The Trouble with Lawyer Regulation

ABSTRACTThe American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers' efforts to change their own practices and entrepreneurs' efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs society of what could be a positive role of the legal profession in times of change, and it deprives the profession itself of being as robust and successful as it could be.INTRODUCTIONThe history of the legal profession's self-regulation during self-identified crises-such as the present-is not a happy one. The profession has resisted change. When it did institute change, the change was directed not at the existing members of the profession, but at new entrants.1 Mostly, change that has come has been forced by influences of society, culture, economics, and globalization-not by the profession itself. Watergate, communist infiltration, the arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis have blended with dramatic changes in technology, communications, and globalization.2 In each of these instances, the profession held fast to its history and ways long after those ways had become anachronistic.3 The profession seems to repeat the same question in response to every crisis: How can we stay even more "the same" than we already are?In short, the legal profession is ponderous, backward looking, and selfpreserving. The currently functioning American Bar Association's Commission on Ethics 20/20 was established because of the dramatic changes in the economics of law practice, globalization, and technology.4 Yet its mission statement sets the tone for its work: "The principles guiding the Commission's work are protection of the public; preservation of core professional values; and maintenance of a strong, independent and selfregulated profession."5 Protect, preserve, and maintain. This most recent "reform" mission statement is strikingly similar to that of the first bar association's, born in the 1870s of "crisis" and formed to "protect, purify and preserve the profession."6 This Article recommends a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises. My hope is that the legal profession can be more like companies that have thrived because of their innovative tendencies (e.g., Apple, IBM, and Western Union), and less like companies whose stagnancy caused large-scale problems (e.g., Kodak).7Albert Einstein taught us, "You cannot solve a problem from the same consciousness that created it. You must learn to see the world anew."8 The American legal profession tries to solve problems with the same thinking that created the problems. It clings to the past and precedent and seeks only to "protect[] . . . preserv[e] . . . and [maintain]."9 The American legal profession acts as if preserving the status quo will solve all, when in fact it will solve nothing. This backward thinking, the same thinking that preceded each crisis, exacerbates the impact of each crisis. More than anything else, the legal profession would benefit from the thinking patterns of innovative nonlawyers.When change comes to the legal profession, it is brought by forces outside the bar. For example, early twentieth-century immigrants eventually integrated themselves into the bar notwithstanding the bar's efforts to diminish and exclude them.10 Other changes in demographics and culture that led to the entry of women and African Americans into the profession were inevitable, yet were resisted by the profession at various times.11 Communism came and went without being affected by the bar's efforts to stem the tide of its professional infiltration. …