CBA Nov.-Dec. 2020

A Fork in the Road for Our Profession By Bob Glaves, CBF Executive Director A s the world around us has changed dramatically since the early 1980’s, we have seen only modest changes Chicago Bar Foundation Report

our own day-to-day practices. When the middle market failure is combined with the long-term underinvestment in pro bono and legal aid services for low-income and disadvantaged people, the reality is that a sizable majority of our community has little or no access to legal services. The pandemic and our overdue reckoning with racial injustice have only underscored the urgency to take action. How DidWe Get Here? This market failure happened gradually over decades. Not long ago, middle class people had affordable and accessible options when they needed legal help, and lawyers serving this market could make a good living doing so. It is no coincidence that the trouble started in the 1970s when the billable hour became the prevalent mode of pricing. Whatever the billable hour’s merits may be in the corporate legal services market, people living on a budget do not buy services of uncertain cost and value unless they feel there is no other choice. The squeeze on middle class incomes and exploding law school costs over this time are also factors, but other businesses and professions have innovated and adapted to similar new realities in a way we have not. Lack of Market Fixes Returning to Economics 101, the invisible hand of the market normally steps in to

in the Rules of Professional Conduct governing the business of law. The result is that our profession has gradually priced the everyday person out of the market for legal services even though more lawyers are practicing than ever before. Something is clearly wrong, and we now face a clear choice: continue down the same unsustainable path, or set a new course where we empower the middle class to access the quality, affordable legal services they need and enable lawyers to sustainably provide those services to them. The Problem in a Nutshell Despite more lawyers practicing, more people than ever before are not getting legal help when they face legal issues. This is most apparent in the record number of people coming to court on their own: at least one party is unrepresented in three out of four civil cases in the latest national survey. At the same time, lawyers trying to serve everyday people increasingly are struggling to do so sustainably, even though a high percentage of the people proceeding with- out lawyers are in the middle class, would prefer to be represented, and could afford to pay something for the services. In Economics 101, this is the clas- sic definition of a market failure, and it affects all of us even if we do not see it in

fix a mismatch between consumer need and business capacity, but that has not happened in law. The overarching reason is that our cur- rent Rules of Professional Conduct are artificially restraining the market by unduly restricting the flow of information to con- sumers and unjustly limiting the business models that are necessary to succeed in today’s world. As a result, solo and small firm lawyers not only need to be good lawyers, they need to be good business, finance, market- ing, and technology professionals as well. However, very few lawyers can do that. It is no wonder that so many lawyers are strug- gling to try to sustainably serve this market. Innovation in Other Professions As law has stuck to the one-size-fits-all law firm business model, other professions long ago opened the door to innovative new

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