Setting a Course for the Future

by Ann Massie Nelson

A new epoch in the profession of law has dawned, according to nationally recognized legal experts and futurists who addressed the State Bar of Wisconsin's Seize the Future conference late last year.

Leaders of Wisconsin's legal community were invited to spend one-and-a-half days considering trends that may forever transform the practice of law. The speakers challenged participants to step back and view their roles as lawyers and businesspeople in a future dominated by global economics, competition, technology, and information-empowered consumers.

A diorama of shifting needs and diverse players emerged. The subject of the diorama - the traditional lawyer - appeared to be busy fishing in placid waters, oblivious to the approaching tsunami.

Catching and keeping the trophy fish before someone else hooks it is not the challenge facing lawyers, the participants learned. The real challenge is how to remain in the contest without being swept overboard by forces beyond their control.

No single picture of law practice in the 21st century was painted during the conference. In fact, one thing was imminently clear: In the future, people who earn law degrees will use their training in diverse ways that will challenge all preconceptions about law practice. Law schools, bar associations, and regulatory agencies will scramble to keep up with a profession that has not seen this much change since Abraham Lincoln rode the circuit in Illinois. In the days following the conference, a group of participants proposed revolutionary changes in the delivery and regulation of legal services, putting Wisconsin and its progressive tradition in the vanguard of the debate over diversified service entities. A resolution presented to the State Bar of Wisconsin Board of Governors in January supports sharing fees and ownership interests with other professionals in multidisciplinary practices (see the accompanying resolution). The American Bar Association (ABA) House of Delegates ultimately rejected similar proposals last year, recommending instead that states enforce unauthorized practice of law statutes. (The ABA Commission on Multidisciplinary Practice (MDP), after years of study and debate, had recommended changes to the Rules of Professional Conduct that would permit lawyers to practice within MDPs but still preserve the core values and ethical mandates of the profession.)

The proposed resolution reflects the position of many - but certainly not all - of the lawyers in attendance. Conflicting and, often, passionate opinions about the future of lawyering were shared, but there was one maxim on which nearly everyone could agree: The status quo is no longer an option.

No turning back

Lawyers are facing a "sea change" from which there is no turning back, said keynote speaker Gary A. Munneke, a professor of law at Pace University, White Plains, N.Y., and past chair of the ABA Law Practice Management Section. Munneke set the stage for the conference by predicting a radically different future for the legal profession.

"Monolithic, large, full-service law firms are totally anachronistic. We will see the emergence of virtual firms where professionals will come together for the sole purpose of solving a client's problem," Munneke predicted. "There is a great future for individual lawyers who serve as 'infomediaries' and those who provide high-end, value-added services. These are the lawyers who know what nobody else knows. Conversely, many lawyers will be forced into routine, production work, where the price of service will be so low it will be difficult to make a living."

Munneke also forecast that:

• Rapidly changing technology - including e-commerce, e-lawyering, and the Internet - will level the playing field between large and small, rural and urban law firms, and blur jurisdictional lines.
• Demographic changes - including global interdependency, a more diverse population, and clients who desire more autonomy in their legal affairs - will lead to more client-centered legal services.
• Law schools will need to break the conventional mold or risk becoming obsolete as talented college graduates look to other professional or graduate programs to prepare them for more rewarding careers.
• More people will turn to alternative dispute resolution and self-representation to resolve conflicts because they view lawyers as obstacles to conciliatory outcomes.

The discussion that followed Munneke's opening remarks centered around the perceived threats of multidisciplinary practice, multijurisdictional practice (MJP), unauthorized practice of law (UPL), and Internet piracy of traditional legal services. At the same time, an optimistic view of 21st century lawyers as trusted advisers, information brokers, and peacemakers emerged.

"Legal disputes are legion. Opportunities for lawyers are greater than at any time in history. Whether we have the wherewithal to reach those people and solve those problems is quite another question," Munneke said.

