“Tough cases make great lawyers” is an old trial lawyer’s adage. Lawyers—and the legal industry—are in the midst of a very tough case: how to defend the rule of law and to restore public confidence in the legal system. This is a “bet the democracy” case, yet it receives little press coverage. Why?
The industry’s focus is on its own economics, not solutions to existential problems. Law firm profitability, mergers, peripatetic partners, “innovation” awards, and other economic-oriented, lawyer-centric topics dominate legal tabloids. Academics offer little support to problem-solving. They typically focus on arcane topics whose relevance is limited to a handful in the Academy. Legal scholarship is far removed from real-world, real-time problem solving. Even the Chief Justice has publicly noted this detachment.
Regulators and State Bars—especially voluntary ones that rely on dues-paying members—focus on protecting lawyers from competition. Efforts to effect reregulation that balance consumer protection with sanctioning new delivery models that expand access to justice by providing accessible, efficient, affordable, scalable, and matter-appropriate access to legal services are repeatedly rejected. The legal profession is failing the public by leaving most individuals and businesses without an adequate means to assert and/or to defend their legal rights. This has profoundly negative societal implications, especially now. Accessible, affordable legal services—many of which do not require lawyers— and equal application of justice are essential to preserve the rule of law . If the legal industry does not take the lead to insure both, who will?
The corporate sector of the legal market receives outsized attention; that’s where the big money is. The retail sector gets short shrift, even as most individuals and SME’s lack meaningful access to legal services. That’s because they lack a powerful voice, leverage, and the clout required to take on the legal profession and its anachronistic self-serving regulations. As Derek Bok, the former President of Harvard University famously quipped, “There is far too much law for those who can afford it and far too little for those who cannot.” The situation has only worsened during the three decades since Bok proffered this indictment of the profession.
What does this say about legal culture and what it values? Short answer: the legal establishment has an insular, economically-driven focus that is out-of-touch with a rapidly changing, polarized society that is increasingly skeptical of and detached from a legal system designed for the rich. Even in this time of confluent crises—health, financial, political, social, climate, and legal–law’s focus remains inward. There is little discourse—much less concerted action—to blunt the assault on the rule of law and the threat that poses to our democracy.
Most in the legal establishment retain the mindset that lawyers are the industry, and they marginalize those that are challenging, reimagining, and incipiently replacing long-entrenched paradigms of legal education, training, organization, economics, delivery, regulation, client/customer service, and culture. The profession tends to see everything through its own narrow lawyer lens. For them, everything is a legal issue and lawyers are uniquely qualified to solve it. That hubris is the byproduct of self-serving self-regulation, and it has fostered the myth of legal exceptionalism.
The legal industry, where legal practice is an increasingly shrinking part of a growing pie, has business, not legal, DNA. It is far more collaborative, diverse, inclusive, agile, multidisciplinary, fluid, data-driven, and customer centric than the profession. That is what is required to defend the rule of law and to restore public confidence in the legal system. It’s past time that the profession leverage the full might of the industry to democratize legal services for the retail segment and to improve its delivery for the corporate market, too.
Even before the pandemic, the rule of law—individual and institutional commitment to respect laws, legal authorities, and courts and to be equally subject to legal codes and processes—was under siege. COVID-19 has cast a heavy and unequal strain on the population. Rather than coming together during this time of crisis, the pandemic has exacerbated society’s polarization by spotlighting inequalities in the justice system, healthcare, and other “inalienable rights.” The pandemic has convulsed the nation and strained to a breaking point the social compact that separates a nation of laws from anarchy.
Law is on trial in the United States, and most in the legal profession remain focused on when-or whether- profitability will be restored to pre-pandemic levels. At a time when collaboration to address an existential threat is demanded, the profession has remained inwardly focused. Instead of galvanizing the collective skills and resources of the industry to respond to the unmet legal needs of society—many of which do not require formal legal engagement—the profession has stubbornly resisted reregulation designed to expand access to legal services. This is not a winning defense for a legal system on trial.
How can the legal industry help to restore the rule of law and public confidence in the legal system?
