Practicing Law in the Twenty-First Century in a Twentieth (Nineteenth) Century Straightjacket: Something has to Give
PRACTICING LAW IN THE TWENTY-FIRST CENTURY IN A TWENTIETH (NINETEENTH) CENTURY STRAIGHTJACKET: SOMETHING HAS TO GIVE
Jack A. Guttenberg
TABLE OF CONTENTS
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* Professor of Law, Capital University Law School. I would like to thank Capital
University Law School for its generous support of this project. I would also like to thank
David Bamhizer, Jack Sahl, Tasia Mcintyre, and Stephanie Cartwright for their comments
and insight on earlier drafts of this Article.
INTRODUCTION
As we move through the second decade of the twenty-first century, the
legal profession in the United States confronts a confluence of pressures and
realities that have the potential to greatly change how law is practiced at all
levels of the profession.' Like multiple rivers coming together to create a
larger more powerful river, these pressures and realities are coming together
to exert inordinate pressure on the legal profession for change. While no one
can predict the future with a high degree of accuracy, we can try to under
stand how the recent past and current realities influence how the future de
velops. One thing that is certain, one way or another, like a rushing river,
the future is coming and with it significant changes to the practice of law
and the legal profession.
During the twentieth century, there was unprecedented growth in the
influence of law and legal systems across all levels of society. Over the past
forty years, the lawyer population in the United States has increased pro
foundly.2 The segment of the bar and law firms representing entities grew
dramatically, while the sophistication of these entities in the purchase of
legal services has likewise expanded and developed.3 At the opposite end of
the spectrum, the legal needs of many Americans go largely unmet. 4 A sig
nificant segment of society, including those in the socio-economic middle
class, simply cannot afford to hire a lawyer and, as a result, they do without
legal representation. Likewise, many solo and small-firm lawyers, predomi
nantly representing individuals and small business, may be worse off than
they were forty years ago.
These glaring realities are buttressed by significant pressures that are
demanding and compelling changes in the practice of law. Clients, technol
ogy, competitive forces, globalization, the recent recession, and, to an ex
tent, the government are exerting unprecedented pressures on the legal pro
fession to change how law as a profession and as a business is practiced and
regulated. These forces are often working in tandem, and, at times, at cross
purposes, to mold the ever changing landscape of the legal practice.5
I. The recession has had a profound impact on the legal profession. From June of
2009 to June 2010 the legal sector shed more than 22,000 jobs. See Tom Huddleston, Jr.,
Legal Sector Lost 3,900 Jobs in June, AM. LAW. (July 2, 2010),
www.Iaw.com/jsp/article.jsp?id=I202463264613. This loss continued in to the first half of
201 I. See June Legal Jobs Economy Shows Biggest Decline this Year, WALL ST. J., July I I,
20 I I, http://blogs.wsj.com/law/20 I I/07/I I/june-legal-jobs-economy-shows-biggest-decline
this-year/.
2. See discussion infra Section I.A.
3. See discussion infra Subsection I.C. I.
4. See discussion infra Subsection I.C.2.
5. See Thomas D. Morgan, Toward Abandoning Organized Professionalism, 30
HOFSTRA L. REV. 947, 960-61 (2002).
To a significant extent, many of the rules governing how and in what
form lawyers can practice law6 in the United States are premised on a by
gone era of lawyering that may have existed 50 or 100 years ago, but does
not today. 7 These rules and their underlying premises do not comport with
many of the realities of the practice of law in the early part of the twenty
first century, and they tend to inhibit or prohibit the profession from ad
dressing many of the pressures currently confronting lawyers and the prac
tice of law. These rules reinforce a cartel mentality that impedes change,
stifles competition, and does not promote innovation.
These rules disproportionately place American lawyers at a global dis
advantage when competing for clients, attempting to innovate, and seeking
to best serve clients at all levels, without proportionately protecting the in
terests of clients. Clients will gravitate to the most efficient, innovative,
competitive, and skilled practitioners regardless of national origin or juris
dictional boundaries. While other legal systems are embracing changes that
promote greater diversity of legal service providers, enable lawyers and
their law firms to practice in multi-professional organizations, and permit
legal service providers to raise capital to fmance innovation, to promote
competition, and to deliver legal services less expensively, the legal profes
sion in the United States clings to outmoded business practices and rules
that do not promote the best interests of the profession or clients.
Lawyers exist to serve the needs of cli (...truncated)