There are 33 mandatory state bar associations and 20 voluntary state bars. Each of them is failing their members. They are sometimes slow to react, cede authority to outside groups, and fail to advocate for their members.
This post was edited on January 27, 2014, at the request of the author, who apparently became the target of (some) butthurt bar association officials’ ire soon after this post was published. I really don’t want the author to lose his job because some bar association officials would rather sulk than take his criticisms seriously, so I changed the image I originally chose for the post, removed his byline, and made the edits he requested. It should go without saying that he had nothing to do with this note, and would probably rather I did not include it. —Ed.
Slow to React
Bar associations cannot seem to adapt to changing times. Advances in technology and communications seem to be largely ignored by bar associations that are apparently hoping that the Internet is a passing fad. (Tip: it’s not a fad.)
For example, cloud computing has been in wide use by the public since at least 2006, when Amazon released its Web Services platform. During the same time, mobile computing has become the fastest-growing technology. Mobile phones have outpaced computer sales since 2011 and tablets are set to outpace computer sales by 2015. Smartphones are now used by 88% of lawyers responding to the 2013 ABA Legal Technology Survey Report. Whole ecosystems of communications, storage, and online services have become necessary tools for families, businesses, and law firms.
What have the bar associations done in guiding their members in using this new technology? A scant 15 states have drafted formal ethics opinions on cloud computing. (The American Bar Association web site only lists 14, missing Florida’s recent opinion. It seems the ABA can be a little slow, too.) (Edit: As some commenters have mentioned, 18 states now have ethics opinions on cloud computing.)
There are a few ethical opinions on using cellular phones (see Arizona and Delaware (pdf), for example). All were written before Apple released its first iPhone in 2007. The opinions focus on lawyers speaking with their clients using wireless signals. (At least three ethics opinions banned cellphones for communicating with clients.1 None of these opinions contemplate the storage or accessing of large volumes of data with a smartphone. Some even ruled that using a mobile phone is unethical. Instead, in order to figure out what is ethical, lawyers must reason by analogy. In the event of a complaint, lawyers must hope their bar association’s ethics board will decide that normal smartphone usage is covered by opinions that discussed using email on PCs in the 1990s.
Bar associations seem to be moving — slowly — in the right direction on technology. For example, I’ve participated in RFPs from state bar associations evaluating the security and longevity of my company. These are becoming more common; bar associations are demonstrating greater understanding of business and technical challenges.
Developing these standards is admittedly time-consuming, often requiring the input of bar employees, expert members donating time, and the approval of courts or regulatory authorities. Once complete, ethics opinions remain in force for decades, as changing or repealing them requires the same effort. Because of this, one bar official confided that the best ethics opinions are written prescriptively. A lawyer would be hard-pressed to comply with decades-old ethics opinion that required the use of Word Star for typing documents, for example. That software had a dominant market share in the 1980s, but has not been available since the early 1990s. To avoid such dilemmas, opinions do not recommend a specific tool, just standards they believe will protect both lawyers and their clients.
Bar associations not only struggle to keep up with modern times, they struggle to maintain their authority to protect the public, the courts, and their profession from encroachment by outside parties. My biggest area of concern has been in the education of young lawyers.
In the early 1920’s, the ABA began to accredit law schools independently. In 1952, the United States Department of Education certified the Council and Accreditation Committee of the ABA Section of Legal Education as the nationally-recognized accreditation authority for law schools. Today, most states require that applicants be graduates of ABA-accredited law schools before they can take the state’s bar examination. To be ABA-accredited, schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools.
What’s missing from this setup is any oversight by state bar associations. They simply assume that the standards established by the ABA are sufficient for their states’ needs. Law schools have long been accused of not preparing students to actually practice law, but bar associations could set different (higher) education standards than the minimums created by the ABA. Much like Texas and California control the textbook market, a few motivated state bar associations could impose requirements that every school would soon follow.
Giving credit where it is due, this is already starting to happen. In New York, applicants for admission to the bar in 2015 will be required to perform 50 hours of qualifying pro bono work. New York is the first state to impose such a requirement. New York law schools like Columbia are already requiring students to obtain qualifying pro bono hours. Law schools outside of New York, like the University of Chicago and Georgetown, are also working to prepare their students for this requirement.
Missed Opportunities to Advocate for Members
This is bar associations’ biggest challenge.
The legal profession is being assaulted by a variety of internal and external forces. Work traditionally done by law firms is being taken by online services, outsourcing agencies, and software.
