Why the rapidly evolving landscape for clients requires creative new moves from lawyers and the profession

McGuire, Patrick A.

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NELLCO Consortium Legal Scholarship Repository

Game Changer

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JD 2010 8JD 20109LIKE GRANDMASTERS OF CHESS, the best lawyers win far morethan they lose. Looking many moves ahead of their competition,they marshal logic, creativity, and daring to set themselves apart.But suddenly, some of the law’s top practitioners findthemselves struggling to adjust to rules that are seemingly beingrewritten in the middle of the game. Consider:Unprecedented numbers of litigants are representing them-selves—an increase not only among those who can’t afforda lawyer, but also among middle income individuals whoare opting to Web-surf hundreds of cheap, do-it-yourselfapproaches to divorce, bankruptcy, and automated assemblyof contracts, leases, and other legal documents.In new books like The End of Lawyers, legal experts warnfellow attorneys that the market for their services has gonebump in the night. The public no longer is willing to payhigh fees for legal procedures they now believe they cando themselves.A critical report by the Carnegie Foundation has cited lawschools for overemphasizing the mantra “think like lawyers,”while doing little to prepare graduates for dealing withreal people.Traumatized by the financial crisis, many blue-chipcorporate clients routinely assign millions of dollars inlegal work to their usual external law firms. Instead theyare now watching costs closely, sometimes making law firmhiring decisions based on price. In response, previouslyunthinkable layoffs have decimated Big Law firms, someof which have stopped hiring young associates right outof law school.Why the rapidly evolvinglandscape for clients requirescreative new moves fromlawyers and the profession.Changer>>>>By Patrick A. McGuireIllustration by Kevin McSherryGameJD 2010 10The ongoing upheaval in the legal landscape poses challenges todayto every kind of attorney—from those with million-dollar salaries infirms of 4,000 lawyers to the solo practitioner who works writing willsthrough his lunch hour to make ends meet.It has also challenged law schools to ask themselves some hardquestions about how they do what they do. In response, a handful,including the University of Maryland School of Law, have taken thelead in identifying and implementing changes aimed at preparingtheir students for a legal world unlike that encountered by theirtraditionally trained predecessors.While a nationwide self-examination by law schools is nowprompting other institutions to begin considering revamped curricula,UMDLaw is already moving ahead. For decades, its innovativecommitment to linking theory and practice and the nationally rankedClinical Law Program have helped students gain practical skills requisitefor career success. Now, the School of Law is building upon thisfoundation to prepare creative, efficient, and client-focused lawyerswhose problem-solving abilities will always be in demand—regardlessof how the legal landscape unfolds.“We are at a time when there are major changes in the profession,”says Michael Millemann, the Jacob A. France Professor of PublicInterest Law at the University of Maryland School of Law. “Largenumbers of lawyers, the legal profession, and some legal educators areengaged now in redefining and rethinking the ways in which lawyersdeliver legal services. The changes are coming in all forms of practice,with some of the most significant in solo and small firms.”Richard Susskind, an internationally known lawyer and authorof The End of Lawyers, warns that the law profession faces the threatof being eroded out of existence. His prescription calls for attorneys“to introspect, and to ask themselves, with their hands on their hearts,what elements of their current workload could be undertakendifferently—more quickly, cheaply, efficiently.”Watching the Clock—and the Bottom LineMuch of the change has been building slowly. Over the past20 years, a steady movement toward self-representation has nowreached a point nationwide where courts are saturated withinexperienced litigants; many stumble through the legalese ofstatutes and struggle over the various forms and documents requiredin legal proceedings. But a lot of the change—especially unsettlingdisruptions in the once rock-steady world of Big Law—has beenaccelerated by the economic meltdown of the past three years.Once seemingly unthinkable developments, like the outsourcing oflegal work overseas and the commoditization of legal services, arenow becoming increasingly common.