SHG Post author

      In the snow.

      I hear from many lawyers who refuse to accept that law is no longer a profession, who believe in their duty to put client ahead of self-interest. The ABA can’t make those of us with self-respect and respect for our obligations give it up. We can, however, give up the ABA. With pleasure.

    2. losingtrader

      Yeah, but as soon as you all die off and all the judges are the kids who don’t know anything and can’t otherwise find a job, everything will be fine.
      See how easy that was?

  2. EH

    The only reason the ABA can do this level of BS is because it’s deliberately set up like a republic: all of the important stuff happens in committee, so the individual members have little power. The more that they make power obscure, the less foundation it has.

    There’s no reason that the ABA can’t poll members on substantive issues like “should we promote non-lawyers doing law?” The fact that it chooses not to is yet more evidence that the elite suspects it would be shot down.

    1. SHG Post author

      While I don’t disagree, there are some other factors at work here that need to be considered. First, ABA committees have long been captive to special interests. Who else would want to be on a committee? In particular, see the committee on law schools.

      Second, the personality type of lawyers who seek involvement with the ABA. It’s not just the time and money wasted, but wanting to hang out with others of that ilk. Too many feel some compulsion to be “official,” like the kid nobody liked who wanted desperately to be class president.

      1. JBD

        Yeah, we sure dislike those people who like to feel official, don’t we, Admiral.

        Perhaps it’s your history of lard sandwich intake that drives your fondness for maple bacon donuts.

      2. EH

        Ha. Were you ever a member? I was!

        When I first graduated it seemed like the thing to do. I think that’s a pretty common theme, or at least it was back then. Diploma: Check. Federal Court admission: check. Mass. Bar and ABA membership: check. If you had asked me “why bother with the ABA?” I’d probably have said “it sounds like it could be helpful, and lots of people say to try it.” When you’re a newbie, you are forced to rely on advice, and some of it is bad.

        I even got suckered in enough to attend an ABA conference, not knowing at the time how full of crap it would be. In retrospect I’m unsurprised that I paid good money to have a lot of people try to sell me shit. (My least favorite was listening to Alexis Martin Neely sell her book and advise us to lie to clients, all at the same time.) Oh well, live and learn….

        It’s a pity. It would be a nice thing to actually have a functional, competent, ABA. I’ve long since let my membership lapse, though; the current ABA sucks.

        1. SHG Post author

          I think every law student gets one free year upon graduation, and since the price is right, why not? That the ABA would have anything to do with Alexis Neely says all that needs to be said about the ABA.

  3. dm

    If this resolution becomes the norm for courts in my state I’m going to organize a firm of “sovereign citizens” to provide legal services. Admiralty law should play well in landlocked Colorado (at least as well as it works out for “sovereigns” in NY, CA, FL, etc.). I wonder if the ABA will approve?

  4. Thomas

    Sir, howdy. As the ABA slowly flat-lines in regards to a membership revolt and a rise in mass-declining of free offers, in efforts to assist the non-lawyer niche and lawyers alike to all-get-along, this non-lawyer took a few inititive(s). Of course someone will say it’s stupid, and I’ll simply, yet, politely forward them to GFY in the corner. Stupid or not, it had to be done. The death-spiral of the monoploy claiming all things considered ‘Legal’ is “Ours” is being investigated as a mass-suicide. R.I.P.

    Enter – #1. *The American Non-Lawyer Association – ANLA ™ Membership is limited to Non-Lawyers.
    Website is under construction.

    *Note: the rest will be save for relavent SJ posts that will include links to old dusty SJ postings. Unless you force my hand.
    Hints – TALPA & TTLPA. You’ll agree that these two will assist in saving the legal profession from its self in more ways than one can count.

  5. marc r

    That’s why the ABA is reduced to telemarketing calls asking “what should we do to attract lawyers like yourself to become members?” The only answer is “start upholding the professional duties and ethics of lawyers rather than encouraging a race to the bottom so fast that even unemployed lawyers get shunned for cheaper non-lawyers.”

    You don’t see the AMA advocating that due to increased health care costs patients should have cheaper options. “Dr.” Smith, 25 credits deep on Udemy including a message board lab, will never be allowed to help fill out non-existent “medicalzoom” pre-surgery plans. You can’t pretend to uphold ethics and then say those bound by ethics are too pricey so let’s let those untrained, and unbound by a high code of conduct, take over since courtroom advocacy is pricey.

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