Years ago, during a political debate, my opponent called me “young and inexperienced.” Just two years younger than he was, I responded by thanking my parents for “giving me genes that allowed me to age well.” To me, age is a state of mind or, as Henry Ford once said, “Anyone who stops learning is old, whether at 20 or 80. Anyone who keeps learning stays young.”
I am always confounded by colleagues who believe that their education ended the day they received their law degrees or that they cannot adapt to learning new things, such as a new area of law, a new procedure for doing things or any other “new” topic you might think of. To them, if it’s new, it’s not good, and things must remain the way they were years or decades ago.
One lawyer, for example, routinely decries the introduction of technology, harkening back to the days when the predominantly male bar would ask their secretaries to take dictation. Or they yearn for the days when law was a profession, not a business. While the former example may exist in a few firms, the reality is that being a lawyer has always been a business, but the environment in which we practice now is dramatically different from the one that existed just a few years ago. In some ways, the changes are manageable, in others they pose greater risks. But in every case, lawyers who refuse to change will likely succumb to the new world order.
Consider also the U.S. Supreme Court. Some justices, including members of the current court, believe that they must interpret the Constitution based on “original intent.” These “originalists” feel that they must interpret the Constitution and all other written laws according to their meaning when they were enacted, and that original intent takes priority over previous rulings.
Against this backdrop, it would surprise many lawyers, including those who oppose the “originalist” concept, to learn that they too are originalists. Even worse, it would shock these lawyers if they discovered that their refusal to acknowledge and adapt to changes in the practice of law is a form of originalism.
But things change, and times change. And whether we like it or not, it is time for attorneys to wake up and recognize that change, whether good or bad, is inevitable. This column will highlight a few examples.
Perhaps the primary way law has changed is the business aspect of the practice. In the “Ozzie and Harriett” mindset, law was once a profession, and is now a business. This premise is simply inaccurate. The difference between the practice now and the practice “then” is that the business aspect of being a lawyer is far more apparent.
So where do lawyers fail to recognize this fact? The answer is in how they handle themselves and respond to the changing nature of the profession. For what seems like an eternity, a lawyer’s only competition was other lawyers. Now, the competition is far broader.
As a result, lawyers must compete with the Legal Zooms and other nontraditional legal providers, which draft wills and other legal documents for fees that would put most lawyers out of business. Does that mean that lawyers must stop drafting wills or other documents? No. It means that lawyers must explain the differences between the services they provide and the services they may receive from one of these entities.
Jim Calloway, director of the Oklahoma Bar Association’s Management Assistance Program, highlighted this concern in a talk at ABA Techshow in 2012, yet his words are as relevant today as ever. Calloway pointed out that many clients who need a will or other estate planning documents believe that all a lawyer does is fill in the blanks and charge clients a lot of money to do so. As a result, attorneys must educate their clients to understand that their services include analyzing their specific situations and providing client-specific advice.
We see this all the time. Clients come into the office, believing that all we do is interview them, and like Mad Libs, plug the information they provide into a standard form, and voila, their documents are done. To them, it’s a quick process for which we should be honored to be paid.
But then we meet with them, ask questions that focus on possible scenarios, and they realize we are providing a service, and legal advice specific to their needs. At that “aha moment,” we have transformed a skeptic into a client.
This scenario repeats itself constantly. Whether it is forming a business, drafting estate planning documents, registering a trademark or selling a property, there is an online service that claims it can provide the same service for pennies. If you are a family lawyer, for example, you must compete with the websites offering an uncontested divorce for $150. The competition is endless, or so it seems.
Couple those concerns with the seemingly ubiquitous advertisements that have also changed the dynamics of practicing law. In those cases, many lawyers who do not advertise feel as though they are fighting an unwinnable battle.
After all, as Sam Stretton pointed out in his Feb. 6, Pennsylvania Law Weekly column, the Office of Disciplinary Counsel is limited in what it can do to police lawyer advertising that violates the Rules of Professional Conduct. Stretton also noted, however, that the ethics of practicing law is self-enforcing, a concept with which I do not fully agree.
Enforcement matters and while it is not possible to prosecute every ethics violation, the complete lack of enforcement of the advertising rules creates a different situation. The analogy is driving your car. If you know that the police do not enforce the speeding laws, then you will drive at whatever speed you are comfortable, regardless of the posted limit. On the other hand, if you know that the police regularly enforce the speed limit, you are far less likely to take a chance and go 80 in a 45-mile-per-hour zone.
The same applies to ethics rules. If lawyers know the rules are not being enforced, they will be less likely to comply with them. It’s human nature.
But human nature is not the same as adaptation. Lawyers can learn to adapt to the online world of Legal Zoom and other alternative providers. They must also adapt to a world of unenforcement, that is, a world where rules do not matter. How to adapt would make a great question for Darwin.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of “Fee Agreements in Pennsylvania” (6th Edition) and author of “Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms” (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at firstname.lastname@example.org.