Why are these services gaining in popularity? In part, clients are using alternative services because they cannot obtain quick, effective relief in any other way. Courts have been cut financially to the bone, and this is impacting the public’s right to speedy resolutions. Bar associations have not been doing enough to lobby for adequate legal funding.
Clients are also flocking to alternative services because they are uninformed about the benefits of hiring lawyers. Lawyers have voluntarily agreed to duties and responsibilities undertaken on behalf of their clients. These duties include diligence, confidentiality, and fiduciary obligations. And there are consequences for violating these duties.
If you screw up, your client can sue you under well-defined and well-litigated legal standards. This is a protection scheme for clients; one that they cannot get from alternative services. In business marketplaces, this protection scheme is a type of business-differentiator. Lawyers may offer the same products as these new competitors, but we also offer protections they do not.
What have bar associations done to communicate these protections to the public?
I have seen no advertising campaigns, no editorials in the paper, no clever online campaigns extolling the virtues of choosing a lawyer over an app. This is a simple case to make, and bar associations are best-positioned to make it.
Fixing this Mess
Bar associations need to stop thinking they are inviolate entities. Bar associations have unique power to shape the changing legal landscape. They can shape the future for lawyers, courts, and the public. There are two possibilities for increasing the value bar associations offer. The first is that lawyers make up these organizations. Bar associations can organize their members to fight for their interests. Bar associations can respond quickly to the many issues making the practice of law difficult.
One example of how this might looks is the recent walkout by members of the UK’s Criminal Bar Association. When the government of the UK proposed to cut funding for legal aid (meaning the UK’s version of public defenders) by 30%, barristers and solicitors staged a half-day walkout. And they were right to do it. Fees for criminal cases were already cut by 40% in 1997. Could you survive a 70% paycut?
Various bar associations, like the Criminal Law Solicitors Association, Criminal Bar Association, London Criminal Courts Solicitors Association and Legal Aid Practitioners’ Group all coordinated their actions for this walkout.
This is how an active, involve body responds when a bar association engages their members.
The other option for reforming bar associations is to reorganize them to overcome institutional obstacles. The UK reviewed the lack of competition in legal service providers in 2001. The UK found that allowing bar associations to control legal services was inefficient. “The current framework is out-dated, inflexible, over-complex and insufficiently accountable or transparent ….”
In July 2003, Sir David Clementi was appointed to carry out an independent review of the regulatory framework for legal services in England and Wales. The resulting Clementi Report of 2004 recommended stripping the existing bar associations of their regulatory powers.
In their place, separate organizations were to be created. These organizations have the separate focuses of regulatory and representative functions. For example, solicitors in the UK now have the Law Society and the Solicitors Regulation Authority. The Law Society represents solicitors in England and Wales, lobbying the profession’s regulators, government and others. The Solicitors Regulation Authority set the standards for qualifying as a solicitor, monitor law schools, provide guidance on ethical issues, laws and regulations that affect solicitors’ work.
Fighting for the interests of their members, focusing on strong education and standards, these organizations seem to be focused on the very things lawyers need.
So the choices before bar associations are simple: fight for their members or be replaced by groups that will.
Several commenters both on Lawyerist, and elsewhere, made the point that this article applied criticism to bar associations with too broad a brush.
This is true, and I apologize.
Bar associations are not a single type of entity, but come in many different constructions. Some are created by statute; some are created by their Court, and all of them possess hard-working employees and members volunteering their time. Depending on their unique structure, they may not have the authority to issue ethical opinions or impose educational standards. Often, the speed with which they can move depends on outside actors, like courts and legislatures.
I also appreciated Ken Shigley’s informative comment on how monumental efforts by bar association employees and volunteers are often stymied by outside forces. I believe the structural changes that the UK bar associations are undergoing are meant to give these associations means around those obstacles.
Finally, my goal with this article was discuss how to create the best experience for lawyers. Mainely Law stated it best in the comments below. Mainely Law likes the Maine Bar because, “[the Bar] makes it far easier for us to practice law, and that is what I need most.”
I think this is goal shared by myself, other lawyers, and bar associations – a desire to make it easier to practice law.
And if every lawyer can say this about their bar, what would be left to criticize?
Featured image: “Sleeping tiger, isolated on white background” from Shutterstock.
Massachusetts Advisory Opinion 94-5; New York City Advisory Opinion No. 1994-11; and New Hampshire Advisory Opinion No. 1991-92/6. ↩