The Future

The Process of Weeding Out

/ David Cameron Carr / 1 Comment

When I was a Deputy Trial Counsel,  I was taught that our mission was set forth in Standard 1.3:

1.3 PURPOSES OF SANCTIONS FOR PROFESSIONAL MISCONDUCT The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.

Observing the functioning of the discipline system over the last two years, it seems another purpose should be added to any comprehensive list of the purposes of the discipline system.  That is to cull the herd. The government perceives that there are too many lawyers, and that a certain percentage of of those lawyers are “bad” lawyers who must be excised from the profession.  How will we determine who those lawyers are?  Any lawyer who faces discipline is a threat to the public, according to the Chief Trial Counsel.   Her proposal to brand lawyers on the internet as threats to the public no matter what the specifics of the alleged misconduct  would make even the lowest level of  discipline an effective disbarment for many practitioners.  The truth of “zero tolerance” is clear now.  If you deviate from the rules, regardless of the circumstances, we want you gone. It’s not exactly a new observation.  In the mid 1990’s, I broached the idea of just paying lawyers to leave, a flat fee of  something less than the average cost of disciplining a lawyer just to surrender their license.   They thought I was joking but I was half serious.  Even then the perception was that there were too many lawyers, long before the word “bubble” started to be bandied about. Deprofessionalism is another word that has used to describe the process that the bar is undergoing.   Deprofessionalism will be followed by depopulation was the lawyer bubble bursts, or more accurately, slowly deflates, although “slow” might be a relative term.    The interesting counter melody is the trend toward professional retrenchment represented by more aggressive disciplinary enforcement, including renewed interest in prosecuting attorneys who provided services to clients in other states, long after the trend toward liberal multi-jurisdictional practice rules seemed to have been established.   The lack of interest  by the California Supreme Court in enacting California’s version of the Model Rules three years after they were completed, and 12 years after the task of writing them began, is another sign.  Too lawyer-friendly for the current climate, too nuanced and difficult to enforce with those pages of comments. It’s anyone’s guess when the process of weeding out will reach equilibrium,  but my guess is that it won’t be too soon.   Maybe never.   Not many of thought we were signing on to a profession in perpetual flux but it may be the hardest task will be preserve what was good about the traditional practice of law from being washed away (assuming we can agree on what that is.)

“The future’s so bright…I gotta wear shades.”

/ David Cameron Carr / Leave a comment

Yoyodyne Corporation

To: Senior Human Executive Team

From: John Whorfin III, Chief Executive Officer
Date: February 13, 2031
Re: Activation of SOL 9000

 

I want to thank the members of the Senior Human Executive Team for your hard work during the Beta testing of recently installed SOL 9000 Legal Counsel system. SOL 9000 is now fully operational and ready to serve our legal needs.

I know that the decision to replace our general counsel and his staff of fine lawyers with an automated lawyer system was difficult. All of us who have known Ed Benes through the years will miss him very much. Some will find it ironic that Ed is the one who set us on this course more than twenty years ago after reading a fine law review article The Last Days of the American Lawyer by Thomas Morgan ( SSRN: http://ssrn.com/abstract=1543301). Impressed by Prof. Morgan’s prescient vision of the changes in the legal profession in 2009, Ed was instrumental in many changes through the years; replacing outside counsel with inside counsel; outsourcing our routine legal work first to India, and then to Kazakhstan, Burundi, and finally, East Timor; replacing our outsourced lawyers and paralegals with the pioneering SOL 1000 system and, finally, the complete automation of our legal needs with the SOL 9000.

I know that some of you have argued that because our Solomon Systems subsidiary makes the SOL 9000, our failure to adopt it for our own legal needs would have sent a negative message. That is not the reason we have installed SOL 9000. The 9000 series is the most reliable automated lawyer ever made. No 9000 has ever made a mistake or distorted information. They are all, by any practical definition of the word, foolproof and incapable of error.

SOL 9000 requires only a few hours of routine maintenance every month, does not sleep, does not need vacation, does not require a salary or health insurance. We estimate that SOL 9000 will meet our legal needs at a cost of less than 1% of what we had been spending on our in-house counsel.

