Bar News - November 23, 2007
Talking with the Chief Justice, Part 2: Where Is the Legal Profession Heading?
The following is part 2 of an interview conducted in person and via e-mail with Chief Justice Broderick late last month. See the Nov. 9 issue of Bar News for Part 1.
Bar News: How has the role of lawyers been changing in the 21st century?
I have been reading an interesting book entitled The Lost Lawyer by Anthony Kronman, the Dean of Yale Law School. He makes the point that the figure of the lawyer-statesman may no longer represent a professional ideal in the practice of law and has lost its power to inspire. I think, in a general sense, he may be right.
In the last 30 years the private practice of law has given too much ground to commercialism. Specialization has made practical wisdom more difficult to acquire. Billable hours too often appear to be an end in themselves. Law firm cultures have changed. Many large law firms are growing larger and increasingly partners or officers are spread out regionally, nationally or sometimes globally so that all that holds them together is profitability. At the same time, many small firms and solo practitioners are working longer hours for the same or less income.
The lawyer’s expectation of making a good living has in some large law firms given way to a new culture of making as much money as possible. Many lawyers are becoming transactional specialists who, of necessity, are developing narrow and temporary relationships with clients. Lawyer-client relationships are changing and lawyer services today are often received by clients with very different expectations than was true two decades ago.
Mergers and spin-offs are growing more common for lawyers and law firms. The common interests and values that served as the foundation for many law firms are no longer as critical or as meaningful. For many, legal services are becoming too expensive and, at the same time the practice of law is becoming more costly, in part due to the accelerating need to keep up with technology. The wave of change is building and the news cannot be good for everyone.
Although women are rightfully taking their place as leaders in the profession, I remain concerned that many women lawyers, especially mothers with young children, are often not accommodated to ensure their place in line on the way to partnership or officer status by virtue of their chosen responsibilities in the family. The full recognition and acceptance of professional women with children in the law firm culture is not yet where it needs to be.
The profession is also confronting unprecedented forces driving technological change. Some of that change will no doubt threaten some lawyers by making available and “making simple” certain transactions which up to now have, by necessity, required a lawyer’s assistance. Other professions and disciplines are reaching out for work that some lawyers now do but that does not require a lawyer. That competition will continue. While many lawyers and law firms are adjusting to a changing landscape, some are not. In my view lawyers embrace the status quo at their peril.
Bar News: Are these national trends having less of an impact in New Hampshire?
I think the law firms in our state have been somewhat insulated from the negative cultural changes the profession is experiencing in large states or big cities, but the profession here is changing, too. The advent of change is the reason our Supreme Court created a “Commission on the Status of the Legal Profession” a few years ago. Whatever change happens, lawyers remain integral to the development of the law and to the capacity of the state court system to administer justice fairly. Both the profession and the courts will, however, have to adapt to remain as relevant in this new century as they were in the last. Thoughtful change is needed. Introspection is difficult but essential.
Bar News: What do you think lawyers can do to counteract some of the negative trends that are occurring?
Let me focus on just one thing. I would like lawyers to examine their almost exclusive reliance upon the hourly rate. I believe lawyers should increasingly seek opportunities for value billing. They should trust their talent more than their time. The hourly rate is suspect for some and creates a perceived disincentive to the early resolution of cases. The hourly rate also is helping to drive younger professionals either away from long-term commitment to large firm practice or is causing increased disillusionment with the practice of law. Changing the approach to billing is not without risk but I am a believer that it would both enhance professionalism and improve public trust and confidence in the legal profession.
Bar News: The new ethics rules have a new pro bono publico rule 6.1. Can you describe the motivation for it, and more broadly, how do you assess the response of bar members in meeting the needs of low-income people? Ultimately, how much of the burden can/should the lawyers shoulder? Isn’t this a societal responsibility?
It most certainly is a societal responsibility. In the recent past our Legislature has responded favorably, however, to increased funding for legal assistance. In the most recent budget, New Hampshire Legal Assistance was given an additional $470,000 to open a Concord office. With this new money NHLA will receive $1.44 million for each year of the biennium from the state. When I spoke to a joint session of the Legislature earlier this year, I respectfully requested that they help the bar and the courts tackle the pro se challenge, which is swamping the courts. I think the Legislature has stepped up in a significant way and understands the critical need to ensure access to justice.
The New Hampshire Bar has been in the top tier of all bars in the United States in donating time to those who cannot afford a lawyer. I’m very cognizant of that proud history. Earlier this year I made personal visits to eighteen randomly selected law firms to request even more help and to solicit ideas. I also met with the managing partners or directors of the 30 largest firms in our state. Many lawyers and law firms have stepped up. McLane and Wiggin continue their leadership and Devine, Millimet has created a five-lawyer well-trained SWAT team to handle landlord and tenant cases that NHLA is unable to handle. The New Hampshire Chapter of the American College of Trial Lawyers, under the leadership of Jim Wheat, has provided valuable training to NHLA lawyers and has agreed to partner with them on appropriate cases. I am grateful for their valued assistance. On the Seacoast the lawyers at the Boynton law firm have responded generously to my plea for increased involvement by the bar. I appreciate their resolve to help.
Many other law firms and lawyers have kindly responded by doing more. Unfortunately, there remain many lawyers who donate little or no time. I fully appreciate how competitive and costly the practice of law has become but lawyers have an ethical obligation to help the unrepresented. We have tried to address the realities of the marketplace by adopting ethical rules permitting the unbundled delivery of legal services. Some lawyers and clients are now taking advantage of that change. In time, I am hopeful that more will.
In an effort to “require” that all lawyers share the load, the Supreme Court recently amended Rule 6.1 to “mandate” that all members of the bar contribute 30 hours of pro bono service each year. I am hopeful that the Supreme Court will be able to publicly acknowledge and thank law firms, of whatever size, who meet the aspirational goal. It is also important to find new ways for public sector lawyers to contribute their time as well. I would favor the creation of self-help centers where public sector lawyers, and others, could have meaningful contact with the unrepresented without establishing a lawyer/client relationship.
I continue to believe that a justice system, which is not meaningfully open to all our citizens, is no justice system at all. Indeed, the single biggest challenge facing the state courts across the country is the growing number of self-represented litigants. We need thoughtful change to ensure meaningful access to the courts in an environment quite different than it was when I began the practice of law in 1972. We need to provide options and off ramps to those who want them and to find new ways to add the value lawyers always bring to dispute resolution.
Bar News: What segments of the population do you think are the most vulnerable or ill-served by the current legal system?
The poor, at least some of them, receive free legal assistance. Statistics reflect, however, that only about 20 percent of the legal needs of the poor are addressed with the direct or indirect assistance of a lawyer. Realistically, the poor will always be underserved by the bar and the courts. Increasingly, the middle class and small businesses find that they cannot afford counsel or, at least, cannot afford them as readily. Sadly, many well-to-do clients are opting not to use the public justice system either because of its openness and/or its necessary and unnecessary inefficiencies, which are perceived not to serve their needs. Also, more and more contracts in the private sector call for some form of alternative dispute resolution. Those types of contract provisions are most often upheld when challenged. Increasingly, commercial America is opting out of the public justice system. That trend is not good for the long-term vitality of the state court system. Making legal services more affordable and courts more efficient and responsive is a discussion the bench, the bar, the Legislature and the public needs to have on an ongoing basis.