Vol. 29, No. 11
CBA President's Message to Members
Where Are We Headed?
by Dale R. Harris
I believe that 90% of white-collar jobs in the
U.S. will be either destroyed or altered beyond
recognition in the next 10 to 15 years.
If Tom Peters’ recent prediction1 doesn’t get your juices flowing, then perhaps these opinions about the future of the legal profession will:
. . . I feel as though the lawyers of the country are like passengers on the Titanic. . . . [T]he music is playing and the champagne glasses are tinkling, yet . . . practitioners in their momentary bliss are oblivious to the [icebergs] ahead.2
Our profession faces quantum change. I believe lawyers are like the great buffalo of the 1800s, locked in a stampede for extinction. Is the cliff two years away or five. . . . I believe at least six out of 10 American lawyers will go over the cliff.3
As I have read and listened to these and many other points of view over the past few months, I have been persuaded that our profession is on the brink of dramatic change and that we—all of us—need to prepare for the changes before they just happen to us. It would be a big mistake to assume that it will always be "business as usual"; that the public will always want and need lawyers to do what lawyers have always done in the ways they have always done them.
Facing the Challenges
I believe the legal profession will be forced to make significant changes if we hope to meet a number of serious challenges confronting us as we go forward into the twenty-first century. These challenges go to the very core of what it means to be a lawyer: challenges about how we deliver services, what services the public will want and need, and who should deliver them.
Are Lawyers Becoming Irrelevant?
One such challenge is presented by the growing evidence that lawyers are becoming virtually irrelevant to large segments of the public. Studies and surveys regularly tell us of widespread perceptions that lawyers are too expensive, too slow, too self-interested, too confrontational and, perhaps worst of all, not trustworthy. Too many people believe that in an adversarial system, lawyers will do or say whatever it takes to win. If not reversed, these perceptions will cast long shadows over the future of our profession. Chief Justice Thomas Zlaket of the Arizona Supreme Court put it bluntly:
People aren’t going to tolerate this profession any more. Most people cannot afford [our] services. . . . People don’t think about what they cannot afford. American people will let this profession go without a whimper.4
These are dire predictions, but the evidence is rather clear that increasing numbers of people are already simply bypassing lawyers. For example, according to the Governor’s Task Force on Civil Justice Reform,5 56 percent of the domestic cases filed in Colorado in 1999 were pro se. (In Denver, the number was 62%.) Of all the civil, non-domestic cases filed in district court in 1999, an alarming 32 percent statewide and 34 percent in Denver were filed pro se.
Pro se filings put an enormous strain on the system to ensure that all parties—those appearing pro se and their opponents who are represented by lawyers—get a fair shake. But there is little reason to believe this trend will subside. It probably will accelerate. We simply have to recognize this reality and find better ways to accommodate it.
People also are bypassing lawyers by turning to what I call the "new competition"—non-lawyer providers of services once thought to be services only lawyers could or should provide. Estate planners, financial planners, accountants, investment brokers, environmental consultants, and many others provide such services today. This development raises fundamental questions about the definition of "practicing law," and about the related issue of the unauthorized practice of law. But it seems to me the real questions that we need to answer are these: What is in the public interest? Do these non-lawyers provide a benefit or pose unreasonable risks to the public? If they deliver quality services at a reasonable cost, can we justify insisting that only lawyers should be providing these services?
The related subject of multidisciplinary practice ("MDP") raises similar questions: Is there continued justification for denying the public the option of obtaining legal and other professional services from the same firm? These are not easy questions, but we must address them head on.
The Importance of Diversity
Another challenge is the reality that our profession does not reflect the diversity of the public we serve. Recent census estimates indicate that people of color comprise approximately 22 percent of Colorado’s population.6 People of color make up more than 30 percent of the whole nation’s population. Nevertheless, nationally, the legal profession is close to 92 percent white. I do not have statistics for the profession in Colorado, but they probably are comparable. We simply must close that gap. We have to find effective ways to encourage more minorities to enter and stay in the legal profession. It is the right thing to do, and it is necessary if we hope to remain relevant to an ever-changing public.
Technology is Changing Everything
A third challenge—and the one often focused on by those with dire predictions for our future—are the changes brought about by technology. We all know how technology has affected our daily lives. We can do things that most of us never dreamed of just a few years ago, and we can do them at speeds unheard of and with incredible accuracy. The gradual disappearance of traditional law libraries and the project that will make electronic filing available in courts across the state7 are current examples of the impact of technology in our professional lives. With computers and cell phones and related gadgets, we now can practice law from almost anywhere at any time. The "virtual office" is virtually here, and there is talk about the possibility of virtual courthouses and virtual trials.
Of all the implications of the technology revolution, the phenomenal arrival of the Internet in the past five years is having the most profound effect. It will force us to rethink how we do everything. There is an incredible array of legal information now available to us as lawyers on the Internet. But I believe that the reason the Internet will revolutionize the way we practice law is because that same information also is available to the public. No longer do lawyers have a "lock" on legal information. Consumers can go to dozens of websites today for legal assistance. Some websites provide legal documents (e.g., www.uslaw.com or www.mylawyer.com), which, according to the promos, "draft [themselves] automatically." Others provide referrals to lawyers in specialty areas (e.g., www.mycounsel.com) or to lawyers offering their services for "low, flat fees" (e.g., www. americounsel.com). Still others allow consumers to post their legal problems and then receive bids from lawyers who want to represent them (e.g., www.sharktank.com).
The widespread availability of legal information will simply add fuel to the "do-it-yourself" craze that already has a full head of steam. Even if our clients don’t decide that they don’t need us at all, they will be better informed and more likely to insist on being actively involved in the handling of their own legal problems.
The bottom line is that technology—paticularly the Internet—holds great promise for making legal services available and affordable to many who now have little or no access to those services. But it also confronts us with difficult ethical and commercial issues about practicing law in multiple jurisdictions and the continued relevance of a fifty-state scheme for bar admissions and regulation.
These are just some of the challenges we face as a profession. They can either be threats or opportunities, depending on how we view them and how we deal with them. But the point is this: we need to be players, not spectators in this new ball game. Keeping our heads firmly buried in the sand is not a viable option. We should be leaders in managing these changes. If we don’t take a leadership role, others will shape our profession for us, and we may not like the results.
1. Peters, "What Will We Do For Work?," Time Magazine (May 22, 2000) at 68.
2. Reed, "As I See It; The Legal Profession is Aboard the Titanic, Not the Good Ship Lollypop," Altman Weil Report to Legal Management (May 1999) at 7.
3. Robinson, "Is the Law Profession in a Stampede to Extinction?," New Hampshire Bar News, Vol. 10, No. 13 (Dec. 1, 1999) at 4.
4. Reported in Bar Leader Magazine (Fall 1999) at 18.
5. Final Report, Governor’s Task Force on Civil Justice Reform (July 2000), Exhibits 4 and 5.
6. Reported in Denver Rocky Mountain News (Aug. 30, 2000) at 28A.
7. See Loftis, "Colorado Statewide Electronic Filing," 29 The Colorado Lawyer 19 (Nov. 2000).
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