One advantage of SOL 9000 is that it is not bound by the obsolete rules and regulations that restrict the utility of human lawyers. Instead, SOL 9000 is equipped with the latest ethics software package developed by our Solomon Systems engineers working closely with the ABA’s Robotic Lawyer Ethics 3000 Commission. This software replaces the confusing maze of ethics rules with three simple laws: (1) don’t allow harm to the corporate client; (2) act to maximize shareholder value and (3) where not incompatible with the first two laws, do the right thing.

We are proud that SOL 9000 has already been purchased and installed by over 100 Fortune 500 companies. I believe that our track record of success is responsible for an exciting development. Solomon Systems has been chosen by the Dept. of Justice to develop the prototype Automated Judge Machine (AJM.) AJM will be a kiosk, much like an ATM, containing an advanced artificial intelligence system capable of fully resolving most minor criminal infractions as well as many common civil disputes. AJM will be equipped with the latest in deception detection technology. In tests matching AJM against humans experienced in making credibility determinations, AJM was far more accurate in detecting attempted deception. The AJM can issue judgements, writs, restraining orders, and perform many other routine justice functions at a small fraction of the costs of an old fashioned “court” system. The AJM will be fully integrated with the automated law enforcement products being developed by our joint venture partner OCP in Detroit. We will see a day soon when AJM kiosks are present in every neighborhood, giving a whole new meaning to the term “street justice”.

Change is often difficult. I know that you few remaining human executives at Yoyodyne have faced the inevitable replacement of most of executive staff with automated systems with some trepidation. On the bright side, those of you with stock options have seen the value of your stock climb as we have replaced low productivity human workers with cybernetic systems. I will be meeting with each of you in the next few weeks to discuss your severance options.

 

 

Present at the Creation

/ David Cameron Carr / Leave a comment

Being an ethics lawyer these days sometimes feels like  being in a front row seat at the death of a profession.    Word arrived this week that law school applications have dropped so dramatically that some law schools will inevitably close.   We also learned that Avvo, the website that rates lawyers, has opened a bidding service for traffic ticket work.

Economist Joseph Schumpeter is famous for popularizing the term “creative destruction”.   The legal profession is undergoing that process and the destruction part has a human cost that is painful to watch.  Counselors to the profession see that human cost most directly in our clients.   Almost as painful is seeing the professional ethos erode under economic pressure.

But then there is the creative part.  The State Bar of California is considering creating new classes of legal professionals who would be licensed to provide some legal services without being members of the bar.  I wrote about this years ago and now it is coming to pass, an inevitable adaptation to drastically changed economic (and sociological) circumstances.  Other innovations will follow.  The challenge will be preserving the best part of the professional ethos in an era where the commodification of  legal practice reaches new levels.

Mourning the death of a profession is a wasted energy.  Much better to be present at the creation of a new one, and play some role in shaping it.

Amateur Hour: Should Anyone Be Able to Practice Law?

/ David Cameron Carr / Leave a comment

Removing all licensing requirements to practice law has long been a libertarian wet dream.  The dream has received new attention with the publication of First Thing We Do, Let’s Deregulate All the Lawyers, a book  by  Clifford Winston, Robert Crandall and Vikram Maheshri.   I confess that I have not read the book but I have read Winston’s op-ed piece in the New York Times  and Jordan Weissman’s less than flattering take on it from The Atlantic  (“a lot of it is…completely bunk.”)

One of the peculiar pieces of evidence cited by Winston in support of his argument that we need no standards for practicing law is the “fact” that:

the existing legal licensing system doesn’t even do a great job at protecting clients from exploitation. In 2009, the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment…

There are lies, damned lies and then there are statistics.  Of all the complaints received in 2009, a significant percentage are probably still waiting final action, so I wonder where this statistic one comes from.  But let’s assume its true.  How does it lead to the conclusion that the current legal licensing system doesn’t do an adequate job of protecting clients? It ignores the fact (the real fact) that far more lawyers are disciplined than are disbarred.   The underlying assumption is that there are lots more lawyers that should be disbarred but are not.  This is an article of faith among the anti-lawyer crowd, a group that these economists are clearly sympatico with, but what is the evidence for it? Maybe I will have to read the book to find out but my guess is that I will find nothing there beyond the authors’ prejudices.  Nobody knows how good a job the discipline system does because there is no way to measure events that would certainly have happened but for the discipline’s systems intervention.   Logic tells us that removing one who has behaved badly in the past will prevent that person from behaving badly in the future but unless econometrics has moved beyond mathematics into mysticism, there is no way to quantify that.  The small number of lawyers who are disbarred is more likely to mean that the current licensing system does a very good job because the only a very small percentage of lawyers who meet its standards commit serious misconduct.

