The Amazing Transformation of the Legal Profession and its Future
Rapid change in the legal profession, and the impact of new technologies, has been a subject of on-going discussion and work by various State Bar associations and by the Association of Professional Responsibility Lawyers and ABA. The purpose of these exercises is generally to address the impact of legal ethics rules on the delivery of legal services and to determine whether some of those rules need to be revised in order to allow new forms of delivery of legal services to emerge. Or so conventional wisdom goes.
It's helpful to keep in mind when deliberating on these issues that the legal community is reacting to what has already happened and is happening in the legal marketplace. AVVO, LegalZoom, SuperLawyers, Chambers, Martindale Hubble and a plethora of legal matching and marketing services operate today, and many of them have been around for years. Legal regulators are not making policy to shape the future, they are merely reacting to what is already happening and shaping the rules accordingly. This is why regulation in general, and particularly legal regulation, always lags behind what is already happening on the street.
It is certainly time to update the ethics rules across the country to eliminate rules and regulations that serve primarily protectionist interests without jeopardizing rules which define the profession and serve the public interest.
Truthful, non-deceptive advertising is in the public interest. Deceptive or untruthful advertising is not. This is why the American Bar Association, led by the work and recommendations of the Association of Professional Responsibility Lawyers and California attorney Mark Tuft, revised lawyer advertising rules to focus on this core concept. Too many state lawyer advertising rules contain vestiges of local protectionist regulation. States should be encouraged to rethink and adopt more common sense legal advertising rules. Regulations which appear to be ignored and that are impracticable to enforce are extremely corrosive to the public interest and slowly detract from the credibility of an enforcement scheme.
It is in the public interest, for example, that attorneys properly safe keep property and money entrusted to them. Public confidence in the legal profession, and by extension, the legal system in general, is required and fundamental. Misappropriation of client money and property presents an obvious threat to the public interest. It is an appropriate matter for attorney regulation and discipline.
On the other hand, if one assumes that lawyers have been properly trained in law school to understand what it takes to be a competent lawyer, to appreciate the bounds of their knowledge, and to know when they need experienced assistance or additional learning, it is not necessarily in the public interest to prevent a lawyer licensed to practice law in Tennessee from giving legal advice to a North Dakota resident on a matter of North Dakota law.
Thus, rules limiting the ability of an attorney licensed in one state to practice law in another state need to be carefully examined. Over the years, repeated attempts have been made to address lawyer mobility and there has been incremental progress. It is probably time again for more progress, because, every day, lawyers are already practicing law across state lines and have been doing so for years. It’s time, once again, for regulators to respond to the demands of the legal marketplace, and to update their rules to reflect what is already happening.
Splitting fees for legal services between lawyers and non-lawyers is another tricky area. In theory, as long as we have a system that presumes an attorney has special knowledge and expertise, and needs to be the actor in control of legal analysis and recommendations, then it is in the public interest that independence of legal judgment and control over legal matters remain with the attorney. But this does not mean that fees for services cannot be divided with others who provide some value to the service being performed.