No one really knows how the game is played // The art of the trade // How the sausage gets made // We just assume that it happens // But no one else is in // The room where it happens
Since graduating from law school in 2015, I’ve spent a lot of time in the room where it happens. I’ve served in leadership roles on local, state, and national bar associations; I’ve traveled around the country speaking with lawyers and law students of all sorts; and I’ve helped the sausage get made.
If I have learned one thing from these experiences, it’s that the legal industry as we know it is facing drastic upheaval. We in the legal industry are standing at a precipice; on one side catastrophe, on the other a chance to find and live our core value and create a better future for all.
I wish I could indulge our natural desire for easier, less costly middle road. But as a young lawyer with another 35+ years ahead of me, that is not what I see. Further, I believe that all lawyers, young and old, have a duty to be engaged and not just assume good will happen.
1. “I’m not dead yet!” – Monty Python
The current events in Washington State’s legal world are a perfect example of the drastic upheaval the legal industry is facing. So what exactly is happening in Washington?
Most notably, the Washington State Supreme Court (which holds ultimate authority over the regulation of the legal profession) stepped in this year and suspended all activity of the Washington State Bar Association (WSBA) as it related to the bylaws which govern WSBA activity. See Letter from Chief Justice Fairhurst to WSBA officials, J. Sept. 21, 2018.
This suspension was put into effect indefinitely as a result, at least in, part of the US Supreme Court’s decision in Janus v. AFSCME. When or whether the suspension would be lifted would depend on the results of a comprehensive review by the Supreme Court of the WSBA’s structure and an answer to the question, “Can and should unified bar associations exist?”
At the heart of that question is a struggle between competing interests. The first two prongs of the WSBA’s mission are “to serve the public and the members of the Bar.” This raises a simple question: Are attorneys by themselves capable of putting the public first?
In the days leading up to the Supreme Court’s stepping in, members of WSBA’s Board of Governors had been pursuing an aggressive agenda. Motions had been put forth to reduce the power of the WSBA’s Executive Director and President and efforts were being taken to eliminate appointed at-large positions on the Board of Governors. The most contested at-large positions had been created by the Supreme Court to reserve seats on the Board for members of the public and non-lawyer, licensed legal professionals (Washington’s limited practice officers (LPO) and limited license legal technicians (LLLT)). Those seats have yet to be filled. Various efforts had also been taken to reduce the annual licensing fees for attorneys and increase the licensing fees for LPOs and LLLTs, all of which had been rejected by the Supreme Court. In other words, things weren’t looking great in Washington. Cf. Kamb, Lewis “Amid turmoil, judge rules Washington State Bar Association must disclose correspondence that explains director’s firing” Seattle Times (Apr. 14, 2019). There had even been a push in the state legislature to disband the WSBA entirely. See HB 1788.
But the WSBA, is not dead yet! In many ways, Washington is still striving to lead the nation toward a brighter future for the legal industry. The fledgling LLLT program, an effort to expand the type and cost of legal aid available to consumers, has shown that it is here to stay, as there are ongoing conversations about how to expand it. A workgroup has been convened to reexamine the definition of “the practice of law” in an effort to encourage online service providers to offer low-cost legal services to Washington consumers. And the state’s Access to Justice Board continues to strive tirelessly to make our court system accessible to all. Even in the rooms where debate is quite literally raging, I do find hope in the knowledge that some of my colleagues in the Washington Bar are profoundly invested in doing the right thing.
2. “Are we so different you and I?” – Lucius Aurelius Commodus –
Debate is heartening because as you delve deeper into the issues facing the WSBA (whether it’s cutting fees or ditching the WSBA entirely), it becomes abundantly clear that many lawyers simply don’t see value in bar associations anymore.
On this front, however, the Washington Bar is likely a bellwether for the broader legal profession. In 1978 more than 50% of lawyers in the US were members of the American Bar Association. By 2018 that number had dropped to 22%. See McDonough, Molly “ABA executive director urges increased efforts to reverse decline in paid membership” ABA Journal (Feb, 5 2018). These dropping numbers are despite the fact that technology has made engagement in national organizations so easy it can be done on a lunch break from behind your desk (you can even edit a brief in another window while you do it).
