The Future is Now! Bar Leadership Path to the Future Presentation by Charles F. Robinson Clearwater,...

The Future is Now!Bar Leadership Path to the Future

Presentation by Charles F. Robinson

Clearwater, FL

NCBP,NABE,NABF

© 2003 Charles F. Robinson

Today’s Agenda

Why worry about the future? The 2003 environment Trends v. Cycles How to create the profession’s preferred

future


Presentation Materials

http://CharlieRobinsonFuturist.com/




It Feels Like Something is Happening

We feel uneasy We feel tentative We feel angry and frustrated There is competition everywhere we turn Will the massive change we are going

through continue? Can we return to the way it used to be?


Never in history has incumbency been worth less. Examples include:


The real threat is irrelevance.


Chief Justice Major Harding 2/5/2000 Dispute resolution as we know it may be a

dinosaur Must look at reforming the jury system The big issue before the court system is

relevance


Litigation


James A. BaxterClearwater Lawyer

“For the Legal Profession to buck worldwide economic trends has about as much hope of success as mythological King Canute’s efforts to have his men beat back the sea.”


Wired Magazine (January, 1998)

Guardians of the old order are trying their best to hold back change and preserve their power.



Stare Decisis- Walking Through Life Backwards


Bill Gates Warning

”We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten."


Marconi v Sarnoff


“There is no reason anyone would want a computer in their home.”

Ken OlsonPresident, Chairman and Founder

of Digital Equipment Corp., 1977


“This ‘telephone’ has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us.”

Western Union internal memo, 1876.


“I’m just glad it’ll be Clark Gable who’s falling on his face and not Gary Cooper.”

Gary Cooper on his decision not to

take the leading role in “Gone With the Wind”


“The bomb will never go off. I speak as an expert in explosives.”

Admiral William Leahy,US Atomic Bomb Project


“Everything that can be invented has been invented.”

Charles H. Duell,Commissioner,

US Office of Patents, 1899


What is our vision of law practice in 2010 and beyond?


What are the deepest beliefs in our profession?

What business are we in? What are the 10 things we

believe about law practice?


Ten Toxic Assumptions of the Legal Profession- Bill Cobb


2. Lawyers have a monopoly on the interpretation of the law.


10. Practice of law will always be regulated by the courts.


What are Profession’s Core Values?-Traditionalist Take Confidentiality Independent judgment (Competently exercise

independent judgment) Avoidance of conflict Loyalty to clients


Core Values- Professionalism Take

Honor Integrity Nobility Decency Respect Character

Paul R. Lipton

Alternative amoral technicians


NH BAR OUTREACH 2000

Can the legal

profession

survive

the “dot.comet”?


Lawyers charge excessively and add significantly to the cost of a legal need.

Lawyers add significantly to the time it takes to satisfy a legal need.

Lawyers complicate already-complicated problems.

Results of a poll conducted by Franklin Pierce Law Center graduates of their clients:


Law School Client Survey cont

Lawyers don't take time to learn enough about a client's legal need, and then do not adequately address the need. When they address the need, they are paternalistic and arrogant.

Lawyers don't know when to step aside. Lawyers' expertise in litigation and advocacy

impedes problem solving.


Jennifer James - Lodge (Guild) Mentalities

Education

MedicineLaw


Guild Power Dimensions

1. Power and control over the association- right to create own rules

2. Control over the workplace• Pace of work• Number and status of workers• Pricing of output


Guild Power Dimensions Cont

3. Control over the market

4. Power over the relation between the guild and the state

State had to grant monopoly Right to control availability = right to set the

price


Our Guild

Legal Profession Operated as a guild in US for

many years- Monopoly on legal services- We could define legal services as we wanted Death of the Guilds- Professions, States, and the Advance of Capitalism

1930 To the Present

Elliott A. Krause 1996


Guild Characteristics

Bar determined Who could be a member Standards for service quality Pricing (minimum fee schedules) Quantity of service to be performed


