Victor Borge likened lawyers to clarinets—both have cases, mouthpieces, and need a constant supply of hot air to function. There are just over 1.3 million licensed lawyers in the U.S. according to the American Bar Association 2015 National Lawyer Population Survey. That’s a lot of hot air and mouthpieces. Paradoxically, the legal profession lacks a strong, unified voice desperately needed at this time of profound and accelerated change. That powerful legal voice must address big challenges to the rule of law including preservation of the Bill of Rights, access to justice, equal justice, global migration, human trafficking, and a growing erosion of confidence in democratic institutions.
Why Does Law Lack A Forceful Voice?
Law has many voices. Most speak for discrete segments of the legal population, focusing on issues that most affect their constituents. The Association of Corporate Counsel (ACC) is the de facto voice of the global in-house legal community. The American Association for Justice (AAJ; formerly American Trial Lawyers Association) is a nonprofit advocacy and lobbying organization that serves as the voice of plaintiff's lawyers. These and other legal groups advance important objectives, but they tend not to focus on broader issues such as preservation of the rule of law.
The legal Academy lacks a powerful voice on big issues. Legal service providers and consumers, likewise, tend not to focus on broader issues, though the latter dictates by whom and how legal services are delivered. Public interest groups often address broader challenges but are limited by scarce resources and professional apathy. Thought leadership in the legal industry comes from individuals, not powerful institutions, and this reduces its impact.
The American Bar Association (ABA) is the putative voice of the US legal profession. It is the nation’s largest voluntary association of lawyers and law students, numbering approximately 410,000 members. Its mission statement commits to a broad focus: ‘To serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.’ The ABA’s principal stated goals and objectives are to advance and promote: (1) members; (2) the profession; (3) diversity and the elimination of bias; and (4) the rule of law. Having arrogated for itself the role of ‘national representative of the legal profession,’ and pronounced broad, lofty goals, it’s fair to ask whether the ABA is achieving them. Simple answer: no.
What’s Wrong With The ABA?
Let’s start with the ABA’s mission statement to ‘serve equally our members, our profession and the public….’ (emphasis added). The ABA serves its members, because they are its lifeline and can vote with their feet if their interests are not met. What about the ABA’s service to the profession? It enunciates three principal objectives to advance the profession’s interests: legal education, professional competence/ethics, and pro bono/public service. Legal education has failed to contain cost, address massive student debt, modernize curricula, or provide graduates with new skills (IT, process, basic business knowledge) that make them 'practice ready' upon entry into a rapidly changing marketplace. The ABA has also failed to promote ‘competence’ because today’s lawyers must not only have legal expertise but also possess an understanding of how technology and process impact legal delivery.
The ABA’s record on public service is also less than stellar. The inability of the vast majority of Americans to afford counsel when they need it—often referred to as ‘the access to justice crisis’—is the scourge of the profession and a threat to the rule of law. The situation is all the more vexing because of the glut of lawyers and the availability of technology to provide affordable legal access via new delivery models. The ABA has consistently resisted the efforts of LegalZoom, Rocket Lawyer, and other new model providers to address the access to justice crisis. The ABA's modus operandi is to protect member interest—and preserve the status quo-- at the expense of the profession and the public.
Even when the ABA launches promising initiatives, it cannot seem to rid itself of a proclivity to ‘round up the usual suspects’ to advance them. For example, in 2014 the ABA appointed The Commission on the Future of Legal Services to examine why meaningful access to legal services remains out of reach to the vast majority of Americans (access to justice). The Commission was directed to provide recommendations, including the use of technology, to ensure that both lower and middle income people would have access to legal services. That’s the good news. The bad news is that not one of the 28 commission members had founded, managed or participated in legal technology companies or startups focused on the delivery of legal services. Complex challenges require thoughtful analysis that includes different skill sets and perspectives.
If the ABA is to become an effective voice, it must speak for a legal industry that now includes lawyers, technologists, entrepreneurs, and process experts. It will take more than lawyers alone to solve the access to justice crisis as well as other big challenges. Solutions will require the collaboration of lawyers and other experts in the delivery of legal services. The ABA must be far more inclusive in its approach to problem solving and recognize that technology can provide scalable solutions that will help society--and lawyers, too. Imagine if 100 million new clients (who could pay for legal service but not at current prices) were to enter the marketplace--that would benefit lawyers, clients, and society. The ABA also cites elimination of bias and enhancement of diversity as key goals. The organization has failed to assert itself as a strong voice at a time when racial, ethnic, and religious hate crimes are on the rise and fractious divides have become part of our social fabric. The ABA’s diversity efforts have contributed to a small increase in the number of minority law students at a time when jobs are shrinking, tuitions are soaring, and graduates are not ‘practice ready’ upon entry into the marketplace. Is this promoting diversity or checking a box? The ABA has also failed to advance pay and advancement parity for women. Nor has it assumed a leadership role the erosion of confidence in the criminal justice system or promoting more efficient dispute resolution of civil matters.
The final goal of the ABA is to advance the rule of law. This is vital not only to the ABA but also to other legal associations around the world. The rule of law is under attack from multiple quarters, and lawyers—guardians of the rule of law—must defend it with a strong, unified voice. The ABA should take a ‘first chair’ role in the defending the rule of law. It must cast aside lawyer protectionism, an insular mindset focused on member attorneys, and act as a voice for the profession and the public. The ABA must provide resources, support, and a strong defense for institutions that sustain the rule of law. If the ABA demurs, its role will be further marginalized and the damage to the legal profession and society will be severe.
The legal profession is in dire need of a strong voice to address the urgent, difficult threats to the rule of law. Lawyers-- and those that work with them to deliver legal services-- must speak and act with the might of their collective number, knowledge, influence, and resources. The ABA has an opportunity to regain credibility inside and outside the profession by serving as law’s voice in the United States. That will require it to rise above lawyer protectionism and pandering to membership interests and to act as a strong, inclusive, and broad voice for a far broader constituency. The ABA must embrace technology, process, and other legal service actors and tools in its defense of the rule of law. It will take more than lawyers to wage a successful fight. Let’s hope the ABA recognizes the stakes and is up to the challenge.
This article is also published by Forbes, on Marks' Forbes contributors page: http://www.forbes.com/sites/markcohen1/#34fb71df688a