share. It is worth noting that “companies” may include law
firms as well as businesses that provide legal services.
This approach is being utilized by companies like LegalZoom that provide low-cost forms and companies like Avvo
that provide access for consumers to lawyers and legal advice. They see the future.
Here is where the picture of our future comes into focus.
With increased competition, technology, innovation, and efficiency, the trajectory we are on will make law increasingly
accessible over time to most consumers. It is inevitable that
as time passes, law will ultimately move towards being open
source. Law will not be held by lawyers any longer. We will
not be the gatekeepers. Law will be free, or at least free by
comparison to today’s prices.
If this is the foreseeable endgame, then what path should
we as a profession take to hold a market in the era of free access to the law? I believe we have two probable choices.
The Status Quo Specialization Model
We could allow the current legal market to be divided up
among legal service providers who can afford to give away
their services, leaving us with a clearly demarcated and protected area of law limited to trial and appellate work. In this
scenario, legal service companies and legal service professionals take over the market to provide consumers with full
access to legal services up to, but excluding, representation
in litigation before a court.
Legal service providers will (and some already do) provide
free or low-cost online access to statutes, WACs, case law, and
research tools and help fashion search programs for law, case
law, and rules. They create and make accessible DIY forms for
any and every area of law, at every level of court, in every state.
They provide tools and personal assistance to choose the right
forms and help consumers complete the forms, file them, and
serve them. They assist consumers investigate, create and collect evidence, and much more. They will do it all for free or at a
price average consumers can afford.
While these services alone, without imagining further,
seem to cross over upon our hard-earned licenses to practice
law, the future is not likely to protect our lawyers’ market
when other providers can provide our services for dimes
on the dollar and make them accessible to the masses of
consumers who cannot afford a lawyer today. Neither the
public nor the Legislature are likely to protect us. Not even
the court system has stopped Legal Zoom or Rocket Lawyer
from offering similar legal services. The shield of the “
unauthorized practice of law” has been of little significance
or protection to us thus far, and is only likely to lose more
ground in the future.
But perhaps that is okay. We as licensed and skilled lawyers have our sacred niche that is ours alone. We are the
only professionals who can litigate cases. Only we can argue
a case before a court on behalf of our clients. Only we can
try a case, direct and cross examine witnesses and experts,
and give awe-inspiring opening and closing arguments. Only
lawyers can brief and argue a client’s case before an appellate
court and before the Supreme Court. This will always be our
domain and no one will ever do it better than we do.
So then, perhaps we give up the rest of the legal market
and lay claim to trial work that will always be ours. Why try to
compete where we really aren’t built to win the low-cost war?
Those who need our services will pay our prices for our skills
as trial lawyers. Lawyers will be in demand by those able to
pay and those lawyers at the top of their game will come at a
very high price. The market will reward those in high demand
and protect all who are members of the remaining specialized
litigation monopoly. Our niche will be our fortress.
The Full Market Model
But there is another model to consider. What if we didn’t concede the larger legal market? What if we instead fundamentally
retool our practices and partner with legal providers?
In this model, we learn from today’s legal provider companies. We offer forms for free on our websites. We slash the
price for our services in order to make law accessible for the
public. We commoditize law. We standardize our services
and forgo bespoke and crafted services. We automate services so that no lawyer time is needed for some services. We
hire LLLTs to do the work we once did, we invest heavily in
technology to do our work for us faster, cheaper, and vastly
more efficiently. We regulate and integrate in all other legal
service providers. And we still maintain our crown jewel:
trial and appellate work.
One of the main differences between these models is that
in the first model (Status Quo Specialization Model), we don’t
have to dramatically change our ways. We simply continue to
function much as we do today and let the market forces make
the changes. The market will shift around us and legal providers will acquire the vast consumer market share as they
undercut our prices and upsell their services. In the end, only
litigators will likely remain in business and successful.
By contrast, in the second model (Full Market Model), lawyers would make immediate changes to the way we practice.
Our business model would change, our prices would voluntarily plummet, and massive investment in technology would
help lower the cost of providing services. We would shift away
from a profession built on customized service to a profession
built on a commoditized product that is quickly and cheaply
obtained by consumers at any economic level.
The legal market is full of forces that will shape us. For
those who resist change, the first model may be the one that
you adopt. For those with the ability and desire to change, to
prepare for the shifting market forces, then the second model
may be a better target.
For now, we still have an individual choice which model
(or hybrid model) makes the most sense. But my crystal ball
shows a future built on the choices we do make and will make
with our eyes wide open or shut. NWL
Patrick Palace is the chair of the
Future of the Profession Workgroup and
immediate past president of the WSBA.
Contact him at email@example.com.