Seven principal themes threaded throughout the conference: competition from other professions, self-reliant consumers, the changing demands on the courts, client values, nontraditional roles for lawyers, interdisciplinary education, and the need for regulatory reform. This article summarizes the major themes and viewpoints presented during the conference.

Accountants: Not Just for Taxes Anymore

Competition is slicing into the professional service business that once was the sole province of lawyers, according to Charles F. Robinson, a Clearwater, Fla., elder law attorney and frequent author and speaker on the future of the legal profession. Accountants, bankers, tax consultants, insurance agents, employee benefits administrators, and real estate agents all provide legal information in the routine course of business. For lawyers to suggest that these service providers are engaging in the unauthorized practice of law would appear self-serving, to say the least.

In the competition for the professional services market, the accounting profession is poised to take the lead. Seeing its livelihood threatened by software programs such as QuickBooks™ and TurboTax™, the accounting profession set out to reinvent itself. "The American Institute of Certified Public Accountants spent $20 million to find their target for new business - ours," Robinson said.

The AICPA polled members and professional organizations nationwide to identify the primary values, competencies, and services that distinguish their profession. From the research, the organization issued a statement that identifies the profession's core purpose as "making sense of a changing and complex world" and positions its 330,000 members as "the trusted professionals who enable people and organizations to shape their future."

Auditing and tax preparation services provide accountants with periodic, ready-made opportunities to market other professional services to clients. Unfettered by lawyers' rules of professional conduct, accounting firms now offer a broad range of value-added services that afford clients convenient, seamless service.

"In Minnesota, accountants don't operate auditing companies. Auditing firms are 'loss leaders' - subsidiaries that bring in business for other service entities," said Phillip A. Cole, a Minneapolis lawyer and frequent author on the subject of MDPs. "We no longer possess a monopoly in the services we provide, outside of what you see in court."

Case in point: Accounting giant Arthur Andersen is now the largest law firm outside the United States, with lawyers practicing in 35 countries worldwide, according to Harry Ruffalo, an attorney, CPA, and recently retired partner with the firm. Ruffalo oversaw the creation of AA's first law firm in Paris, where French law required tax be practiced in the context of a law firm.

Now an adjunct professor at the U.W. Law School, Ruffalo told the group that clients are looking for competence and interdisciplinary approaches to problem solving. "Lawyers are trained to work as individuals, but we need to work as a team. We can't know it all. We have to collaborate with others who have the expertise," he said.

Competition from Within

Accountants aren't the only ones vying for a share of the professional services pie. Lawyers also must compete with other lawyers. Here's why:

• Lawyer supply exceeds demand, according to Robinson. Many new lawyers are forced to accept low-paying commodities work or seek other employment to make a living and repay college loans. The oversupply of law school graduates is often cited as one reason why the public perceives lawyers as ambulance chasers and hustlers willing to do anything for a fee.
• Law firms with a mastery of technology are more productive, further increasing the availability of legal services.
• Boutique law firms, many of them extraterritorial, draw business away from Main Street law firms by proffering expertise for complex civil matters.
• Trade associations give away bread-and-butter legal services to their members, Robinson pointed out. Private practitioners are called in only when it's time to pick up the pieces.
• Alternative dispute resolution siphons business away from traditional litigation practices, according to some trial lawyers.
• The justice system is being forced to make the courts more accessible to the growing number of pro se litigants.

"In Florida, nearly 80 percent of the cases in family court involve at least one pro se party. The rules of civil procedure are gone," Robinson said.

Indeed, Gregg M. Herman, a Milwaukee family law practitioner and conference participant, estimated that nearly 70 percent of family cases in Milwaukee now involve litigants who represent themselves in court. Herman's estimate is backed up by the Wisconsin Supreme Court's pro se report.

The Pie Gets Smaller

Pro se representation is part of a larger trend toward "disintermediation," which in simple terms means "out with the middleman." Armed with more education and more access to information than any time in history, consumers are finding their own way to products and services they need, whenever and wherever they need them.

