Opinionistas Outs BigLaw
The Client whose Mouth is Bigger than their Stomach

Lawyers are in many ways Victim of a System which discourages Innovation and Creativity

      Dennis Kennedy for the future of legal services in the UK. You can find the link here.

      It is clear that in the UK, they are moving the legal system in the opposite direction of where the American legal system has been and appears to be headed into the indefinite future. In the UK, they want to change the regulatory framework to promote competition, innovation, in an efficient and effective legal sector. In the United States, there is no emphasis on promoting competition or innovation. From my point of view, the entire system and state regulations are devoted to maintaining the status quo and squashing any innovation.

      In the UK, there is an emphasis on putting a system in place that is "no more restrictive or burdensome than is clearly justified." In the United States, our system has all kinds of restrictions and burdens which are justified on the premise that "that's the way it has always been."

      Dennis wonders what the contrast is between our system and the one in the UK especially in terms of state based regulation. As you can guess, my view is that American lawyers live in fifty separate state systems which clearly emphasize the preservation of the status quo. States enforce ethics rules from the viewpoint of the status quo.  Until we create a legal system which actually encourages diversification, creativity, and innovation, those of us on the fringes of innovation will be pushing against the powers that be. I wonder when and where I will be when someone steps up and challenges my business model as "unethical." I can see the argument now. Because I don't push everything into litigation, I am not aggressively representing the interests of my client. Because I give my clients choices about what issues and arguments they will pursue, and actively encourage them to work within their limited budgets, I am not aggressively representing the clients interests. Because I encourage parties to resolve disputes as opposed to litigate them, I am presented with a conflict of interest of one sort or another. Because I use alternative advertising, and constantly push against the hourly billing system I am unfairly comparing myself to others and therefore am engaging in unethical advertising practices.

      I had a husband and wife come to me the other day and ask me to represent them both in their divorce. I know that in my state there is no ethics ruling directly on point and that there are waiver provisions which would arguably cover this. Of course, I would have to indicate that I am presenting neither of them with legal representation in terms of advocacy. I would only be guiding them through the legal process based on their view that they are in an un-contested divorce and will resolve all of their differences between themselves. But, I know that this raises ethical issues which most attorneys are very uncomfortable with, and I don't know how the Bar Association would approach the matter. More importantly, I am stuck on why it would be bad for me to help marshal a couple that wants an amicable resolution of their divorce through the legal system with adequate waivers and disclosures in place. In that instance, the system is encouraging the parties to fight, rather than allowing them to get to the end zone they both desire.


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