By Cynthia Price
Legal News
“The one unchangeable certainty is that nothing is certain or unchangeable,” John F. Kennedy is quoted as saying.
Facing that reality is difficult for everyone, but in some instances the need for change is met with more resistance than others.
So it was understandable that at the 21st Century Practice Task Force Town Hall Meeting on January 29th, State Bar of Michigan (SBM) Executive Director Janet Welch said to Immediate Past President Tom Rombach as he handed the program over to her, “Thank you for forcing us to do what lawyers have a hard time doing – facing change.”
The Task Force’s brochure puts it this way: “The practice of law is changing at an accelerating pace. The changes include the influence of technology, globalization, the blurring of traditional jurisdictional borders, new models for regulating legal services and educating legal professionals, public expectations about how to seek and obtain affordable legal services, and innovations that expand the ability to offer legal services in dramatically different ways. How viable are lawyers’ traditional practice models in the face of these changes? ... How can [SBM] help its members best serve and protect the public as the profession evolves?”
In fact, two of the presentations at the town hall meeting, which approximately 100 people attended in person at the Michigan Hall of Justice in Lansing and many more live-streamed, were “Inefficient Legal Processes, Resistance to Change” and “Cultural Resistance to Innovation,” acknowledging the tendency to stick with the status quo.
While he was SBM president, Rombach, who turned over the reins to Lori Buiteweg last fall, convened the task force to address those questions and more.
The town hall meeting was intended as a kind of progress report on potential recommendations the Task Force will make after its March meeting. The SBM Board of Commissioners and Representative Assembly will review the recommendations as they debate adopting them.
In fairness, some of the changes under consideration are so sweeping that careful analysis is an absolute must, and some might even have the potential to move the profession in directions that undercut its true mission.
That is why the Task Force needs everyone with a stake in the practice of law in Michigan to be engaged.
The web page www.michbar.org/generalinfo/futurelaw has information about what the Task Force is considering. To submit comments, go to that page and click on the link “Send us your comments” under the header “Comments from Members and the Public.”
Past SBM Presidents Julie Fershtman, with Foster, Swift, Collins, and Smith, and Grand Rapids attorney Bruce Courtade are co-chairing the Task Force. They stressed that the process will not be finalized until March and they still welcome comments.
The town hall process was part of that, though the time for comments and questions was limited by the large amount of material to work through.
After introductory remarks from Michigan Supreme Court Chief Justice Robert Young, Rombach, Welch, and Buiteweg, the meeting was divided into panels on five problem areas, each of which presented a statement of the problem and a vision panelists discussed.
First, Welch laid out seven of the present-day conditions the Task Force was designed to address:
• Persistent and rising inability to meet the legal needs of the poor and, she said, “the middle class, I would add, increasingly.” Welch commented, “We are one of the few professions who take this seriously — many of us in this room are pre-Gideon v. Wainwright, and as lawyers we have always tried. Yet despite the really great generosity of so many, we haven’t quite nailed it yet.”
• Rise in unemployment and underemployment of new lawyers. “This probably hit rock bottom in 2011, but there’s evidence we may have reached ‘peak lawyer,’” Welch added.
• The high debt burden many law school graduates face.
• The perception that law school graduates are not practice-ready. “I think many of us would say that when we left law school, we were not practice-ready,” Welch said, “but... most of us could walk into jobs where we’d be mentored.”
• Stagnant or declining lawyer incomes.
• Non-lawyer, particularly online, legal service offerings.
• Technology transforming the way legal services are delivered.
The 21st Century Practice Task Force was divided into three committees: Affordability of Legal Services; Building a 21st Century Practice; and Modernizing the Regulatory Machinery. The nature of discussing the law of the future means there was a lot of overlap between the three.
The five panels covered five areas emerging from committee discussions.
The first, moderated by Courtade, was called “The Dysfunctional Legal Marketplace,” and focused on the challenge that “quality legal services have never been available to all those who need them.” Even those who can afford such services may be intimidated by total costs or are unaware of how to find them.
One proposed solution to this is called “unbundling,” or offering just a single service or limited representation rather than pursuing a case beginning to end. As Michigan Court of Appeals Judge Cynthia Stephens noted, “People may not be able to afford a lawyer to represent them all along, but maybe they could give an attorney $150 to do an interview and draft a complaint. Lawyers could come in only at a certain point in the process and address some of the unmet legal need.”
Clearly such suggestions risk spilling over into the Unauthorized Practice of Law by unlicensed and unqualified professionals. “The future law market will include lawyers, it will include legal resources staffed by non-lawyers, it will include computerized triage, but it will also include a number of unsavory folk who are preying on Michigan citizens,” commented WMU-Cooley Professor Christopher Hastings.
Panelists brought up the possibility of the state allowing Limited License Legal Technicians and specialty certificates, which are certainly under consideration for inclusion in the recommendations.
Additional panels included “Crisis For New Lawyers, New Challenges For Experienced Lawyers,” which included law school deans and a student considering the logistical challenges inherent in teaching more practice skills, “Regulatory Obsolescence,” and the aforementioned two on inefficient legal processes and cultural innovation.
The vision for the last includes “expanding the ongoing transformation of the court system through increased use of functional, working technology, triage, mediation, ADR, and eventually ODR [Online Dispute Resolution].”
One of the more fascinating exchanges took place on the Regulatory Obsolescence panel, between attorneys William Dunn (of Clark Hill’s Grand Rapids office) and Mark Armitage, executive director of the Michigan Attorney Discipline Board. Both experts talked about the regulatory challenges of Alternative Business Structures (ABS), where non-lawyers may have an ownership interest in a firm, and multi-disciplinary practices. Moving from requirements for individual accountability to entity accountability, inherent in practices where some are not lawyers, would entail, in most cases, a paradigm shift.
“The critical goal of regulating the profession is to ensure that the core values of the profession are protected,” said Armitage. “I think people should maintain a healthy skepticism about ABS.”
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