One rule of smart use of social media is to not immediately blog or post in response to something that makes you unhappy or upset. But we lawyers think we know when it is appropriate to bend the rules, don't we?
So the subject of my unhappiness is the post It’s Payback Time, Or Lawyers May Have Sown The Seeds of Their Own Destruction by Kenneth Grady. This piece is illustrated with a Dickensian picture of a stingy, mean lawyer working by candlelight. The opening is "The legal profession has never been filled with saints. Long before industrialization gave an adrenaline shot to the profession, lawyers were admired for their skills, though not known for their charitable ways." If that is your view of the history and current standing of our profession, maybe you are not associating with the right lawyers. Because we have our sinners, but we also have our saints. And from my perch, the saints outnumber the sinners.
I want to say at the outset that Kenneth Grady is one smart lawyer. In fact if I were to assemble a short list of the people who write and share the most significant and forward-thinking material about the legal profession, he would be included. Once I was quoting so much from some of his work in a paper I was writing I asked him for reprint permission. He agreed, of course, and thanked me warmly for asking instead of just using copy and paste. But he breathes the rarefied air of the very large law firms with hundreds (or thousands) of lawyers. I do understand his post reflected his frustration that when he asked his readers for huge "Moon Shot" ideas on ways to improve our legal system or law firms and those who responded mostly discussed making more money. While I do share his disappointment, I am less surprised for reasons I will discuss shortly.
But as far as lawyers all being just about making money, my experience as a young lawyer was just the opposite. I recall being amazed at how much legal work lawyers did and were expected to do for no pay or low pay. I have shared with many young lawyers that I once represented a client for almost a year with multiple court hearings for the court-appointed lawyer fee of $500 because I happened to be standing in the back of a Cleveland County, Oklahoma courtroom waiting for a matter to conclude so I could get the judge to sign an order. I didn't resent that duty in the slightest. I was, and am still, proud to be considered an officer of the court and was proud my client ultimately had a much better outcome than would have otherwise been the case. But that wasn't just me, almost all of the local lawyers took their share of court-appointed cases, with the more simple cases also being great training for new lawyers and the judges being aware of who should be court-appointed for a murder case. Certainly times have changed since then and for a variety of reasons, many states rely on different methods of court appointments, including full time public defenders, which I assume works well in many places, but reportedly has turned into a mess in Louisiana.
I would also point to a recent study indicating that solo practitioners make 35% less in inflation-adjusted dollars than 45 years ago. Not precisely all about the money for certain.
Mr. Grady also wrote "we need to accept gracefully the fact that among the three learned professions (divinity, medicine, law), lawyers cannot claim the frontrunner spot except when it comes to making money." Certainly we cannot compare ourselves to the clergy for saintliness, but I would note that our Rules of Professional Conduct bind us all to non-money-making public service. ABA Model Rule 6.1 discusses pro bono service to those who cannot afford to pay. (The language of this rule varies among the states.) Rule 6.2 discusses the duty of accepting court appointments. Rule 6.3 and 6.4 also discuss donation of lawyer time for the public good.
I also take issue with the the overly broad sentence that "the efforts of state bar associations to prevent the demise of lawyers simply hasten the process of destruction." Lawyers volunteer time here in the Oklahoma Bar Center almost every week to work on improving our justice system and the lives of the citizens of our state. Just this fall, Oklahoma Access to Justice Commission, the ABA and the Oklahoma Bar Association launched an online resource to provide those of limited means free answers to basic legal questions. Volunteer lawyers flocked to provide their time to help others who need it with absolutely no benefit to themselves. Many other states have done the same. You can see the result at Oklahoma.freelegalanswers.org. We are working on other ideas even now.
The problem with asking mega-firm lawyers for a moonshot approach to radically change the world is the very nature of a firm with hundreds or thousands of lawyers. They have amazing expertise in their area of focus, but would have to consult a partner in another practice group for legal knowledge outside of their focus. Unless they have had a personal situation, they wouldn't have a clue in most cases of the challenges of a battered spouse needing legal help or what a lawyer might do for a family family facing eviction. Our laws, rules and regulations are much more complex than decades ago, with lawyers often taking the heat for what is really the responsibility of lawmakers and regulators. As futurist Jordan Furlong opined, "In the 1980s, you could probably know pretty much everything important about wills in your state, and still have room left over in your mind palace for the fundamentals of divorce and DUI defense." Today he says, he is not so sure.
For a long time now, law firm practice group leaders have been told to focus on profitability. So I'm not too surprised that when asked for deep thoughts on innovation, their first response was along the lines in which they had been thinking. That doesn't generally reflect negatively on them so much as it discloses their recent focus. To plan a moon shot, ask the astronauts. For me, I think of the critical need to embrace today's law office technology and invest in office automation. A larger law firm concerned about declining market share would be well served to read Jordan Furlong's post yesterday "You’re not selling what we’re buying." An over-worked public defender in Louisiana would have an entirely different response.
But I agree strongly with Kenneth Grady on one point. We do need moon shots --many of them!