Guild Status Decline

Goldfarb 421 U.S. 773(1975) End of pricing control

Bates 433 U.S. 350 (1977) Advertising allows for

competition Guild status gone since

1975 but many in denial in 2003

Cycles and Trends


Cycle

An interval of time during which a sequence of a recurring succession of events or phenomena is completed

Middle English cicle, from Late Latin cyclus, from Greek kyklos circle, wheel, cycle


Trend

a line of general direction or movement a prevailing tendency or inclination the general movement in the course of time of

a statistically detectable change; also : a statistical curve reflecting such a change


Trends v. Cycles

Cycle says wait it out and it will come back. Weather Markets

Trend says will not likely return to status quo We must deal with it or Let it take us wherever the trend goes


Trend or Cycle

1. Tort “reform”


1.Tort Reform

“Economically destructive litigation” US most expensive tort system in the world $179 billion 2002 direct costs

$636 per capita 150% of amount spent on pharmaceuticals

Bills pending in 20 states 11 states have passed legislation

“Trends” Volume 1, Issue 3, July 2003


Tort Reform Targets

Joint and several liability Size of jury awards ($250,000) pain &

suffering Asbestos liability Medical malpractice Judicial review of jury awards


Trend Newsletter Predictions

Asbestos special legislation limiting awards by 2005 Pain & suffering caps state/federal 2006 Product liability litigation- statute of limitations of 15-

18 years Exempt wholesalers/retailers who don’t alter products Punitive cap at 200% of actual

Federalize class-actions over $2 million Federal preemption of auto insurance litigation to

include no fault coverage for pain and suffering


Tort Reform- Trend or Cycle?

If cycle make low priority If trend bar leadership must actively decide

Effect on public Effect on civil justice Effect on legal profession

Strategic Plan to Protect public Protect civil justice system Make appropriate changes


Trend or Cycle


2. Lawyer/Bar leadership relevance


2. Declining Image of Bar Associations from ABA to State and Local-Trend or Cycle? What is greatest problem facing the bar and

its members today, ignorance or apathy?


California... Here We Come???

“The Bar has drifted, and become lost. It is now part magazine publisher, part real estate investor, part travel agent, part critic, commingling its responsibilities and revenues in a manner which creates an almost constant appearance of impropriety.”

Governor Pete Wilson


California Bar Funding Vetoed

Bloated Arrogant Oblivious Unresponsive

Lawyers Weekly USA June 15, 1998


UPL- A Dog That Won’t Hunt

Gemini Ventures of Tampa Inc. v. Hamilton Engineering 26 Fla L. Weekly 927 (2nd DCA April 2001).

“We, as part of the legal profession, should be ever vigilant to protect the public from those who seek to provide legal services without the requisite training and knowledge. However…


we must also recognize that there are people with experience and expertise capable of providing valuable service to persons involved in legal proceedings without crossing the line between legitimate consulting and the unauthorized practice of law. We do a disservice to the public if we prevent access to these services.”


UPL Problems

What is PL? No harm no foul? Protect public or profession? Protecting anybody? Limiting competition from nonlawyers?


ABA Task Force on the Model Definition of the Practice of Law

Presumed law practice when Giving advice or counsel regarding legal rights and

responsibilities Selecting, drafting, or completing legal documents

that affect legal rights of person Representing person before adjudicative body,

including but not limited to, preparing of documents or conducting discovery, or

Negotiating legal rights or responsibilities on behalf of a person


Happy Days Are Here Again!!??

Justice Department and FTC Proposed definition would reduce competition

and force consumers to pay higher prices for a smaller range of services

Prohibit lay service providers from closing real estate loans

Prohibit accountants, investment bankers and insurance adjusters from advising clients about various laws.


