f/k/a archives . . . real opinions & real haiku

September 16, 2003

Internet Lawsites Encounter the Profession’s Guild Mentality

Filed under: pre-06-2006 — David Giacalone @ 12:57 pm

Carolyn Elefant and Jerry Lawson pondered “The Demise of So Many Online Legal Websites” last week, on eLawyer Blog (09-09-2003), spurred on by the Washington Business Journal /BizJournal.com article Failed Internet Law Sites Guilty of Too Much Optimism, written by Roger Hughlett (September 5, 2003) (free; regis. required). Hughlett suggests that perhaps the time was simply not right yet, that the Web is just the wrong place to sell law services, and that a failed business model was used that relied on large upfront expenditures by partners and ad revenues.

Carolyn, who regularly offers her insights at MyShingle, pointed to the mistake of charging lawyers fees upfront to participate and the failure to offer attorneys and bar associations free access to test the quality and usefulness of the site. Jerry agreed that “the failure to attracts a critical mass of lawyers is particularly important.”

Each of those points has some merit, but my experience looking at learned professions from the competition-consumer perspective tells me that the real culprit is the historic “guild” mentality, which fears and opposes virtually every type of innovation in services or marketing. This is especially true if most guild members see themselves as threatened with the loss of business and income, the need to become more efficient, or the pressure to engage in price or quality competition. In addition, in the last few decades, doctors and lawyers have been most reluctant to cede their position of unquestioned authority to mere consumers. (see our posting on Sept. 4, 2003, discussing the new breed of client and unbundling)

  • In the medical field, therefore, we saw great resistence to turf invasion by the “lesser skilled” providers of similar services — with obstetricians opposing midwives, orthopods opposing chiropractors, anesthesiologists opposing nurse anesthetists, dentists opposing hygenists, etc., as the newcomers attempted to receive insurance coverage or hospital privileges, or to practice independently. We also saw a determined fight to stop any form of medical practice other than fee-for-service, with the biggest battle being against the employment of doctors directly by HMOs or hospitals.

In the legal field, besides the ancient taboo against advertising, we saw or continue to see the denigration of “lawyer mills” that offer no-frills services, decades of opposition to the increased use of alternative dispute resolution options, localized efforts to prevent the establishment of public defender offices to replace assigned counsel panels, opposition to increasing small claims court damage limitations, efforts to stifle the spread of self-help legal software (see the tale of Nolo v. Texas) and to stop court-sponsored self-help centers, and reluctance to consider unbundling. (see the JuDee awards we bestowed on July 13, 2003 and, in general, our Access and Affordability Resources page )

With this history — plus the typical inertia of human beings who feel relatively comfortable — it is not surprising that very few attorneys took advantage of the new marketing and service tool of internet web sites. I’m not sure if free participation or free samples would have made much of a difference.

Because other people’s anecdotes and analogies often seem irrelevant or inapt, I try not to rely on either device excessively. However, I believe that my own effort to establish a divorce mediation practice in a region that had no lawyer mediators is instructive. When I came to the New York Capital Region in 1988, the concept of mediation was virtually unknown to the public. Lawyers, especially divorce lawyers, were quite pleased with that situation, and the rare inquiry by a client about mediation was dismissed, saying the service was only provided by social workers and volunteers who knew nothing about the law. What the bar did not want to see was a lawyer offering mediation services. Therefore, although I had made many friends in the profession before attempting to open a mediation practice in 1990, my doing so left me feeling like a pariah.

It was clear to me that I could not expect lawyers to send a divorcing or separated client to me for mediation (despite the many advantages to the client). However, I wanted to create a referral list of family law and divorce lawyers from which my mediation clients could choose, if they wanted our divorce agreement reviewed or wanted a mediation coach. The lawyers on the list needed to be willing to cooperate with a client’s desire to first attempt to resolve the conflict through mediation. Therefore, I created a package of information (describing mediation and its benefits, explaining the need and role of the attorney retained by a mediation clients, and giving my legal and mediation background). I sent this packet to virtually every lawyer and law firm in the Region that was listed as doing marital and family law in the phone book — around 150 packets. I received only two responses (both favorable).

  • In addition, one lawyer with whom I had an amiable relaionship at Family Court encountered me on the street. He said, “Frankly, David, I have never given a thought to mediation, because I consider it as money out of my pocket. But, you can refer your mediation clients to me, so long as you agree to send them all to me exclusively.” I declined.
  • Eventually, over the next couple of years, I approached individual attorneys who seemed likely to be sympathetic to the notion of putting the client’s interests first (most were solo’s or part-timers who mainly took assigned cases at Family Court), and my referral list grew to about a dozen.

Why the disinterest in being on a referral list that could bring them clients? The most likely answer is the reluctance of the bar to give any credence to the concept of mediation as a professional alternative — especially when they could no longer say that the mediator knew nothing about the law or about drafting a usable document. This reluctance was also demonstrated when, as a member of the local bar association, I asked if I could make a presentation (at a monthly meeting) explaining the potential benefits of mediation to clients. My request was never honored.

The county association and the state bar association did, however, support the funding by the State of local volunteer mediation centers — centers that would primarily serve the poor and that could readily keep mediation in the non-professional ghetto. Even local judges were reluctant to suggest mediation to parties, and privately told me that they would get too much heat from the local divorce bar, which included almost all law firms in town. Similarly, the local divorce bar opposed the notion of the court offering or requiring litigants in divorce, custody or visitation cases to attend seminars on parenting for separated parents. The lawyers did not want to “lose control” of their clients and be told that strife was hurtful to the children.

I’m not saying that there will never be a financially viable format for delivering legal services online. I am say, however, that expecting a broad and significant amount of interest from the bar or its members is unrealistic. Most likely, individuals or small groups of lawyer-entrepeneurs will have to carve out target markets of consumers and attract them to their sites. Piggy-backing on the self-help services of courts — by offering complementary unblundled services — might be a good place to start. Just remember: the guild won’t make the efforts easy.

P.S. Sherry (a/k/a Scheherazade) at Civil Procedure [which is well worth a click, if you’re interested in the thoughtful reflections of a still unjaded new lawyer] left a Comment worth sharing here on the Home Page:

There are so many circumstances in which a sensible, practical, reasonably priced solution to a client’s problem needn’t involve a lawyer, or needn’t involve a lawyer for long. Why on earth should acknowledging that be so antithetical to so many lawyers? It’s absurd.

Editor’s Reply: I don’t know if this was a rhetorical question. If not, my pithiest answer would be: fear of losing dollars, control, prestige.

More expansively, it seems that most lawyers expected a very good lifestyle to come automatically with their J.D., along with high social status. They are angry and worried that the marketplace doesn’t value their services as highly as they had expected, and they are bewildered that society doesn’t give them the anticipated respect. Good intentions of any one individual lawyer can be readily overwhelmed by the demands of partners (at work and home) to keep the income stream flowing. The result, as individuals and as a group, is resistance to any change that threatens to further undermine their financial and social position. As stated with refreshing candor in a recent bar association publication, “the top concerns of the practicing bar are the economics of the practice and the image of the profession.” (Illinois State Bar Association Bar News, June 16, 2003)

P.P.S. This conversation continues in our Comments, and at Scheherazade‘s Civil Procedure, where it has morphed into the question “Why Are Lawyers Snobs?”, and I’ve suggested that snobbery exists but need not be important at all.

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