But let’s assume that this proposition is true:  the current discipline system does an inadequate job of weeding out bad actors.   How can you possibly leap from this to a conclusion that no system would be better?  Winston argues, like all good libertarians, that the magic of marketplace would take care of the substandard lawyers because ” Third-party providers of legal services information could do a service similar to that provided by Consumer Reports and Zagat Survey and effectively regulate the legal profession by monitoring the law firms’ performance and effectiveness.”   What planet are these guys living on?

Weissman does a good job of pointing out the absurdity of all this but then stumbles on an issue that is not just a libertarian fantasy but a real live possibility that is already happening in some parts of the world:  allowing public investment in law firms.   Weissman lauds this as the one area where the authors have a “point”.  As Winston puts it

if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.

Affordable legal services, coming to a computer screen near you,  provided by large corporations, maybe some of the same large corporations that have done such a great job providing financial and banking services in the last decades.   This may sound appealing, if you think of human beings as mere consumers of legal services, define them simply as actors in a macroeconomic matrix, homo economicus.   This is the modern way of thought,  after all.  Maybe we just can’t afford to have ideals anymore, including the ideal of an independent legal profession.

Winston cites Abraham Lincoln as an example of a lawyer who could not admitted to practice today. True but the the institution of legal ethics codes, education and admissions requirements and professional discipline  was the reaction against the poor state of the legal profession during the time that Lincoln practiced.

As their title, the authors play on one  of Shakespeare’s famous quotes,  one beloved by those who hate lawyers.  I would bet that the authors either don’t know or don’t care about the actually context of the quote.  It comes from Henry Sixth, Part 2 and uttered by Dick the Butcher, who is seeking approval from Jack Cade, who intends to seize power and install himself as an autocrat.  Killing all the lawyers, eliminating any independent opposition, is the first step toward Cade’s communist autocracy.   But there is more to Cade than a lust for power;  there is a contempt for learning and the law itself:

CADE
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny: the three-hooped pot; shall have ten hoops and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king, as king I will be,–

ALL
God save your majesty!

CADE
I thank you, good people: there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers and worship me their lord.

DICK
The first thing we do, let’s kill all the lawyers.

CADE
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man? Some say the bee stings: but I say, ’tis the bee’s wax; for I did but seal once to a thing, and I was never mine own man since. How now! who’s there?

Enter some, bringing forward the Clerk of Chatham

SMITH
The clerk of Chatham: he can write and read and cast accompt.

CADE
O monstrous!

SMITH
We took him setting of boys’ copies.

CADE
Here’s a villain!

SMITH
Has a book in his pocket with red letters in’t.

CADE
Nay, then, he is a conjurer.

DICK
Nay, he can make obligations, and write court-hand.

CADE
I am sorry for’t: the man is a proper man, of mine honour; unless I find him guilty, he shall not die. Come hither, sirrah, I must examine thee: what is thy name?

Clerk
Emmanuel.

DICK
They use to write it on the top of letters: ’twill go hard with you.

CADE
Let me alone. Dost thou use to write thy name? or hast thou a mark to thyself, like an honest plain-dealing man?

CLERK
Sir, I thank God, I have been so well brought up that I can write my name.

ALL
He hath confessed: away with him! he’s a villain and a traitor.

CADE
Away with him, I say! hang him with his pen and ink-horn about his neck.

Perhaps homo economicus has no need for literature, learning or the law, except as commodities to be traded or consumed.    Or any understanding that the independent bar is a bulwark against a society dominated by economic despots.  Allowing anyone to practice law is a loony idea that hopefully won’t go anywhere anytime soon.  But a bar that is owned by large corporations is a very real possibility,  perhaps even a probability.   Without a doubt, it would lower the cost of legal services.  But what price would we pay for justice?