Hewin Pate Assistant AG for Antitrust “Those who would not pay for a lawyer would be

forced to do so, and traditionally, lawyers charge more than lay providers for such services. Without competition from nonlawyers, lawyers’ fees are likely to increase.”

The proposed definition could prohibit Web sites and software makers from helping consumers draft their own documents.St. Petersburg Times 12/25/02


Mary Ryan, ABA Committee on Delivery of Legal Services

“A lawyer is best defined as someone who provides the best services in a free market, not the only services in a protected market.”


Utah Definition

Appearing as an advocate in any criminal proceeding or before any court of record in this state in a representative capacity on behalf of another person.

Can’t claim to be a lawyer if you are not by using JD, Esq, attorney, attorney-at-law


Declining role of Bar and lawyers in general- Trend or Cycle? Should bar leaders be concerned with New

Hampshire survey? Could the California experience happen in

other states? Is there a relevance crisis in our civil justice

system and maybe in the profession? Will generations X and Y use lawyers? Is pro se movement based on cost or

perceived value of services?


What is bar leader responsibility if trends? Professional Reform Initiative Future studies on a continuous basis in the bar

organization along with long range planning Make profession aware of change Teach strategic architecture and core competencies

for relevant 21st century services along with traditional CLE and practice management.

Think era for change rather than year as president Make Executive Committee part of LRP and Futurist

M PJ MDP AB P

What Does It Mean For Your Practice?

SA


Battle Lines – London Times 7-29-03

Law Society looking extinction in the face Government wants to strip bar of self

regulatory powers Client complaints up 50% Banks and building societies to handle

probate Government wants one-stop shops



How Much of Your Day Will Be Spent on Nonlegal Services?

Services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, that are not prohibited as UPL when provided by a nonlawyer.

All nonlegal services are fair game for any provider including out of state lawyers


Trend or Cycle



3. MJP


3. Multijurisdictional Practice

Florida Rule 4-5.5(a) UPL Lawyer shall not practice in jurisdiction where

doing so violates the regulation of the legal profession in that jurisdiction

5.5(b) assist another in UPL Birbrower et. al v. Superior

Court of Santa Clara County, 949 P.2d 1 (Cal 1998)


MJP Issues

Protection of public and clients- Home state/Host state Or is the rule protectionist for host state lawyers?

Host state interests Competence- Model Rule 1.1- measure by

Bar exam? Accredited law school graduate? CLE requirements?

Consensus of ABA Futures Committee-no borders in 10 years


Borderless World

Regional/National reciprocity 26 states now

GATS Treaty Driver’s license approach in 5-10

years


MJP- Trend or Cycle

If trend several questions Role of State and Local Bars

Relevant to member needs? Disciplinary only Section and committee relevance Can we reinvent state and local bars to new

powerful positive roles Will bar organization become a trade

association? Opportunity for ABA Will uniform laws become uniform?


Trend or Cycle



3. MJP

4. Technology changing the practice


Law Office of the Future

A computer + a dog + a lawyer. The computer will practice law. The dog is there to keep the lawyer away

from the computer. The lawyer is there to feed the dog.

Dr. Peter Bishop, Associate professor of Human Sciences

University of Houston-Clear Lake


The Big Question

Will the Legal Profession Reinvent Itself In Order to Provide Highly Valued Twenty-First Century Services to Twenty-First Century Clients?


Trend or Cycle


2. Lawyer/Member/Bar leadership relevance

3. MJP

4. Technology changing the practice


4. Technology Disintermediation

Internet Available to Everyone Wills, Tax Return

Prep On-line Like Printing Press to

Church/Temple Literacy Brings New

Relationships


The Future of Law: Facing the Challenges of Information Technology

Legal Profession Will Change Beyond Recognition

Three Types of Legal Service Traditional Commoditized Latent

Richard Susskind

TraditionalCommodity

Latent


Susskind’s Key Questions

Likely developments in IT over next 10 years

Possibilities for law practice in light of IT changes

Future for lawyers and what part is the world wide web likely to play


Transforming the Law; Essays on Technology, Justice and the Legal Marketplace- Richard Susskind 2000

