Wednesday, August 22, 2012

Two articles in today's Law Bulletin suggest structural flaw in the legal profession

Today's Chicago Daily Law Bulletin carries two articles that expose what may be a structural flaw in the legal profession itself.

Too big a claim, you say? I believe I can back it up.

First, read Jerry Crimmins' front page story, "Increase in law firm head count exceeds the demand." Crimmins writes that two independent reports, the Citi Midyear Report from the Citi Private Bank Law Firm Group and the Peer Monitor Index Report from Hildebrandt Institute, have concluded, "An increase in lawyer head count in U.S. law firms exceeded demand for legal work in the first half of 2012."

The surveys cover the bigger firms, of course -- the "silk-stocking" firms, the "white shoe" firms (when was the last time any big firm partner actually wore white shoes?) -- the firms that have hitherto set the pace in all the partner income surveys (per Crimmins' article, 114 firms were surveyed by Hildebrandt, while 176 firms were surveyed by the Citi Private Bank).

A lot of these firms slowed hiring and shed talented attorneys at the height of the Great Recession. It was thought that recent hiring increases portended a return to business as usual.

But these surveys suggest otherwise.

Crimmins quotes Joseph B. Altonji, a law firm consultant and co-founder of the LawVision Group as saying that "demand for law firm work 'never recovered' from the drop at the start of the recession in 2008" and probably will not recover "to recover to prerecession levels 'even if the economy gets better.'"

Meanwhile, on page 6, the Law Bulletin reprints an AP story by Dave Collins under the headline, "More people go to court without representation."

Collins begins by focusing on one pro se litigant, Jennifer Garcia, a single mother of two, who has gone to court representing herself on various matters several times over the last three years. Collins writes, "Garcia is part of a crush of people who are representing themselves in the nation's civil courts because they can't afford lawyers, who typically charge $200 to $500 an hour. The boom has overwhelmed courts and sparked new efforts to get attorneys to meet what the American Bar Association says is its professional responsibility to offer free legal services to people in need."

This has been the traditional response of the legal profession to pro se litigants: All (or nearly all) pro se litigants are poor people and we lawyers, better educated and more fortunate, must volunteer to help them, without cost, pro bono.

It is a generous, laudable response. This spirit animates the Illinois Supreme Court's recent adoption of Rule 10-100. The impulse to provide professional services on a voluntary basis has its roots in many religious and ethical traditions (see, for example, Matthew 14:7, "The poor you will always have with you, and whenever you wish you can do good to them....").

But are all these new pro se litigants really "poor people"?

Per Collins' article:
Several states report high percentages of civil and family cases with at least one self-represented person. In Connecticut, 85 percent of the approximately 45,000 family law cases in the 2011 fiscal year had at least one self-represented party.
In other words, pro se litigants are starting to show up with increasing frequency in courtrooms that hear matters other than collection cases or mortgage foreclosures.

To meet this influx of unrepresented litigants, court systems are increasingly stretching the definition of "voluntary." Illinois lawyers are already required to report whether they perform any pro bono work or donate to legal charities and, if so, to reveal how many hours they've worked or dollars they've given. According to Collins' article, New York State will now require attorneys in that state to 'volunteer' 50 hours of pro bono service in order to keep their licenses.

Judges privately express frustration with dockets increasingly clogged with pro se cases; even careful viewing of The People's Court turns out to be less than optimal training for real-life courtroom appearances. Given a choice, most judges would want all parties before them to be represented by counsel.

But the trend now is otherwise.

So: On the one hand we have slowing demand for legal services, even among well-heeled or corporate clients and, on the other, we have a huge uptick in pro se litigants in our courts.

What does that tell us? Even allowing for inescapable truth that the Great Recession has swelled the ranks of truly poor people, I submit that these two stories, taken together, suggest that those that can afford to hire us are doing so as infrequently as possible; those who might be able to afford to hire us are choosing to try to go it alone. And that means we may be pricing ourselves beyond the reach of our customers. In a time when many new lawyers can't find work and established lawyers are tightening their belts, we have many prospective clients choosing not to use lawyers at all, or to use them minimally. I think this may constitute a structural flaw in our profession.

Interestingly enough, a third article in today's Law Bulletin suggests one possible explanation for how lawyers are pricing themselves beyond the reach of clients -- a topic to which I hope to return in a few days. (And, no, it's not hourly rates.)

3 comments:

  1. This is an excellent blog post which candidly discusses the problems of the legal profession. The long run issue is with outsourcing of routine functions to other countries and to computers. These problems can all be traced to the law schools which continue to crank out 2X the number of graduates needed each year. While this makes good business for the law schools, it is dreadful for the graduates who are assuming student loans to graduate.

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  2. Americans value self-sufficiency. They enjoy do-it-yourself projects. They like to pump their own gas and check out their own groceries. If they can do their own research about legal (or medical) issues, they tend to think that no professional, no matter how brilliant or well-educated, can possibly match their own ability to figure things out for themselves. Additionally, lawyers probably have to deal with more trust issues than doctors, since you charge for things you do without the client present. People don't have a good sense of how much legal representation is going to end up costing.

    I suppose there may also be the issue that the quality of some of the pro bono lawyers may well be far superior to what the average person would get if they went out and retained the guy advertising on the bus shelter.

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  3. This is a very well done blog post. It is not just civil courts feeling the pain. Pro Se defendants in our criminal courts routinely misrepresent the ability to pay or the judge will appoint a public defender to not have to deal with the non-represented defendant.

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