I sometimes like to toot my own horn, like at the first of the year when I posted the 10 trends that lawyers need to follow concerning the practice of law. There, I stated one area of growing interest will be unbundled legal services.
I am not wrong. At the same time as I was posting these trends John T. Broderick Jr., the Chief Justice in New Hampshire and Ronald M. George, the Chief Justice in California, published a op-ed piece in the New York Times entitled A Nation of Do-It-Yourself Lawyers.
I guess what is shocking to many about this DIY Lawyer opinion is that these two powerful bar-tenders are not opposed to the concept. They accept it for what it is and identify the necessity of it.
They argue, because of the economic downturn, many things will not be as they were again. Increasingly pro se litigants have expanded from the "self-represented" poor to those in the middle class and small business owners.
The Chief Judges argue this is a matter of money, or a lack thereof. I agree this is a contributing factor, but I think it is more than that. You can blame in part "prosumers", as identified in Alvin Toffler's Third Wave.
Prosumer is a portmanteau by contracting the word producer with the word consumer. And, although the word has taken on different meanings to different professionals since Alvin Toffler coined the phrase, it refer to it here an individual or a business that gets more involved in the processes it must undertake.
It is true that a prosumer is one that is capable, given our modern technologies and the cloud, of researching all aspects of a legal services or a lawyer's or a law firm's performance, price, social acceptance in relative comparison to other lawyers and law firms and legal issues. It is also true that a prosumer is one that searches for the highest quality product that best meets their personal needs for the maximum amount of money they are willing to spend. And, to do this, the prosumer is not afraid to venture into the distribution channel (in this case meaning the Court system and the law) in order to purchase the legal services needed.
More completely, however, the prosumer represents a blurring of the line between the role of the producer and the consumer. What Toffler envisioned as become so. He envisioned a highly saturated marketplace as mass production of standardized products began to satisfy basic consumer needs. To counter this trend, businesses and service providers would initiate a process of mass customization or the mass production of of highly customized products.
When you think about it, nowhere does this fit best than in the practice of law. The market is not over saturated with lawyers, but it is over saturated with products, like pleadings and legal research and the manipulation of forms and data. Our mistake is confusing these things with the active practice of law. Our goal, as lawyers, needs to be massive customization of this product based on the facts and objectives of each party. In this prosumers are willing to play a part. They are willing to help the lawyer produce the standardized products they are willing or need to consume in order achieve a price point that must be achieved.
This is good for the legal profession and for the lawyers. They are able to greatly reduce their time in a case and the overhead associated with a case by complying with the demands of the prosumer. They are able to eliminate a whole lot of costly infrastructure as a result.
We see this everywhere else in society today. Amazon.Com has grown through ecommerce. Bank of America has grown through online bill pay. New banks are moving to online deposits. Bookkeeping is reduced by Intuit. In each of these examples the leading companies have managed to succeed based on their ability to construct customer relations based upon conversations rather than simple, one-time sales.
We also see this today with services like LegalZoom and other rapid import sites that lawyers use to converse with clients on compiling legal documents that they need.
A tipping point will eventually be reached when lawyers and law firms that ignore this trend begin to suffer.
From the prosumer's perspective, as we are reminded by the Chief Justices, this involves the "unbundling" of legal services, which is a trend that lawyers and most bar-tenders have tried to avoid. This is getting increasingly harder to do, however. Forty-one states now have adopted the ABA model rule, which allows lawyers to unbundle their services and take only part of a cast, reducing costs, in what is known as "limited-scope representation". No longer should lawyers be required to stay in a case from beginning till end.
Unlike many others, the Chief Justices see no problem with this practice expanding and the judicial system will to have to get use to it.
Lawyers will have to adapt to it as well for the practice of law is changing. Are you ready or are you fighting the inevitable?
I have long argued that while economics are a catalyst to the the DIY consumer, technology has been the real game changer. WIth access to easy information, consumers are more empowered. In addition, a new generation of consumers - like my daughters - are accustomed to turning to the Internet for information as second nature. When my family was thinking about cruise trips to take, my 13 you went online and found different trips with prices and ratings. Same when she bought a camera with her birthday money - she researched products and read reviews rather than going to the store to test them out. It's that change in attitude that will allow unbundled services to succeed where they have previously failed.
I have no problem with unbundling in theory, and certainly, it makes sense for discrete matters like LLCs, wills, leases, etc...But I think for ongoing matters, it will pose some challenges and cause us to rethink out ethics obligations. For example, what happens in a case where a lawyer burns through his fee, then withdraws and leaves the client to rely on unbundled coaching services. Is that a result that we want? It will be more likely where unbundling is sanctioned. Likewise, what happens if we are retained to "coach" a client for an appearance in court. If an issue comes up at trial that we didn't explain to the client and it leads to a loss, do we open ourselves up to malpractice exposure? I do not think any of these issues are insurmountable, but they will require some real soul searching. Yes, I know that unbundling is not new, it has been around for decades, but sanctioning it on a large scale is quite a different proposition from permitting it on a limited, ad hoc basis. I am not sure if our profession is up to the challenge.
Posted by: Carolyn Elefant | January 12, 2010 at 06:22 PM