The profession must align with the industry to restore public confidence in the legal system. That means, among other things, that lawyers must recognize—as physicians do—that “it takes a village” to battle a crisis. Here are some recommendations how to do it.
- Acknowledge the problem
The entire legal ecosystem must acknowledge the systemic problems undermining the rule of law and collaborate to solve them. Imagine if eighty-five percent of Americans lacked access to medical care? The self-regulated legal industry is failing its social compact with society and must make democratization of legal services a priority. Models, technology, human resources, know-how, the capacity to scale, and roadmaps exist.
The challenge of restoring public confidence in the legal system starts with lawyers. They must collaborate not only with others in the profession, but also with the legal and other industries. This is a cultural shift, to be certain. But consider law’s rapid transition to remote workforces and online learning. It can be done when the need arises, and there is an urgent need to stanch the bleeding. The legal industry should look to tech giants and other companies that are far along the digital transformation path to see how “the art of the possible” can be achieved. The resources—human and technological—exist; it’s a matter of focus, will, agility, and creative problem solving that enhances customer access, value and satisfaction. In this instance, the “customer” is society.
- Focus on the Vast, Underserved Retail Market Segment
The legal industry has the opportunity to do good and to do well. There is an enormous unserved market for legal services and an underutilized supply of legal talent and technological tools. LegalZoom, Rocket Lawyer, DoNotPay, and other tech-enabled, new model providers have already demonstrated the potential for delivering accessible, efficient, and quality legal services at scale. More can be done, especially if the infrastructures of enterprise legal service providers are leveraged and reregulation occurs.
- Embrace Diversity
The legal industry receives a poor grade on diversity. That’s because its culture and incumbent models—education, delivery, regulation, courts.—do not foster it. It is essential that the legal industry be more diverse as to mindsets, skillsets, models, workforce, criteria for law school admission, paraprofessionals, allied legal professionals, gender, race, and other ways. Law’s defenders should reflect the composition of the society they serve.
- Modernize Legal Education and Training
Most law schools are still training for careers that are quickly vanishing. They remain diploma mills, not learning centers for life. Admission criteria, faculty composition, and other institutional foundations should be geared to preparing diverse, agile, emotionally intelligent, critical thinking and compassionate graduates. Law school rankings should reflect this to encourage schools to change. Online tools, real-life problem solving, and augmented skills should be part of a modernized curriculum. Tuition can and must be drastically reduced to enable grads to follow their passion, not the fastest way to pay off crushing educational debt.
- Reimagine Courts
Courts must modernize. As my good friend Richard Susskind argues, judicial resolution should be a process, not a place. Courts should be more proactive, accessible, helpful, efficient, and even-handed.
- Think Globally
The practice of law may remain provincial, but the business of delivering legal services is global. The U.S. legal industry should enlist assistance from other sovereign nations—and businesses—to tackle access to justice and inequities in law enforcement, bail, sentencing, etc. The effective use of data will accelerate and better inform this process.
- Use Influence to Create Just Laws and Enforce them Equally
The legal industry must take the lead to ensure that laws are justly enacted, applied, and enforced. Lawyers, in particular, have a social compact not only with clients that engage them but also with society. They take an oath to defend the Constitution and serve as officers of the court. They are the sworn defenders of the rule of law, a sacred trust. This responsibility is no longer front-of-mind for most lawyers. It must be.
The legal industry is undergoing an unprecedented period of change. COVID-19 will turbocharge it. The legal function is being recast, and so too is the delivery of legal services. Many lawyers will no longer be pursuing practice careers as we knew them. For many, law will be a skill, not a practice. They will be leveraging their legal training and skills, augmenting it with other competencies, and pursuing other career paths.
Paradoxically, fewer practicing lawyers—and greater leveraging and scaling of their legal training—can have a positive impact on restoring faith in the legal system. A plethora of lawyers will cease to perform “drudge” work and instead apply their legal training in a variety of ways—education and training reform, (re)regulation, consumer advocacy, data analytics focused on law-related issues, consumer self-help tools, scaled, providers of tech-enabled civil and criminal legal services, etc.
Law is on trial. The legal industry must ensure that society is not a pro se defendant. The stakes are far too high.