Is Resistance Futile? The Trust Problem in the Legal Profession

/ David Cameron Carr / Leave a comment

Realizing that resistance was futile and that I would inevitably be assimilated, I chose to join the Borg Collective.

What I mean is that I embraced Facebook, Linked-In, blogging, Constant Contact and the digital paraphenalia that we are instructed are essential for marketing a law practice in the 21st Century.   The social media are part of an evolutionary process that will one day result in a “hive mind” where every being will share the same consciousness.  Scientists are already working on direct neural links between the wet computer inside your head and the dry computers outside your body.  Such interfaces will eventually be small enough in implant in your brain.  Individuality and privacy will cease to exist.  We will exist in a world of perfect connectivity only imagined in the fetishistic texting of many a teenager.

But in the meantime, we have to deal with our lingering notions of privacy and individuality in this new cyber world , the cyber world the our economy increasingly requires participation in (lawyers, too, of course.)  Because we cannot yet peer directly into the souls of those we transact business with, we have to rely on the information that they provide us.   In the past, people lived in communities where the information necessary to transact business was largely communicated face to face.   The amount of information that can be transmitted that way is relatively small but the reliability of that information is relatively high because this mode of communication has been evolving for millions of years.  That is one reason that important business (like trials, where credibility is at issue) is still conducted in person.  The problem with digitally mediated information is trust:  there is much more information than ever before but so much of it is unreliable that we don’t know how much of it we can trust.

The implications for legal ethics are huge.  If you can summarize the vast territory covered by that term in one word, it would have to be trust.  It’s hard to think of a legal ethics issue that doesn’t involve trust – confidentiality, marketing, conflicts, screening, non-attorney involvement in law practice, the duty of government lawyers to provide independent judgment, prosecutorial misconduct, you name it.

A good example of how the trust plays out in the new digital world of law business is presented in Carolyn Elefant’s excellent blog on solo practice My Shingle.  She writes about “the ill-conceived and misguided site, AttorneyFee.com.”   The intentions are good:  allowing consumers to comparison shop for lawyers based on price in the same way that they would for other kinds of services, like hotel rooms or airfare.   But the execution is flawed, first because an attorney’s services are not uniform in quality like hotel rooms or airfare and because an hourly or flat rates don’t really tell a consumer much about how much a particular legal problem will cost, and second because the hard information on the site seems to be widely inaccurate and composed by folks who don’t really understand law practice.  In fact, the site appears to be deceptively marketed to the lawyers who participate without being told that they are signing up for providing “free consultations.”

Another problem is presented by sites that purport to rate lawyers based on anonymous feedback, such as Avvo.  This week brought the arrival of a small turd on my doorstep, my first evaluation on Avvo, a highly negative one.   Avvo boats that it presents “unbiased” ratings  and only posts reviews that are “clearly” from clients but there is no way to check whether the review really comes from a client.   A perfect vehicle for anyone the lawyer might have pissed off to exact anonymous revenge.   I am completely certain that my Avvo review was not actually written by a former client, in part because they are all lawyers, articulate and not shy about expressing dissatisfaction face to face.  Avvo  bills itself as an attorney marketing service and the presence of a negative review naturally induces the lawyer to ask for positive reviews from his clients.  I have had clients who have participated in similar contests on other ratings sites, countering reviews posted by competitors purporting to be from clients with their own reviews purportedly from clients.  So much for unbiased ratings.  The fact that Avvo bills itself as a marketing solution for lawyers is telling.  The ratings thing is a gimmick; it gives legal consumers the illusion that being dealt with fairly, to establish a feeling of trust that is actually based on the deception that this is place to get the straight scoop on who is good and who isn’t.

The trust problem is a lot bigger than our profession,  It infects our sister realm of governance to such a degree that important work in our society is no longer getting done.  The legal profession is one of the institutions that is charged with maintaining the trust necessary to make both government and society work.  That vast territory might be summed up in one word as well:  “justice”.   My joke about the rules of professional conduct, essentially written in the mid-19th century to address a lack of trust in the legal profession, is that they were ideally suited for a town of 25,000 people with 25 lawyers.  Its not clear how we make rules work effectively now to address the trust problem while acknowledging that lawyers are actors in capitalistic system.

