Dubois-Mark ()

I heard that New York is going to adopt a system where “guides” or “concierges” pair with self-represented parties in certain courts in order to facilitate the movement of business and allow the judges to return to being neutral arbiters instead of trying to be both judge and advocate for those without attorneys.

These guides will be highly trained paralegals. They will know only one area, but will know it well. They will not be lawyers. This program is also being implemented in Washington State and California. I have been told that the Connecticut Judicial Branch is seriously looking at this also.

A few years ago, it would have been anathema to suggest that anyone but lawyers would be doing this work. Now, serious students of courts systems believe that this is one of the new ways business will be done in 21st-century courts. How did lawyers lose this market and in less than a generation?

Business schools folks will tell you of the phenomenon called “market overshoot.” There is an acknowledged tendency for market providers to increase the complexity and price of their product to increase profit margins. When disruptive technologies enable new market entrants to provide low-cost services to the bottom end of the markets, often the established players will cede that slice of the market to the innovators and will continue to focus on the high-margin, complex segments. Once the innovators control the market segment, prices collapse as the competitors cut prices to compete with each other until only the most robust survive. The survivors then move up-market and the cycle continues.

In law, the services offered by lawyers with three-year JD training in traditional firm environments have been displaced by low-cost providers in the low end of the market. Think LegalZoom for wills and incorporations. Think Quicken Loans for mortgage work. Think of the many DIY internet divorce sites. Think unemployed law grads doing limited-scope everything else.

As the ubiquity of these low-cost alternatives has grown, established market players have ceded this low-end work to these edge players. As technology has enabled them to provide reproducible and consistently good-quality work, the only way they can compete is on price, so prices keep dropping. Now, it is possible for many to get reasonable, reliable, commodity legal work for very little money.

Courts faced with too many unrepresented parties have figured out that they can hire paralegals to grease the wheels of their systems for much less than they can hire lawyers. A few tweaks to the statutes and court rules, and the traditional model of two litigants, two lawyers and one judge in every divorce case is replaced with two litigants, two facilitators and a judge. Same for real estate and simple corporate and transactional work. Great for courts, and great for consumers. Not so great for the legal profession.

Well, not so great for the profession if it continues to view itself as a learned guild with exclusive control of the market. But in every market evolution, there is money to be made. Perhaps some of our surplus law schools (we produce twice as many lawyers every year as the market needs) can move into training (to borrow from the business school models again) “just in time” and “just good enough” providers who are taught to provide consistently good-quality work in specific, defined and limited fields for consumers who no longer need a “full service” legal experience.

There are two alternatives to this. One is to try to stem the tide with harsher unauthorized practice rules and increased enforcement. That may buy us some time, but, in the end, markets move even unmovable fortresses. We will lose that battle.

The other alternative is to reimagine how law is delivered, and give lawyers the tools to be players in this market by providing them training, technology and low-cost service delivery platforms. Many state bars are experimenting with the later in “incubator” and “modest means” programs. If lawyers can provide the same services at the bottom of the market as paralegals and for the same price, isn’t the public better served using lawyers instead?

Richard Susskind, in his book “Tomorrow’s Lawyers,” identifies many ways in which the next generation of lawyers will earn their living. Most of them involve service delivery on the commodity model. Very few will be working in firm environments as they have for the last century.

As Adam Smith taught us, the invisible hand of the market moves quietly but inexorably.

Mark Dubois, the former chief disciplinary counsel in Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views expressed here are his own and not those of the CBA.