On the local, state, and national level, it’s getting harder and harder to find attorneys willing to accept volunteer positions in leadership roles. Instead of hard won elections, attorneys are being appointed or some positions just remain empty. These leadership roles determine the rules and regulations that will define the future of the legal industry. Yet, around the country lawyers are choosing not to show up.
In Washington, the potentially industry-changing proposal to redefine “the practice of law” almost slipped by without any input from those in the legal industry who would be most affected by the change. Had it not been for the passion of about five people serving on a committee together, many stakeholders wouldn’t have known until the proposal had taken effect.
When you realize that these same issues are playing out on the national stage, it’s concerning. The ABA, which now represents less than 25% of U.S. attorneys, writes the Model Rules of Professional Conduct, which regulate attorneys in forty-nine states, D.C., and four territories. What all of this means is that there is a lot of great work that either isn’t being done, or is all being done by just a few people.
3. “It’s what you do after you fail that determines whether you are a leader or a waste of perfectly good air.” – Sabaa Tahir –
How did we get to this point?
I have debated this question a lot, but one simple answer keeps coming back to me. For decades now, lawyers as a whole have been wildly successful and our success has blinded us to the fact that we are utter failures. Lawyers believe that because we are so successful (financially and in keeping out competitors), we must be doing a tremendous job serving the public. But the numbers tell a different story.
For example, a Washington civil legal needs study showed that more than 75% of legal needs go unmet and low income families have, on average, more than 9 unresolved legal problems in a given year. Still, how do you convince upper-middle class professionals within a few years of retirement that the business model is not working?
What we are seeing play out in Washington State is two manifestations of the “lawyers are successful” problem. The first is simply apathy. Apathy is what makes you not want to pay your bar dues, it’s what makes calling into a lunch meeting seem more like senseless burden then an honorable duty.
The second part of our success problem is more complex. The members of the WSBA’s Board who are resisting expanding the LLLT program are doing so because they believe that the public can only be served well by lawyers. The debates I have heard are not about whether or not more needs to be done to serve the public; both sides recognize a serious problem. The debate is between those who believe that the solution should be limited to lawyers (lawyers trying harder) and those who see a benefit to a larger legal ecosystem (LegalZoom is helping people, Modria is helping people, even DoNotPay is helping people).
In my view, it is not enough to recognize that the industry is not working well for ordinary citizens. We also have to admit that we, as lawyers, are responsible. Under the privilege of self-regulation lawyers created a business model that excluded competition and profited off of inefficiency. We have been successful at the expense of the public we have sworn to serve. We’ve done this by limiting the types of legal services available to the public to just one: Representation by a lawyer, the Lamborghini of legal services.
While it would be nice if everyone could have a Lamborghini, the reality is that the vast majority of the public would be happy with a Hyundai. Lawyers have failed to serve the public, not because there aren’t enough lawyers or we don’t do enough pro-bono work, but because most legal consumers don’t need or want an attorney. This is a hard reality for attorneys to accept. But if we don’t accept it, then we as a self-regulated profession will be incapable of correcting our failure.
4. “Do not seek to follow in the footsteps of the wise, seek what they sought.” – Matsuo Basho –
As I write this essay, I will forthrightly confess that I don’t know how to solve the problems the legal industry is currently facing. But I am personally committed to working with my peers, young and olds, to find those answers.
What we have now, a unified and self-regulated bar, is a fragile privilege and it is up to us to be worthy of our calling. I do believe that lawyers and the public can be served best through a self-regulated and unified bar. But in order for that to work, lawyers need to remember that the success of a healthy legal profession is inextricably bound to the success of those the legal industry serves.
I was fortunate to have mentors in law school who encouraged innovation and service to the legal profession. And as a young lawyer, I’ve been even more fortunate to work at a law firm that continues to fan those flames. Four years in to my career, I pass that mentorship on by making all of the young lawyers and law students who work with me come to bar leadership meetings. I say make, but the reality is that they are all excited to participate.
While the up-and-coming generation gives me hope for the future, I still don’t know how to make successful, seasoned lawyers see that they can and should be doing more. I don’t know how to inspire passion where apathy has grown (believe me I’ve been trying). What I know is that it is incumbent on all of us to try because what works for some won’t work for all and what has worked in the past is failing us today.