Intermediary-based service businesses expected to be "toast" in the near future include banks, travel agents, insurance, mortgage companies, stock brokers, and lawyers - particularly litigators, Robinson reported. Legal information and forms are readily available from more than 10,000 legal Web sites, such as www.SharkTank.com ("attorneys ready to attack your case"), www.nolo.com ("Ask Auntie Nolo: commonsense wisdom for your personal legal dilemmas"), and www.wtphq.com, the We the People paralegal franchise that advertises "No lawyers! Save money!"

Barron County Circuit Court Judge Edward R. Brunner said the legal system already is inundated by people with a "Home Depot" do-it-yourself mentality. "Lawyers are no longer the sole gatekeepers. People are more educated and they believe they are competent. They view the legal profession as providing only very adversarial, confrontational approaches to their problems," Brunner said.

Even though they may be knowledgeable and well-informed, unrepresented litigants still need help navigating the court system, Brunner said. Many pro se litigants pay the filing fee and demand that the courts - like other government agencies - help them exercise their constitutional right to self-representation. By giving basic directions and providing simpler forms to pro se litigants, are courts taking business away from local practitioners?

"You've already lost it. That's the message," said Brunner. "The legal profession has lost the public's trust. We have to find a way to restore the public's trust and confidence."

A Waukesha County survey of pro se litigants found that one-fifth represented themselves - not because they couldn't afford a lawyer - but because they didn't trust lawyers and thought they could do better, according to Chief Judge Kathryn W. Foster, Waukesha County Circuit Court. The county opened a self-help legal services center in January to assist divorce clients who choose to go it alone.

Private practitioners will find new business opportunities in helping people help themselves, Foster predicted. "By 2010, the Milwaukee law firm that recently opened and began advertising unbundled legal services and Saturday self-help clinics will not be the exception," she noted. (For more information, see "Going Pro Se" in the December 2000 Wisconsin Lawyer)

Many Cannot Afford Lawyers

While lawyers scrabble for business, the need for legal representation for low- and middle-income people who cannot afford legal representation continues to grow. "Litigation has become a sport for the wealthy," Robinson said.

Judge Margaret J. Vergeront, Wisconsin District IV Court of Appeals, told the group that lawyers should not lose sight of their responsibilities as officers of the court. Because more business and civil disputes are resolved elsewhere, the work of the courts has changed. "The courts are not seeing cases where the bottom line is money. The issues at stake have more to do with liberty, protection of children, and constitutional rights," she said.

One of lawyers' core professional responsibilities is to serve the under-represented, said Louise G. Trubek of the Center for Public Representation Inc., and the U.W. Law School. Trubek recently conducted a study of agencies that are providing multidisciplinary services to low-income consumers and at-risk families.

"Consumer groups that spoke out in support of MDPs before the ABA Commission were not acknowledged at all. We could distinguish Wisconsin if we bring that issue into the debate," Trubek said.

What Clients Want

Winning back the public's trust will require more than a well-crafted vision statement setting forth lawyers' core values and competencies. Lawyers will need to take a seat on the other side of the desk and look at the profession from the consumer's viewpoint, said Ann L. MacNaughton, a lawyer-consultant who provides litigation risk management, mediation, and settlement advisory services for the Peterson Risk Consulting Practice of Navigant Consulting Inc., Houston, Texas.

Throughout the conference, participants were asked to consider what consumers value most. For example, clients value:

Choice. Clients are not interested in paternalistic "lawyer knows best" platitudes. From their research, they are well aware they have alternative paths to their goal. They seek professional guidance to find their way through the multitudinous choices before them. Clients want to choose the type and level of service that meets their individual needs. A mediation client, for example, may want to select among direct negotiation, assisted negotiation, or adjudication, MacNaughton said.

