CBA Record March-April 2020

YLS Special Issue: The Balanced Lawyer

The Sustainability Problem: Securing the Future of the Legal Profession By Laura Wagner

W e have all seen the reports: the United States has a justice problem. Some 80% of low- income Americans and almost 50% of middle-income Americans lack access to legal services. The reasons why these indi- viduals do not seek out traditional legal services are plentiful---they cannot afford it, do not know how to find a lawyer, or do not even know they need one—but the end result is the same: huge numbers of legal consumers are trying to solve their legal problems alone or with the help of DIY services. There have been many articles pub- lished over the years discussing why this is a problem for legal consumers. But I want to talk about the other side of these statis- tics: the problems that shrinking demand pose for lawyers. As more and more legal consumers choose to forgo lawyers, more and more lawyers are struggling to make ends meet. The average solo attorney makes significantly less than they did a decade or two ago. But this is not just a problem for solo attorneys. According to the Bureau of Labor Statistics, between 1976 and 2016 there was a 203% increase in the number of attorneys practicing in house, reflecting large corporations’ efforts to avoid outside counsel and do legal work themselves. How Shrinking Demand Affects Lawyers Having recognized that we have a problem, both for legal consumers and for lawyers, what should we do about it? One option is to dig in our heels and try to strengthen the monopoly lawyers have long held on the provision of legal services. Often, when I hear these arguments, they are couched in terms of protecting legal consumers, rather than protecting the monopoly. Lawyers point out that DIY services don’t have the specialized knowledge lawyers have, nor can they provide an individualized

to law. Other fields that were once domi- nated by a very specific set of licensed professionals have moved away from their traditional models. More and more people are choosing TurboTax over accountants when doing their taxes. Many individu- als take advantage of nurse practioners and physician’s assistants, recognizing that these professionals have the ability to competently provide services that were once reserved for doctors, often at lower rates. Why can’t the same be true for law? Third, the monopoly has already failed. Despite any number of attempts to shut it down, LegalZoom is on track to turn 20 next year. The simple truth is that we cannot shut these DIY service provid- ers out of the market. But we can better regulate them. Under the current regula- tory regime, DIY service providers are not subject to the same confidentiality rules as attorneys, cannot invoke the attorney- client privilege, and cannot be subject to an ineffective assistance of counsel complaint. Providing these protections to legal con- sumers is essential, but the answer is not

assessment in the same way that lawyers can. And I admit that these points are well placed, but, for three reasons, I disagree that the solution that follows from these well-placed concerns is to protect the monopoly. First, to conclude that protecting legal consumers requires that lawyers have a monopoly on the provision of legal services screams of paternalism. Of course, we have to ensure that consumers are protected from scammers and notarios, and that they have recourse when taken advantage of by these folks. But we also have to trust consumers to make decisions about their wants and needs. David, who is going through a divorce, might decide that he does not need full scope representation, but just needs someone to help him draft pleadings. The part of our lawyer brains that is trained to think through every contingency and plan for the worst case scenario, would probably question David’s decision. But, at the end of the day, it is not our decision to make; it’s David’s, and we should let him make it. Second, these trends are not unique

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