Practicing Law in the Twenty-First Century in a Twentieth (Nineteenth) Century Straightjacket: Something has to Give

Michigan State Law Review, Dec 2012

By Jack A. Guttenberg, Published on 01/01/12

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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 - * 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)


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Jack A. Guttenberg. Practicing Law in the Twenty-First Century in a Twentieth (Nineteenth) Century Straightjacket: Something has to Give, Michigan State Law Review, 2012, Volume 2012, Issue 2,