Expertise. More empowered clients demand more competency from their lawyers, MacNaughton said. Clients expect lawyers and other professionals to bring a high degree of specialized knowledge to the table. They are willing to pay for expertise they cannot find on the Internet or at Barnes & Noble. Knowledge of legal precedent is valued less than innovation and creativity.

"Business lawyers will need to be able to partner with accounting, engineering, and other consulting businesses to provide a broader platform of services," said Daniel J. Eastman, a Milwaukee lawyer, business executive, and chair of the State Bar Business Law Section. "If the law firm infrastructure isn't here, business won't be here. We need to be able to provide sophisticated business advice if we want new-age businesses to stay in Wisconsin and not migrate to Chicago, the Twin Cities, or Silicon Valley."

No surprises. Clients want predictability. They want to know what they're buying, when they can expect it, and how much it will cost. Clients rarely expect something for nothing. They understand that benefits - minus the cost of production - equal value. How do clients determine the value of legal services when lawyers cannot tell them the cost? How do clients measure benefits when lawyers are unwilling to predict results? Half of the equation is missing; the other half is unquantifiable.

"You're going to have to produce value before people start paying. Clients don't want to hear a clock ticking," said Libby Hartman, a panelist and director of change management, Cap Gemini Ernst & Young, US, Seattle, Wash.

Cost-saving technology. Clients expect lawyers to milk technology for all the productivity it's worth. Lawyers who balk at using technology for communication, legal research, trial exhibits, and basic administrative functions (calendaring, time and billing, document assembly, and so on) will soon be eating the silicon dust of service providers who have capitalized on technology.

"We can't go to a client without talking about life-changing technology, including the Internet, data warehouse systems, sophisticated decision-making models, and communication tools," Hartman told the group.

Integrated services. Clients want new service models that center around their needs, not law firm hierarchy or professional rules. They don't want to hear, "I can't help you with that. You will need to talk with an investment adviser." They want to tell their story once, and in doing so, transfer the responsibility to shoulders they believe are broader than their own. They don't want to shop around for competent service or worry that they will neglect an important detail.

When accountants refer clients to lawyers, they often accompany clients to the law firm to act as their interpreter, leaving no question about their place in the clients' inner circle. "Every lawyer ought to want to be the trusted adviser who manages all the different matters of concern to the client," MacNaughton said.

Dignity. Clients want to resolve disputes in ways that preserve relationships and reputations. For example, as companies merge and former adversaries become new confederates, business clients want cooperative resolutions. Burn-and-raze tactics don't work in an environment where "yesterday's competition is today's strategic alliance," MacNaughton said. She cited a legal dispute in which the client would have won in court, but not without creating bad blood between the two companies. "Hundreds of millions of dollars in future business were being blocked because of a $25 million damages suit," she said. The marketing budget funded the settlement.

Peaceful resolutions are needed in personal disputes as well, said Herman, a proponent of a new, collaborative divorce program. "Divorce clients don't want to be dragged through litigation. When the lawyers are gone, these people have a life together co-parenting their children," he said. "We need to be zealously advocating for better interests of all, rather than zealously fighting for the interests of one."

Munneke noted the mandate for zealous advocacy no longer appears in the Rules of Professional Conduct. "The 'mad dog' talk has been relegated to the comments section," he said.

Integrity. Honesty, fairness, independent judgment, and confidentiality are qualities lawyers believe separate them from those who are not bound by a professional oath. If confidentiality and independent judgment distinguish lawyers from the competition, why doesn't the profession tout them? Do clients know that other professions are not bound by the same rules? Probably not.

"We are not the only ones who can keep confidences," said John A. Busch, a Milwaukee attorney who served on the State Bar's MDP Committee. "We like to believe attorney-client privilege is a competitive advantage. How many here have invoked attorney-client privilege in front of a jury? It's like throwing a dead cat at a dinner table. You lose."