“Within Big Law firms,” says Millemann, “there is a realrestructuring going on. There’s been an assault by clients on thehourly rate, which I can understand. The rates keep going up andup. But now you’ve got increasingly good consumers as clients.So big law firms are rethinking their economics.”Before the meltdown big firms lived off big mergers and biglitigation. “When Time Warner and AOL merged they hired bigfirms,” says William Reynolds, the Jacob A. FranceProfessor of Judicial Process at the School of Law.“You need to throw a lot of bodies at these sorts ofthings. Law firms were charging what seems like tons ofmoney, but in the context of a corporate acquisitionworth billions of dollars every year, no one even noticesa $50 million legal fee.”A common practice among large firms was theannual recruiting of star graduates of prestigious lawschools. Hired as associates they were paid upward of$165,000 a year. It became common practice for abig firm lawyer to bring several associates to a clientmeeting. Each would then submit a breathtaking bill.When the economy imploded, clients immediatelylimited the number of lawyers they’d allow used on agiven issue.“Those clients very likely felt that they wereessentially paying for that associate’s on-the-jobtraining,” says Professor Robert Rhee.One of the long-term trends that has played outin large corporations since the most recent fluctuation,says Rhee, is a new mindset regarding external lawyers.“It asks whether there are certain aspects of a legalpractice that may not require the unique talents andskills of a lawyer who is at, say, the prestigious firmXYZ. It asks what legal services are subject to efficienciesthat can be gotten from the use of technology andfrom lower-paying contract attorney services that canbe more cost effective.”Clients are also increasingly unwilling to foot the bill for firms’overhead in areas not essential to their own legal needs.“The client is saying is that we want you to serve us well, but wedon’t want to buy a bunch of services we don’t need,” says Millemann.“The question is, how far can you cut and not affect the quality? Theanswer is, you can cut substantially and not affect the quality. Anotherway of putting it: It’s becoming more competitive.”Jolted by such changes, many big law firms have instituted painfullayoffs. According to figures published in April 2010 by AmericanLawyer Magazine, nearly 15,000 people—a third of them attorneys—have lost their jobs in major law firms since Jan. 1, 2008. In addition,more and more basic legal work is being outsourced to India,where lawyers tag documents for as little as $20 an hour. Accordingto Forrester Research in Boston, 50,000 U.S. legal jobs will moveoverseas by 2015.“There is a great deal at stake for the corporate client,” says Rhee.“Just a very minute extraction of efficiencies from the cost of legalservices translates into large value added for corporate America. I don’tthink right now that law firms are providing legal services at thoseefficient levels. And if that’s the case, the next assumption is that clientswill continue to search for efficiencies.”But continue forever? Or just until the economy gets better?“The thought is that these changes will be permanent,” saysReynolds. “I don’t believe that for a second. Somehow, if the economytomorrow was the same as it was three years ago, I think we would beback to where we started.”Ward B. Coe, III, a 1973 UMDLaw grad and a veteran Baltimorelitigator, takes the long view. “Things have changed in the professionall along,” observes Coe. “There’s the pervasiveness of technology that’sbeen both good and bad. And there are financial troubles that createterrible problems for lots of clients of law firms. But on the other hand,there are an awful lot of lawyers out there still doing what they’vealways done. Which is representing clients.”Going It AloneWhatever the case for the permanent or temporal nature of changesbesetting Big Law firms, only a quarter of America’s lawyers areemployed there.“I think we are missing the mark if we only emphasize changesin large law firms,” says Lynne Battaglia ’74, a Judge on the MarylandCourt of Appeals. “We need to look at the impact economically onsolo practitioners and their clients, practitioners in businesses, and theadvent of self representation.”Courts around the country are noting a remarkable rise in thenumbers of pro se litigants.