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Thursday Thinkpiece: Julie Macfarlane on How Clients Are Transforming the Practice of Law

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THE NEW LAWYER: HOW CLIENTS ARE TRANSFORMING THE PRACTICE OF LAW, SECOND EDITION

 Julie Macfarlane
© 2017, UBC Press, Vancouver and Toronto, Canada

The following edited excerpts from the revised and updated second edition of my book, The New Lawyer, will I hope give you a good sense of both the core ideas that the book explores and some of the new material that I have integrated since the first edition. The focus of both books is change – change in the legal profession, in the justice system, in the legal services market and in the expectations of clients, both personal and corporate. Like the first edition, the “Newer Lawyer” 2017 (as my friends at UBC Press call it) identifies the ability to resolve cases short of a trial as a foundational skill for litigation lawyers and using the insights of both lawyers and their clients, considers what this means as a practical matter for negotiations, advocacy, lawyer/client relationships, and for the ethics of legal practice. It also integrates new research data on the Access to Justice crisis and the impact of self-represented litigants, and the adaptations and changes this challenge demands in these and other aspects of lawyering practice.

– Julie Macfarlane

PP18-19: Chapter One, Changes in the Legal Profession and the Emergence of the New Lawyer

(A)lthough significant change has taken place in the structural, economic, and procedural character of legal practice, these changes have had far less impact than one might expect on the core practice norms and values or on the ways law students are prepared to enter practice. One can see the impact of a growing focus on corporate clients and the power of the mega-firms in the business orientation of many law school curricula, but this emphasis does not extend to a re-examination of the lawyer’s role, and entrenches a traditional model of client advocacy founded on argument and assertion. There is a growing disconnect between traditional adversarial advocacy and the pressure to participate in early settlement processes – a tension experienced by many litigators and met with anything from outright resistance to demands for an entirely different approach to legal training.

Despite the speed and scope of change, there seems to be only patchy interest in a serious mainstream debate over what these mean for the skills and services lawyers sell to clients. …(T)echnical specialist knowledge is still widely regarded as vastly more important than process experience or resolution expertise. At least at the point of hiring, there seems to be little interest in other skills and qualities, such as empathy, wise counsel, creativity, and conflict resolution. In this largely unaltered world, legal education continues to be functionally efficient: the image of lawyering promoted by the law schools fits with the qualities emphasized by many law firms at the entry level.

At the other end of the legal services market, as the gap between those who are eligible for public legal assistance and those who can afford lawyers widens,[1] it may be that lawyers are losing the battle for public regard. Public skepticism about the cost of legal services is now widespread. …(A) consistent critique is emerging among those who are now self-representing of how they were served by the lawyers whom they had previously retained, identifying in particular poor listening skills and insufficient consultation and transparency over fees and costs.[2] Both developments suggest a widening gap between what the public wants and can afford and what lawyers continue to offer.[3] When they retain a lawyer, clients and potential consumers of legal services have limited information about alternative models of lawyering, such as work based on a limited-scope retainer, legal “coaching,” or fixed-fee services. They just know that they want a speedy and affordable solution. A very large number of middle-income litigants are self-representing because they feel that legal representation is too expensive, represents poor value for money, and does not give them enough personal agency.

…..

P20: The Evolution of the New Lawyer

I first argued in the 2008 edition of this book that what we were seeing was the evolution of a new form of lawyering, one that would be more effective and realistic in an evolving disputing landscape in which trials are a rarity. Eight years on, this continues to be my view. However, another, critical aspect of the evolution of the lawyer’s role has become increasingly important since the first edition of The New Lawyer: how the profession responds to an increasingly empowered client, both corporate and personal.

These clients can access knowledge through the Internet, carry out some tasks associated with their matter themselves, and are looking to their professional advisers for more than technical assistance or courtroom advocacy. The empowered twenty-first-century legal consumer directly challenges the ingrained paternalism of the profession. Many clients no longer want to be told that lawyers know better what is good for them; they want to be talked to as peers. Many are no longer content with “trust me, I’ll take care of it”; they want to know exactly what they are paying for, and why. This decline in deference is a phenomenon not limited to lawyers – it is taking place across all aspects of professional services – but it may be an especially bitter pill for the legal profession to swallow. Status – as an expert, as a person of social stature in their community, and as an earner – is a core element in the identity of many entering the legal profession. The historical assumption that lawyers must “take care of” their clients needs to be replaced with an open, working partnership in which there is full transparency and shared decision making.

…….