Results. Bottom line: Clients want results. Whether they find answers in a traditional law firm, a multidisciplinary practice, or a virtual service entity consisting of the best of the best advisers, clients want better, cheaper, and faster results.

Educating the Renaissance Lawyer

Reading the law will fall short of adequately preparing students for the creative problem-solving expected of 21st century lawyers, Munneke said. Forward-thinking students will challenge law schools to develop curricula that draw upon many academic disciplines - for example, economics, science, medicine, engineering, psychology - as well as foundational courses in communication and technology.

In a survey of recent law school graduates and employers, the respondents ranked effective written and oral communication and computer-assisted research among the most-needed skills, reported Carolyn Lazar Butler, director of Assessment 2000, U.W. Law School.

Ethics Rules: Pedestal or Millstone?

Discovering what clients want, delivering it, evaluating client satisfaction, and improving the delivered goods in a continuous feedback loop (what Hartman called customer relationship management) sounds like commonsense business strategy. The catch is, the ethics rules weren't written for people who want to practice law and free enterprise.

If the legal profession is to evolve and survive, the rules must change, said State Bar President Gary L. Bakke. By the end of the conference, the general consensus was that multijurisdictional practice (at least for transactional law) is inevitable, and the enforcement of unauthorized practice of law statutes will be limited to cases involving consumer fraud.

One issue remained. How will the bar respond to multidisciplinary practice?

The participants debated the MDP issue, in lawyerly manner, by questioning some of the fundamental principles underlying the ethics rules:

• Is the private practice of law a business or a profession?
• In the client-centered service model, are lawyers squandering their professional judgment when they cater to client demands?
• Can lawyers maintain independence and confidentiality if they join forces with others to deliver integrated, value-added service?
• Who will own and manage professional service entities?
• Are the ethics rules written for trial lawyers appropriate for the remainder of the bar?
• What distinguishes law from other professions, if not the Rules of Professional Conduct?
• How many lawyers will surrender their law licenses to become consultants?
• Can lawyers hold fast to their professional values and still earn a living?

On the Horizon

No one expected to answer the questions raised in less than 48 hours, but there was some confluence of opinion. Six initiatives took form:

Confront the inevitability of change. "Look at two contradictory examples for dealing with the future. Doctors and the health care profession stuck their heads in the sand during the discussion about managed care. They have virtually lost their professional independence. CPAs, on the other hand, took an aggressive stance on the future of their profession and delivered tools to help members deal with the future," Munneke said.

Identify the core values and competencies of the profession. "We don't need to spend $20 million. We need a grassroots consensus on what our core competencies and values need to be," said Robinson. "Join with other bars to engage in an AICPA-type vision project for law practice."

Measure the value of service, not the cost of time. "Nothing galls me more than when a client objects to my hourly rate, then a consultant says 'we can do this for $64,000,' and the client asks, 'Where do I sign?'" said Dennis J. Purtell, who practices health care law in Milwaukee. "We should not forget that we are consultants. As a profession, maybe we need to resurrect the concept of 'attorney and counselor at law,' or 'attorney and barrister' for those folks who do trial work, or 'attorney and scrivener' for those who do backroom, commodity work. These people would earn money differently and market themselves differently, based on the value of the service they provide."

Encourage education reform. "If law schools can shake off their Socratic legacy and build on new interdisciplinary models, and if they can treat litigation as one alternative among many problem-solving approaches, they will continue to remain relevant and prosper," Munneke said.

Challenge the ethics rules. "We are never going to reach a consensus on the rules. That's what makes our profession vibrant," said Jeffrey J. Mawicke, a Milwaukee attorney. "Forget consensus. How do we form a level playing field where we all can play?"

Look for leadership. "I fear that we are on the brink of Balkanizing the profession of law. We are going to have different rules for different jurisdictions, state by state and practice area by practice area," said Bakke. "We are in strong need of leadership. Wisconsin cannot do it alone, but we have to do our part."

Wisconsin Lawyer