Sunday, March 20, 2016

The Next Big Thing in Law Practice

Limited scope representation (sometimes referred to as "unbundled legal services") may not be THE next big thing in law practice, but it is certainly A next big thing.  It's an opportunity waiting to be seized by current and future attorneys, IF we are astute enough to make it happen.
Like many things that affect the business of law, we will not be helped by ANY of the entities that ought to be helping.  We will not be helped by:

-  Law schools
-  The Judiciary 
- The organized bar
-  Legislatures at any level
-  Most of our colleagues

None of these entities care much about helping lawyers in practice, including the legions of unemployed and under-employed new attorneys.  Lawyers in their own practices all know that none of those entities actually help lawyers in practice.  They mostly pay lip service to helping "the profession" and "the public".

The really sad thing is that encouraging limited scope representation would benefit vast numbers of middle and lower income citizens, whose need for legal services is grossly underserved.  

Large new players (notably LegalZoom and Avvo) have entered the market for these underserved citizens, using the disingenuous phrase "access to justice" to describe their offerings.

There is undoubtedly a gap between legal needs and the perceived availability of legal services.  Sometimes there is truly a gap between what is needed and what potential clients can actually afford.  Purveyors like LegalZoom and Avvo attempt to commoditize various services, make them "affordable", and therefor appealing.

What they are actually doing is "unbundling" various legal services and offering "limited scope representation".  They are stepping in and filling the gap between what is needed and what is perceived to be available.

Can private lawyers offer AFFORDABLE legal services?

YES, but only IF they define what the different services are, make clear what they are going to do, and make the pricing for the various services CLEAR.

Doing or not doing this is a choice.  Lawyers have traditionally and collectively decided not to do this.  And so, we have this paradox:  While the law schools and bar associations scratch their heads in wonder over the declining "job market", there is a HUGE demand for legal services of all kinds.  This is an entrepreneurial opportunity that is lost on those who think law is about "jobs".
Law practice presents great opportunities for the entrepreneurially minded.  For "employee mentality" however...not so much.
In many parts of the country, local bar associations are belatedly recognizing the potential benefits to the public in unbundled legal services.  New York is woefully behind in this, though there was recently a barely publicized symposium about this.  The only concrete action to come from this was support for government funded legal access programs and law school clinics like "lawyer for the day".
When I suggest features of limited scope representation (document prep OR for appearing in Court on a one-time basis,) to experienced practitioners, they often express the fear that "once you file an appearance you are IN the case".  I understand the fear.  Would most Judges (or court clerks) permit an attorney to file a limited Notice of Appearance?

Probably not, but any potential problems with this could be easily solved.  The reason they would discourage it is the potential inconvenience to THEM.  Yes, sometimes there will be a client who doesn't understand the limitations of such an appearance (as much as it might be clarified or explained or written).  

The upside to clients and the courts would be massive.  Legions of pro-se litigants (as exist in Housing Court, Family Court, Surrogate's Court, Civil Court and in immigration matters) are detrimental to litigants and the court system.  

I don't think it can be argued that clients do better when they are represented as opposed to pro-se.  There is value in what lawyers can do in a court setting, both substantively and in the harder to quantify aspect of understanding and peace of mind.

Would clients pay a fair price for such value?  I'd guess yes, and it is certainly going to be worth the effort to find out.

I tend to advocate for practicing lawyers first.  Hey - we have an interest in this too!  Can there be value to lawyers in limited scope representation?  YES, but only IF....

- We clearly and logically price our services.

-  We work efficiently.

-  We offer true value, presented with clarity and transparency.

-  We make our services known to the potential clients.

In other States where unbundled legal services has been encouraged, an interesting thing happened....MANY times when a limited scope appearance didn't finish a matter, the client hired the attorney to complete the case.

It's pretty clear why that happens:  Client realize the actual value the attorney provides.

We ought to recognize our real value too!

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