P143, PP146-149: Chapter 6, The Lawyer/Client Relationship

Across all sectors of legal practice, clients are signalling their changing expectations for shared responsibility and participation in legal problem solving. Participation and empowerment, rather than the unquestioning acceptance of professional advice on what to do and how to do it, are increasingly seen as important aspects of a democratic, participatory culture, in which “more-for-less”[4] and value for money are core consumer values. This calls for the development of a new model of a working partnership between lawyer and client. Four areas of lawyer/client relations both highlight these changes and illustrate some of the philosophical and practical terms of a new relationship. These are: (1) how lawyers and clients plan and make decisions; (2) how lawyers respond to client demands for changing financial structures and greater transparency in legal costs; (3) how client participation in settlement processes impacts the dynamics of such processes; and (4) the personal or affective[5] dimensions of a new working partnership between lawyer and client.

…….

(This) can be a difficult transition for both lawyers and clients habituated to the “old” approach. From law school on, lawyers are trained to take responsibility for directing their clients towards what they believe is best for them – in this way, the lawyer-in-charge belief is first planted and encouraged. Engaging in an authentic and open-ended dialogue, both at the planning stage and throughout the implementation of a dispute resolution strategy, runs contrary to many of these instincts. But finding the balance between continuing to offer expertise and respecting the autonomy of clients in setting their goals is key to successful lawyer/client relationships for the New Lawyer. It is what modern-day clients expect.

Financial Choices and Alternatives

An increasingly prominent aspect of changing client expectations is access to more affordable and collaborative services, for example, the use of limited-scope retainers,[6] fixed-fee services, and legal coaching.[7] A renegotiated relationship over strategy and decision making is part of this demand. Growing numbers of self-represented litigants are seeking legal assistance via limited-scope retainers to ensure that they keep control over costs, while carrying out themselves many of the tasks traditionally undertaken by a lawyer. The parameters of the retainer may be the subject of bargaining between lawyer and client. Limited-scope retainer agreements commonly list a number of possible legal services that lawyer and client can tick off or not.[8] The traditional assumptions regarding an open-ended retainer agreement are challenged by clients seeking value for money and questioning whether they need or can afford a full-representation model.

Many lawyers express understandable anxiety about an arrangement where they do not have a complete picture of the case or control over next steps, and are instead only consulted from time to time – for example, to review documentation or to prepare the (primarily) self-represented litigant for a particular event. They worry that clients may not fully understand the limits of their responsibilities, and that they may not be fulfilling their fiduciary duties.[9] Lawyers who are starting to offer limited-scope services to the self-represented sometimes express anxiety about their loss of control and professional liability issues,[10] while others welcome the shifting of responsibility to their sometime client.[11] Some clients who choose the unbundled option begin with high hopes of working autonomously without the assistance of counsel, but as they become increasingly overwhelmed by the complexity of the legal process, they may choose to hand over more and more work to their lawyer.[12]

The New Lawyer, especially one working in personal legal services, has little choice but to embrace these challenges. They flow from the shifting nexus of power and control in lawyer/client relationships, and are a response to changing consumer demands. While many practitioners will continue to work on a largely or wholly retainer/billable-hours arrangement, more and more lawyers will be asked by their clients to consider either coaching, unbundled services, fixed-fee services, or a combination of these approaches. Law societies across Canada permit limited-scope retainers, and the legal insurers indemnify lawyers offering such services.[13] Despite widespread and often fearful speculation on this point, there is no evidence that there is a higher rate of complaints (or lawsuits) when lawyers offer limited-scope retainers. In the United States, insurers have not reported higher levels of malpractice claims arising from unbundling.[14] Similarly, there is no reported rise in complaints to professional bodies as a result of limited-scope retainers.[15] There are no Canadian data because no provincial law society yet tracks this information, although in an informal file “audit,” two provincial law societies reported that they had no complaints at all from clients about limited-scope retainers.[16]

Personal services clients want lawyers to offer limited-scope services because this is more affordable and because it enables clients to feel that they remain in control of both the overall direction of the file and its associated costs. In a sample of 253 self-represented litigants, virtually all described searching for some type of limited legal assistance. Only thirteen found a lawyer wiling to “unbundle,” usually their former counsel.[17] Respondents described seeking assistance with completing forms reviewing completed forms and other documents, writing a letter to the other side, answering questions of law, preparing for a hearing, and representation in court for one hearing only. There was widespread public bafflement at this – why would a lawyer not accept their money for a few hours of assistance? While the reasons may be clearer to lawyers, the public does not understand this inflexibility: “A mechanic will tell you how long and about how much it will cost – a lawyer won’t do that.”[18] The legal profession is on notice to become more open to offering different types of financial arrangements, or at minimum, adequately explaining to clients why they do not.