“The working assumption,” says Millemann, “is that in litigationyou’ve got two sides: two lawyers who fight with each other. But theaccurate model is that one or both sides are not represented.”A recent report issued by the American Bar Association’s StandingCommittee on the Delivery of Legal Services (Millemann is a panelist)offered this sobering snapshot:“When going to state court, most people proceed pro se most ofthe time. High volume state courts, including traffic, housing, andsmall claims, are dominated by pro se litigants. Over the course of thepast 20 years, domestic relations courts in many jurisdictions haveshifted from those where litigants were predominately represented bylawyers to those where pro se’s are most common. In these areas ofthe courts, pro se is no longer a matter of growth, but rather a statusat a saturated level.”In half of all divorce cases in Maryland, neither side is represented;in 85 per cent of Family Court cases, only one side is represented by anattorney, notes Battaglia. She sees it even at the Court of Appeals level,where almost all cases heard come through the granting of a writ ofcertiorari—a complex legal petition detailing arguments and precedentfor hearing the appeal of a case.In response, a practice known as “unbundling”—officially termed“Limited Representation”—is becoming commonplace. Lawyersagree to represent some clients for only particular parts of a case. Whileunbundling is popular with pro se litigants, courts and lawyers onlyrecently have begun adapting to the growing reality of such services.JD 201011Michael Millemann, the Jacob A. France Professor of PublicInterest Law at the Univesity of Maryland Law School“LARGE NUMBERS OF LAWYERS,the legal profession, and some legaleducators are engaged now inredefining and rethinking the waysin which lawyers deliver legal services.”An increasing number of stateshave drawn up rules, approved by theABA, governing the practice. Manycourts now offer pro se litigants manykinds of help in navigating unfamiliarprocedural hurdles. Some offerself-service kiosks in their courthouseand personal guides.Still, says Millemann, “Whenyou talk about partially representingsomeone it raises a lot of challengingissues, lots of ethical issues that ariseout of changes in structures andfunctions of lawyers and law firms.”The trend highlights areas thatmany law schools traditionally donot cover—preparing lawyers to actas entrepreneurs, to negotiate limitedservice contracts, to essentially beflexible and willing to adapt on therun. In many smaller law firms,attorneys often find themselves competing with inexpensive, do-it-yourself services, many offered online with attention-getting headlinessuch as “Easy Divorce—$199,” and “Win Without a Lawyer.” Readilyavailable software encourages people to forego lawyers to create theirown wills, leases, and other legal documents.“I think the middle class fears that they can’t afford a lawyer,” saysBattaglia. “But what we’re seeing is not only people who can’t afford itbut those who can afford it yet think they can represent themselves.”Missing, she says, is the perception by the public that lawyers areactually worth the time and money. “I believe we have to distinguishourselves as having some knowledge that is important to impart. Weneed to reinforce to the public that there is something lawyers bring tothe table, specific knowledge that can’t be purchased on the Web.”Adapting to the Rules of a Changing GameUMDLaw is working to ensure that its graduates will continueto possess the kind of skills and abilities that Judge Battaglia says areindispensable to clients. At the same time, it is trying to readystudents for the changing professional landscape they will encounter.In 2008, in a three-year $1.6 million partnership with the FetzerInstitute, the School of Law started the Leadership, Ethics andDemocracy (LEAD) Initiative—a program in response to “a range ofsocietal pressures and cultural forces [that] have converged to createmany challenges for the legal profession.”“Leadership will be critical,” predicts Millemann, who directs theproject. “[We need] lawyers who are flexible, who respond well tochange and the challenges it provides. They can work with others, arecreative, and can understand and move organizations. In the changinglegal arena, good leaders will be better able to succeed.”To Professor Ellen Weber, leadership means understanding a client’sproblem and taking the actions necessary to solve it. Students in herDrug Policy and Public Health Strategies Clinic have employed a widerange of tools in their effort to expand access to drug treatmentservices in Baltimore.JD 2010 12“OUR STUDENTS havelearned that there aremany ways for lawyersto attain their clients’goals. And not all ofthem are expensive.They’ve learned to takeinto account whatresources are available.”Professor Ellen Weber“Drafting legislation, publishing educational materials,organizing public protests and attracting media attention, attendingmediation, pursuing litigation; they’ve done it all,” says Weber. “Ourstudents have learned that there are many ways for lawyers to attaintheir clients’ goals. And not all of them are expensive. They’ve learnedto take into account what resources are available.”In last April, the LEAD Initiative worked with former UMDLawDean Michael Kelly to organize a conference at the School of Lawto discuss the impacts of change on the practice of law. The papersdelivered at the one-day conference by faculty, invited guests, andalumni will be reviewed in an upcoming edition of theMaryland Law Review.