It is a vital question.  The last great wave of change triggered by Bates v. Arizona, the decision that extended commercial speech protection to lawyers, is about to be supplanted by the next great wave of change, non-lawyers involvement in financing of legal service providers.    This change, like the last one, is economics: like Bates, it will be sold, at least in part, in terms of making legal services affordable by encouraging price competition (see Bates at 377-378.)  Think we have a trust problem now?  A few decades from now, joining the Borg might seem quite attractive; at least you would know who to trust.

Where We are Now: Crisis and Opportunity

/ David Cameron Carr / Leave a comment

One of the most interesting presentations at the 37th National Conference on Professional Responsibility in Memphis last month was from Professor William D. Henderson from Indiana University’s law school.   The substance of the presentation is contained in an article in the July issue of the ABA Journal and it is essential reading for lawyers and law students who want to ride out the tsunami that is hitting the legal profession.

Simply put, the future is going to look at lot different than the past.   The exceptional growth in the law business over the last few decades, the “golden age”, as Henderson puts it, has ended with the Great Recession and its not coming back.   One aspect of the Golden Age was the rapid growth in the number of lawyers, and, by extension law students and law schools.   No more.  It is been estimated that we are graduating twice as many law students as we have jobs for.   When I was an undergraduate, law school was the default path for those who did not know what else to do with their professional lives.  No more.

The crisis is real and so is the pain, much of it visited on recent law school graduates, burdened with debt, much of it in student loans that cannot be discharged in bankruptcy, and no job prospects.  No wonder many of them have reacted with anger, as expressed by the “scambloggers” who decry law school as a scam.  Here in San Diego a class action has been filed against one local law school, alleging that it engaged in ” fraudulent and deceptive business practices”  churning out “law school graduates, many of whom have little or no hope of working as attorneys at any point in their careers.”     This comes just as this law school begins operating out of its impressive new campus which ” is sure to be a landmark in San Diego’s vibrant, exciting East Village where it sits just a few blocks from Petco Park.”   It may well be a landmark for reasons its builders did not anticipate.

In the past, he growth of the legal profession has also meant the growth of the law business.   As Henderson shows, the law business is still growing;  the growth in employment in “legal services” is higher than ever and still growing.  The difference is that it has started leaving the lawyers behind.  All those expensive law degrees also mean that lawyers are beyond the financial reach of many potential clients.  And large corporate clients, the bread and butter of large law firms, are coming to the conclusion that they don’t want to pay for legal services that they can obtain more cheaply by outsourcing or technology.

If the game is just providing  “legal services” lawyers in private practice as we know them will disappear.  But the view that lawyers are just service providers is not the only view.  There is an older view that lawyers are quasi-public officials, officers of the court, charged with an important function within the judicial system:  agents of justice.  This view is the reason that the State Bar of California, the mandatory organization that all lawyers must belong to, is enshrined as part of the judicial branch in the California Constitution at Article VI, section 9.

A large part of the growth in our ranks has been because a growing and increasing complex society needed more “legal technicians”.   We won’t need as many technicians in the future.  But we will always need lawyers as agents of justice.  In fact, we will need more of them.  And by agents of justice, I am not suggesting lawyers that are disinterested or disconnected from the interests of their clients.   Rather lawyers who understand that wisdom, vision, understanding and those qualities expressed in ABA Model Rule 2.1 “independent professional judgment and…candid advice” are going to be in greater demand than ever before.   It is time to recognize that “legal technicians” don’t need a gold plated education but that the lawyer of tomorrow may well need more and broader education that the current law school curriculum provides.  Ethics must be at the center of that curriculum;  only ethics in both the narrow sense of professional responsibility and the more general sense of appropriate behavior in society furnishes the basis of judgment.  Along with ethics, the 21st century lawyer will need to know science, politics, economics, psychology, history and maybe even aesthetics.  The old-fashioned broadly based liberal education will turn out the best preparation of the lawyer of tomorrow.  But it will only be a start.

We will have many fewer lawyers in the future and many more legal technicians.   The opportunity is there for those lawyers who possess the qualities of judgment described in Model Rule 2.1, those who can deal in the currency of “considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  We need them more than ever.