A similar groundswell of dissatisfaction exists in relation to the lack of transparency in a traditional retainer/billable-hours model. The stories of shocking bills appearing after relatively short periods of time are legend.

Martha [not her real name] was shocked to receive court papers seeking joint custody of her young daughter, from the putative father with whom she had had a short-term relationship. “Once those papers were served, it was like a runaway train. There was no opportunity for us to talk reason.” Her ex was a lawyer and knew what to do and had the money to do it. He wouldn’t mediate.

Alarmed, Martha retained a lawyer right away and paid her a $5,000 retainer. Six weeks after the retainer agreement was signed, Martha received a bill for a further $24,000 on top of the retainer. By this time she had had one court date. She cashed in her RRSPs to pay this bill.

“It seemed to be the only option because it was so close to the beginning of the process – and I desperately needed a lawyer to represent me. She told me ‘if you represent yourself you will be eaten alive.’ But I was scared about what more it was going to cost.”

Shortly after this, Martha decided she would have to represent herself because she had no funds left to pay for legal representation.[19]

….

The New Lawyer should anticipate that clients will expect transparency about likely costs and should receive regular updates. The assumption that clients should delegate to their lawyer the stewardship of their funds is no longer acceptable for many clients who, while they may come to trust their lawyer, still want to know what their choices are, and exactly how their money is being spent.

——-

PP239-240: Epilogue

In the last five years, I have seen evidence of generational change that has been far more noticeable than earlier in my research career. Younger lawyers, and especially those who are trying to figure out how to pay off their tuition debt, are more naturally open to change and do not cling to the core beliefs or to assumptions about how services should be structured in the same way as their elders. They are accustomed to a world in which information is at everyone’s fingertips, just a smartphone away. They belong to a generation that accepts the need for adjustment of market services to meet changing consumer expectations, and they embrace the democratization of knowledge that the World Wide Web represents. As well, some veteran lawyers are stepping forward as thought-leaders as they encourage others less experienced to listen to their clients and to rethink how they practice.

The most successful lawyers of the next generation will be those who commit their professional expertise to developing authentic partnerships with their clients – both domestic and corporate – by truly understanding how best to achieve what they need and want. This means that these lawyers will be practical problem solvers, creative and strategic thinkers, excellent communicators, and conflict engagement specialists who understand the toll that conflict takes on individuals and institutions. They will be persuasive and skillful negotiators and thoroughly prepared advocates for good settlements, willing to work in a new type of professional partnership with their clients and aware of the need to develop financial structures that offer choice, value for money, and accessibility as well as competence. This is the lawyer as conflict resolution advocate – the New Lawyer.

There will not be just one type of New Lawyer. In fact, diversity and responsiveness rather than conformity and traditionalism is embedded in the very concept of the New Lawyer. There is a need for a diversity of lawyers and lawyer styles to meet different client needs. No one process of dispute resolution is appropriate for all conflicts. There will continue to be many different arenas of professional practice for lawyers, but each practice setting will need a plan for the future that embraces change and anticipates more to come. ….Both Bay Street and Main Street firms need a business model that enables them to stay competitive in an era of paralegals, in-house counsel, and other specialists. Every member of the legal profession is affected by negative public attitudes towards lawyers and justice systems, and must be ready to meet this challenge by listening to clients, making changes, and promoting the values of professionalism and integrity.

Excerpted with permission from The New Lawyer: How Clients are Transforming the Practice of Law, Second Edition, by Julie Macfarlane, 2017, UBC Press, Vancouver and Toronto, Canada.

 

__________________________________________

[1] See, for example, Institute for the Advancement of the American Legal System, Cases without Counsel, see note 7 above; Dewar et al., Litigants in Person in the Family Court of Australia (2000); Civil Justice Council, Access to Justice for Litigants in Person (or Self-Represented Litigants): A Report and Recommendations to the Lord Chancellor and to the Lord Chief Justice (November 2011), online: Courts and Tribunals Judiciary <https://www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf>.

[2] Macfarlane, National SRL Study, see note 1 above at 46.

[3] J. Macfarlane, “Don’t Leave Me, Please Help Me, But Do it Differently: A Plea to the Bar”, (2016), online: The National Self-Represented Litigants Project Blog <http://representingyourselfcanada.com/dont-leave-me-please-help-me-but-do-it-differently-a-plea-to-the-bar/>.

[4] Susskind, Tomorrow’s Lawyers, see note 28 above at 68–70.

