Entrepreneurial leadership

By Jeff R. Hawkins,
ISBA President, 2014-15

If we, the stewards of justice, expect to pass our stewardship along to future generations, we must genuinely consider every sacred cow as a potential sacrifice for the heritage with which our predecessors entrusted us.

Lawyers have been innovative and disruptive change agents in this country’s most pivotal moments. For two examples, consider the lawyers who pleaded their case against tyranny in the Declaration of Independence and an Illinois lawyer who ended slavery through the Emancipation Proclamation.

The “disruptive innovation” topic popped up around the American Bar Association’s 2015 Annual Meeting in Chicago Aug. 1-3. Members of the ABA Commission on the Future of Legal Services (the “Futures Commission”) participated in panel discussions throughout the meeting, including a provocative National Conference of Bar Presidents (NCBP) panel discussion featuring Connecticut lawyer Frederic Ury of the Futures Commission; Michigan State University College of Law Prof. Renee Newman Knake, co-founder of  the ReInvent Law Laboratory ; Dan Lear, Lawyernomics blog contributor and Avvo’s director of industry relations; Michael Mills, co-founder & chief strategy officer of Neota Logic; Tom Rombach, president of the State Bar of Michigan; and John Suh, LegalZoom’s chief executive officer. The ABA House of Delegates concluded its first day with “TED Talks” from several speakers, including provocative remarks from Avvo founder Mark Britton. Here are a few comments that surfaced during the aforementioned NCBP panel discussion and TED Talks (I’ve paraphrased some of the comments):

  • “Legal service consumers care more about cheap than good unless they are getting services from lawyers, from whom they expect services that are cheap and good.”
  • “Zillow (http://www.zillow.com/) is taking the real estate business from realtors; Uber (https://www.uber.com/) is doing the same thing to cabdrivers; and Airbnb (https://www.airbnb.com/) is crowding the hotel business. Technology-driven disruptors are changing the rules by which we live, and lawyers are as vulnerable as any other profession.”
  • LegalZoom’s John Suh said, “Technology-enabled lawyers is the future of delivery of legal services. The legal profession can be too insular. It’s not software versus lawyers. It’s technology-enabled lawyers. Work with us. Lawyers should think structurally about collaboration. You need a multi-talented team. Think structurally about collaboration. Giant talents are great, but you don’t need a team of five centers. When looking to fix large structural issues, my first instinct is to get capital and form the right team.”
  • Avvo’s Mark Britton told the ABA to “get rid of UPL if you want innovation and access to justice (see more comments by Britton and his fellow speakers in an ABA Journal article at http://ow.ly/R6AQc ).”

Most lawyers in the crowd rejected suggestions from the legal profession’s unregulated competitors to eliminate prohibitions against the unauthorized practice of law. However, almost everyone agreed that the current regulatory system hobbles lawyers and prevents them from displacing their unregulated adversaries. Most people also agreed that our courts need relief from pro se litigation and few of the existing legal service delivery models provide adequate solutions.

The bench, bar and legal education academies face integrated, existential threats. The bench is fighting a pro se litigation epidemic that clogs our courts. The bar faces the economic challenges already described in this article amidst the American economy’s transformation from industry to service. Law school admission applications have dropped by 50 percent in the past six years, forcing law schools to choose between admitting fewer students to maintain admission quality versus relaxing admission standards to maintain revenues necessary to support the cost of legal education. These three problems are swirling in a death spiral that will only compound each problem’s severity if we do not disrupt these trends.

We heard many calls for lawyers to provide more pro bono service, but I am unaware of any scientific studies supporting pro bono service as a sustainably effective pro se litigation intervention. In fact, anecdotal evidence suggests that the “do it yourself” culture and a general aversion to pay for legal services may be growing additional pro se problem factors. A senior Greene County Bar Association member told me that a client referred to him recently through a local pro bono referral service earned more than $2,000 per week (the program has no poverty screening requirements). My conversations this year with large-firm and small-firm lawyers across Indiana confirmed that increasingly savvy clients prefer low-cost legal services to high-quality legal services.

Most reputable lawyers provide pro bono service because our mentors enculturated us to do so. Unfortunately, many of us know lawyers that would qualify financially as pro bono recipients. When I spoke earlier this year at the ISBA’s Women’s Bench Bar Retreat in Culver, Ind., a northwest Indiana lawyer told the crowd that a physician in her community barely survives on $25,000 per year. I suggested to the crowd that if we think physicians earn more money than lawyers do, and if some physicians were subsisting in dire financial straits, we must have lawyers drowning in poverty. If you practice in a small community, you probably know at least one such floundering lawyer.

Jim Dimos and I took small steps over the past year to provide some relief for our embattled profession. We redirected the ISBA’s Legal Ethics and Lawyer Advertising committees to propose revisions to the Rules of Professional Conduct (RPC) and the Admission & Discipline Rules (A&D Rules) in response to the controversial private reprimand issued in what some Indiana lawyers referred to as the “Law Tigers case” (case text is available in PDF at the Indiana Supreme Court website at: http://ow.ly/R6BO1)  Those committees will advise the ISBA House of Delegates at this year’s Annual Meeting in French Lick to seek specific changes in the comments to RPC 7.1, the rule text and comments of RPC 7.2, and the rule text of A&D Rule 23, Section 10.

Modest revisions of the RPC and the A&D Rules that retain antiquated practice restrictions are like bailing water from a sinking rowboat with a teaspoon – expending great energy with little effect. Moreover, they saddle officers of the court with burdens that do not encumber nonlawyer providers of unregulated legal services. If readers will indulge my editorial license with the understanding that my finger points toward myself and every other holder of an Indiana bar license, law practice regulation in most states resembles a modified version of this Christian scripture (my additions appearing in square brackets): “You strain your water so you won’t accidentally swallow a gnat [professional misconduct], but you swallow a camel [unregulated practice of law by nonlawyers].” Matthew 23:24, New Living Translation (NLT) of the Bible.

I conclude this, my final “President’s Perspective,” with a challenge to the bench, bar and legal education academies. If we, the stewards of justice, expect to pass our stewardship along to future generations, we must genuinely consider every sacred cow as a potential sacrifice for the heritage with which our predecessors entrusted us. My successor, Carol Adinamis, has advised me that she intends to pursue these daunting problems during her ISBA presidency. I invite the bench, bar and legal education academies to join Carol in that noble pursuit of sustainable justice – even if some solutions disturb us. We cannot defend justice if too few defenders remain standing, so let us dig deeply and discover the disruptively innovative perspectives that we and our progeny must embrace to fulfill the oath of attorneys as entrepreneurial leaders.

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