Introduces the “Susskind Grid” First work tying together technology use and

strategic future planning for lawyers

External

KnowledgeTechnology

Internal

Information

Figure 1.1 The Grid

Richard Susskind 2000C

External

KnowledgeTechnology

Internal

Information

Figure 1.2The Quadrants

externaltechnology links

internal useof technology

internal managementof knowledge

provision of access to knowledge

C Richard Susskind 2000

Client

KnowledgeTechnology

Internal

Information

Figure 1.4Examples of systems

document managementpractice management

human resource managementmarketing databases

hardwarenetworks

operating systems

online financial reporting

status reportingdeal-rooms

document archiveselectronic mail

know-how databasestemplate librariesprecedent librariesIntranet services

2nd generation web sitesvirtual lawyers

online legal guidance systems

expert systems


Client

KnowledgeTechnology

Internal

Information

Figure 1.5Business impact

keeping basic systems runningrisk management

providing robust infrastructure

new, improved ways of delivering traditional service

efficiencyproductivity

leveraging knowledge

new service opportunitiesnew business models

turning knowledge into value


Selection ServiceRecognition

Figure 2.1 - Today’s Client Service Chain

blatanttrigger

selection of lawyer

consultativeadvice


Selection ServiceRecognition

Figure 2.5 - Tomorrow’s Client Service Chain

blatanttrigger

selection of source of

guidance

unbundledservices

proactiveservice

selection of online service

selection of adviser

onlineservice

consultativeadvice



Technology Disintermediation- Trend or Cycle? What are implications if Susskind is correct?

Traditional- large firm, large client only Commodity- better, faster, cheaper Latent- may be no direct client contact

Upper right quadrant of Susskind grid Will bar lead the way to teach members new

service delivery methodologies? Beyond unbundling?


Leadership or Parens Patriae- The Bar's Critical Choice


Ethical code presumes a paternalistic attorney-client relationship


Bar leaders paternalistic to members

Do I have a constituency to lead? What is my job vis a vis profession's values?

Keeper of traditional values? Make sure bar members are following the rules. Preserve the past

Reflect the changing values in changing times?


Lawyer's traditional paternalistic relationship to clients

Producer-controlled relationship I am the learned one and you should listen to

me.. Drives relationships

Advertising police MDP issues


Has the move from a producer-driven economy to a consumer-driven economy changed the attorney-client relationship?


Less than two years ago, Major Insurance Company CEO said, “Insurance is too complex. I think people will

always need agents.” “What Planet was that guy living on?” Gary

Hamel


Who Is Responsible for Changing Our Profession?

The Bar Leadership? Section Leadership? Each of us individually?


Why Do Great Enterprises Fail?

Inability to Escape the PastInability to Create the Future

Hamel and Prahalad, Competing for the Future


Thinking About the Future- Stuart Forsyth

No one can truly predict the future But we can:

1. See different possibilities (alternative futures)

2. Pick the future we prefer

3. Take actions designed to foster our preferred future

4. Seek to maximize our viability in the event of another future (not the one we prefer)


Leading the Profession to a Preferred Future If we don’t drive the vehicle to our future we

will end up wherever we are taken There are at least 10 accepted methodologies

to do future planning Doing nothing will produce the worst results

Institutionalize future planning We can create positives or default to

negatives


Dakota tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount.



In law firms we often try other strategies with dead horses, including the following:



Changing riders



Saying things like . . .

This is the way we always have

ridden this horse!



Dead Horse?

What dead horse?What dead horse?



Appointing a committee to study the horse



Arranging to visit other firms to see how they ride dead horses



Increasing the standards to ride dead horses



Declare the horse is "better, faster and cheaper" dead



Harnessing several dead horses together for increased speed





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