[5] I take this expression from Linda Mills, in her essay “Affective Lawyering: Emotional Dimensions of the Lawyer-Client Relationship” in Stolle, Wexler, and Winick, Practicing Therapeutic Jurisprudence, see note 66 above at 419. She writes: “I learned in my legal practice to rely on my psychological skills to improve my effectiveness as a lawyer” (at 421).

[6] See, for example, F.S. Mosten, “Unbundled Services to Enhance Peacemaking for Divorcing Families” (2015) 53 Fam Ct Rev 439 ; A.L. Kirker and J. Blanchard, “Limiting the Risk of Limited Scope Retainers” in Canadian Bar Association, Alberta Branch, The Limited Scope Retainer (Calgary: Canadian Bar Association, Alberta Branch, 2013), online: <https://static1.squarespace.com/static/511bd4e0e4b0cecdc77b114b/t/5473a881e4b02494ba943576/1416865921334/limited+scope+retainers_FINAL.pdf>; and “The Nuts and Bolts of Unbundling” National Self Represented Litigants Project, University of Windsor, 2016 online at http://representingyourselfcanada.com/wp-content/uploads/2016/11/Nuts-and-Bolts-FINAL.pdf

[7] Macfarlane, “Seriously?” see note 20 above; Macfarlane, “Providing Legal Services in a Coaching Model,” see note 20 above.

[8] There are growing numbers of template retainers available online, developed by law societies and other professional organizations. See, for example, a collection provided online by LAWPRO, at <http://www.practicepro.ca/practice/limitedscope.asp>.

[9] A.L. Kirker, Limited Scope Retainers: A Special Electronic Publication of the CBA – Alberta Branch Access to Justice Committee, 1st ed. (Calgary Canadian Bar Association, Alberta Branch, 2013), online: A.L. Kirker and J. Blanchard, “Limiting the Risk of Limited Scope Retainers” in Canadian Bar Association, Alberta Branch, The Limited Scope Retainer (Calgary: Canadian Bar Association, Alberta Branch, 2013), online: <https://static1.squarespace.com/static/511bd4e0e4b0cecdc77b114b/t/5473a881e4b02494ba943576/1416865921334/limited+scope+retainers_FINAL.pdf>.

[10] S. Goldberg, “The Time for Action,” CBA National (June 2013), online: CBA National <http://www.nationalmagazine.ca/Articles/Recent4/The_time_for_action.aspx>.

[11] R. Harvie, “Why Me, Why Now?” in Canadian Bar Association, Alberta Branch, The Limited Scope Retainer, see note 87 above, 6.

[12] “Access To Justice All-Star: Victoria Foster” (May 6, 2015), online: National Self-Represented Litigants Project <https://representingyourselfcanada.com/2015/05/06/access-to-justice-all-star-victoria-foster/>.

[13] See, for example, from Canada’s leading legal insurer, “Unbundled Legal Services: Pitfalls to Avoid,” LawPRO Magazine 11:1 (January 2012), online: practicePRO <http://www.practicepro.ca/LAWPROMag/Unbundled_Legal_Services.pdf>.

[14] “Practical and Ethical Considerations to Integrating Unbundled Legal Services” Colorado Bar Association (2015):online at http://www.cobar.org/Portals/COBAR/Repository/modeateIncome/Practical_and_Ethical_ModerateIncome.pdf?ver=2015-08-26-120950-387

[15] For example, the Florida Bar Association Crowell, Merrie-Roxie. “Report of the Unbundled Legal Services Monitoring Committee (Mar. 3, 2005).online at http://www.floridabar.org/TFB/TFBResources.nsf/0/B591E315F65F20FC85256FE1007766E3/$FILE/SpecialUnbunLegalServMonitorRpt..pdf?OpenElement concluded that “the Florida Bar has not received any complaints regarding lawyers providing unbundled legal services” (at 9). Similarly, the New York Bar Association online at https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26674 concluded that malpractice suits were avoidable if an adequate letter of engagement was provided.

[16] J. Macfarlane, “Unbundling ‘Unbundling’: Separating the Myths from the Realities” (April 11, 2016), online: National Self-Represented Litigants Project <https://representingyourselfcanada.com/2016/04/11/unbundling-unbundling-separating-the-myths-from-the-realities/>.

[17] Macfarlane, National SRL Study, see note 29 above at 43.

[18] Ibid. at 93.

[19] Unpublished data from the National Self-Represented Litigants Study database.

Comments

  1. Professor MacFarlane points out that clients “just know that they want a speedy and affordable solution”. There is a very quick, easy and cheap way to obtain that speedy and affordable solution: give in to all the demands of the other side.

