The Business of Law and its Role in Solving the Access to Justice Gap

Prediction: If we (the royal “we”—not just lawyers) fix the law firm business model, then we also solve the 86% access to justice gap. Ok, maybe not the entire gap, but a large chunk of it.

Big statement, I know. Let’s back up a minute.

Think about recent articles/tweets/rants you have read about the business of law: robots are taking lawyers’ jobs, artificial intelligence, should lawyers code, why don’t lawyers know how to use Excel better, blockchain, Linkedin is cool (even though it really is not), etc.

Now, think about recent access to justice stuff you have read: LSC needs more money (it does), chatbots, the access gap is growing, we need more pro bono from lawyers, connect consumers to services with tech, etc.

These discussions are important and needed. But, most of the time, the discussions about the business of law and access to justice exist in their own vacuums. Not all the time, but most of the time. I would like to see the conversation shift so that the overlap between the two is constant.

What if we could perfect the law firm business model so that lawyers truly focus on practicing law, and less on the nuts and bolts of getting clients in the door and operating the firm? What if perfecting that model allowed lawyers to do as much of the public good work they want to do and not have to worry about billing enough time to keep the lights on? Or at least can take on more work where the client cannot pay what is currently considered market rate?

Sounds Pollyanna-ish, huh? It is not. We just must try harder. To achieve this, it is not good enough for lawyers to “use the cloud,” adopt Kanban, get a chatbot, track your time easier, or get more involved in their bar association(s) to serve as a baseline for a modern practice. None of those things are bad, they just are not good enough on their own. We need to fundamentally change how lawyers operate a law firm and deliver legal services.

How do we get there? Two options:

Modernize the Rules

My opinion (that is joined by many others who care about the future): The rules governing the legal profession need to evolve if we are going to allow lawyers to provide consumers with more meaningful access to legal services. Of course, every time someone raises the concept of altering the ethics rules about outside (non-lawyer) ownership and fee splitting, many folks act like it is the third rail of bar association work (overly charged and politically deadly).

However, this is not a new issue. Everyone should read (or re-read) the 2016 ABA Future of the Legal Services Report to look at the data from other jurisdictions related to alternative business structure models. These models are working in other jurisdictions (outside the United States) and they can work here. The Futures Report really is an overview of evolving the law firm model while getting consumers better access to legal services.

Despite this, states are actively working against modernizing legal services. For example, in states such as Ohio and New York, ethics advisory opinions have been published to prevent companies (i.e., Avvo and friends) from helping consumers connect to lawyers. Under these ethics opinions, the position has been that if an Avvo-like company refers a case to a lawyer, then the lawyer cannot pay a marketing fee back to Avvo for that case (even though that same lawyer may be paying through the nose for Google AdWords for a similar result).

In other words, consumers want to be connected with lawyers, companies can help connect those consumers to lawyers, and lawyers want that work and are willing to pay a reasonable marketing fee to get it, but states are prohibiting those results.

Quite frankly, I am surprised that we have not seen a solo/small firm insurrection in the states blocking these efforts, because if nothing else, lawyers are losing opportunities for revenue. Paging the William Wallace of the solo/small firm world…

Rule 5.4 needs to evolve. As the Futures Report indicates, we need to gather data to inform states on the right model or models to permit more forward-looking business models. This is not an easy task, but it needs to be done. Otherwise, law firms will be stuck in their existing ways until a radical shift can occur changing the way lawyers interact with consumers of legal services.

In The Alternative, A Standardized Approach

While rule changes are being discussed and debated, we need action in the interim. It is possible to work within the rules to create new models of law firms that are more focused on client service. This really applies to the solo/small firm world (the vast majority of active lawyers). One way to do this is to standardize the model of what it means to be a solo and small law firm, including technology offerings, processes, and procedures, and how law firms get work in the door (i.e., find better ways for consumers to get access to more traditional legal services).

The firms that have standardized and run lean, consumer-focused practices will also be better positioned once the rules discussed above evolve and firms have fewer barriers to capital and clients.

Although it is anecdotal, I have not talked to a single lawyer in the United States who has indicated that they would be adverse to splitting profits with an outside non-lawyer-owned company if that company could provide the capital to run their firm and to grow their client base. Lawyers know that roadblocks are in place, and they are open to change. They want to be able to focus on practicing law, and not worry about the business aspects as much as they do now.

We can solve these problems. It is a big conversation well beyond the space allocated for this article, and it needs to continue.

If we can modernize the way lawyers function, then more consumers get help. Let’s make sure that any conversation related to how lawyers practice is married with getting consumers access to legal services. That’s where the magic will happen to meaningfully address the access gap.

About the Author

Chad Burton is the CEO and co-founder of CuroLegal, and a member of the Law Practice Division Council and is on the governing board for the ABA Center for Innovation. Contact him on Twitter @chadeburton.

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