“Good organizations need to do a self-assessment,” saysMillemann, one of the conference organizers. “In some senses [theconference] was a sort of taking stock of where is the practice today.Is there an appropriate connection between what we do at the lawschool and what goes on in the practice world?”On the minds of many attendees was the report published threeyears ago by the Carnegie Foundation, which criticized law schoolsfor failing to better translate case law learned in the classroom intoreal world practice. The report also charged that “students are oftenwarned not to let their moral concerns or compassion for the peoplein the cases they discuss ‘cloud their legal analyses.’ Students have noway of learning when and how their moral concerns may be relevantto their work as lawyers.”One of the report’s recommendations was that law schools paymore attention to developing students’ professional identities.“Values are how we deal with each other,” says Battaglia. “Whatare our priorities? Faced with a decision between the best interests ofthe client and our own self-interest, the core tradition is that theclient value comes first.”The import of that value, she believes, is being eroded “by ourconcern about economic well-being. There’s always been a survivalelement to being a lawyer,” she says, “but there is a difference betweenaggrandizing wealth and what’s good for your client.”A key point of the change debate is to what extent—if any—a lawschool should modify or even blow up its curriculum. Reynolds,for instance, notes that every new specialty track introduced takesaway time from study of the basics. “I think the old way [of teaching]turned out superb lawyers,” he says. “You studied the basic stufflike contract law. I don’t know what the law is going to be like50 years from now, but people properly prepared in the basics canmake the shift.”An interesting example of a hybrid course that blends thetraditional approach with modern questions of ethics is one taughtby Rhee. His corporate ethics seminar gives students a chance toapply ethics to the real world problems of corporate decision-making.Case studies include analysis of the Enron collapse and the J.P.Morgan takeover of Bear Sterns.Rhee teaches pretty much the same course in the Robert H. SmithSchool of Business and intentionally does not try to slant one strictlyfor lawyers and the other for budding business executives.“I don’t believe in false separations between the professions,”he says. “In order to deal with issues we need to be familiar withlaw, economics, and policy and be able to speak the language.I think, at least in the field of business, that’s where professionalismshould be headed. The world has gotten very complicated. Weshouldn’t be compartmentalizing knowledge along the silos ofprofessional schools.”The debate, of course, has only just begun.“We’ve got a terrific set of classroom teachers,” says Millemann,“terrific clinical teachers, and lots of specialty programs. I’m proudof where we are. So I start with the premise—rightly or wrongly—that we are not going to gut the structure of what we do. I don’tthink we should.”Then, again, he says, “I think we’re talking about more thanjust tinkering.”JD 201013The Next Move?IN APRIL, UMDLaw, as part of its Leadership, Ethics andDemocracy (LEAD) Initiative, hosted a national symposium toexamine major changes in law practice and their implicationsfor law schools. Suggestions from the symposium for legaleducation included:> Teach students about organizations, including legalorganizations. As lawyers, they will both representorganizations and work in one. Include in this educationthe macro-ethics issues that derive from the structures oforganizations, law office management, and getting andretaining legal work.> Improve “transactional” legal education. Teach accountingand corporate financing and more about drafting andnegotiation (for organizations as well as individuals).Show students how lawyers and corporate clients reachand execute agreements.> Introduce students to new forms of representingindividuals, including unbundled (limited scope)representation. Diversify teaching methods and goalsto include more experiences with and information aboutthe importance of interdisciplinary and team work,creative problem solving, alternative dispute resolution,and leadership.> Better prepare students for international andtransnational practices.> Add practice-based experiences to the curriculum,including by integrating more practice intotheoretical courses.—Michael MillemannJacob A. France Professor of Public Interest Law and Director,Leadership, Ethics & Democracy Initiative

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Game Changer

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