    Ah, but what if the demands of the other side are far from the solution the client desires? How far will the client go to fight off those demands, and to pursue his or her own demands?

    “Martha” ran out of money fighting a deeper pocketed adversary. Welcome to the real, and sometimes cruel, world.

    All litigation takes time, and time is money. There is little hope of reducing the cost of litigation unless the time it takes to reach resolutions is reduced. Reducing the time is very difficult in a court system that positively delights in extending the time in order to grind litigants down so that they settle before reaching the government expenses of paid judges, paid court staff and paid infrastructure.

    Note that the system does not care whether the settlements reached prior to trial are fair or the result of exhaustion or lack of funds. The purpose of the system is to make it long, hard and expensive to get to and have a costly-to-governments trial. Actually, there is no issue with the government wanting to encourage settlements. Settlement encouragement is a good thing. The issue is how it is currently done.

    Most of the suggestions put forward only touch the edges of the problem. More e-filing, while a good idea, is not the answer. More leaflets and education, while good ideas, are not the answer (actually, in some cases, more education merely emboldens litigants to carry on the fighting). Awards for people who do something to enhance access to justice, while a good idea, are not the answer. More money for legal aid, while a good idea, maybe, is unrealistic given the crushing debt load this government has heaped upon itself, and us.

    Fixed fees tend not to work well if the dispute takes more than the anticipated time thereby making the fixed fee uneconomical. The client and lawyer simply enter into a new fixed fee arrangement (or lose) – not very different from a series of retainers.

    Limited retainers and coaching tend to send the clients off as slightly better prepared amateurs to go up against the pro on the other side.

    In the most basic litigation file with lawyers involved, there are a minimum of four parties: the two clients and the two lawyers. It takes only one of them (25% of the participants) being unreasonable to turn the whole thing into a misery. With more parties involved, the odds of one participant being unreasonable increases such that a small percentage of participants can wreak havoc on the whole process.

    What needs to be done is to reduce abilities of the unreasonable, the havoc spreaders, to adversely affect everybody else. That can be done by reducing the time available for spreading the havoc, and by instituting more effective penalties on any parties who have behaved unreasonably – not just the clients but also, and probably especially, the lawyers.

    The best way to reduce the time and cost of litigation is to reduce the time it takes to resolve disputes thereby reducing the scope for the unreasonable participant(s) to extend the miseries they are causing. That is do-able. Let’s do it. That would help thousands and thousands more people afford the reduced cost of those services, services that would be wrapped up more efficiently.

  2. Mr. Wright says that a fundamental problem is that litigation often (or is that usually) involves at least one unreasonable participant. The legal establishment continues to routinely characterize self-represented litigants as “unreasonable”, and sometimes with the more extreme term “querulous”.

    But I’m sure any experienced lawyer can cite legal battles between entities with very deep pockets in which most or even all the participants were being unreasonable all, or at least part, of the time. Maybe every potential litigant and every lawyer should be forced to undergo a psychological assessment for reasonableness. If such a test could be put together I reckon a great many lawyers and many deep-pocketed clients (including government agencies) would fail.

  3. Chris, I was referring to those cases that do feature at least one unreasonable participant. Many cases feature parties and lawyers who are being reasonable, but the issues at stake are novel or subtle or otherwise difficult such that even reasonable people have trouble sorting out what a fair result would be, and so they resort to the (expensive) wisdom of the judiciary.

    But even reasonable lawyers and clients are drawn into a government created litigation system that positively demands that excessive time be spent on the file. It is the excessive time that is at the root of the excessive costs. Basically, you have the fact and research gathering stage (an ongoing stage), the pleadings stage, the discovery stage, the mandatory mediation stage, the pre-trial stage, somewhere in there the offers to settle stage, and, finally, if you are not bankrupt by then, the trial stage. Some stages are indispensable – fact gathering, discoveries, offers to settle, and trials – but other stages mostly just drag everything out. Many judges have commented that the mediations and pre-trials add little to the process. The problem is that each of those stages, at least the major ones, is separated typically by six months. The lawyer is carrying 200+ files. When the next stage arrives in the particular file, she has to refresh her memory as to the minutiae of the file and update the research because, if she shows up at the next stage unprepared, her client will not thank her and may even sue her. All that repeated preparation takes time, and time is money.

    To reduce the ruinous time and cost of litigation, the time must be reduced, and reductions in the cost will follow, allowing more people to seek good legal advice and allowing lawyers to help more people.

    The problem is the time, and the solution is reducing the time. Nothing else ever tried to deal with this major access to justice problem has ever had any meaningful impact. If the time is not reduced, the access to justice problem will roll benightedly on.

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