As promised, here is a recap from the AALS PR Section Program that took place yesterday morning. I didn’t have access to Internet at the time, and then I found myself wanting to think a bit more about the presentations, so here is a slightly delayed posting of my attempt at live-blogging. I’ll do my best to make you feel like you were there. (My apologies in advance to the speakers if I butcher your presentations in the process…I know my recap won’t do your excellent talks justice, but I will try to at least hit the highlights…and others who were in the audience, please feel free to supplement my observations with your comments.)
Bill Simon spoke first on securities and tax practice and the frontiers of the gatekeeper role. On the gatekeeping role, he noted that these sorts of regulations represent strong reinterpretations on confidentiality and other traditional roles of a lawyer. He also observed that gatekeeping regulations are radical departures from traditional regulation by state bar authorities. He then turned to a discussion of the different responses to gatekeeping regulation by the securities and tax bars. Securities lawyers took a consistent position of resisting gatekeeping regulation and were fairly politically effective. In contrast, the tax bar was divided, and professional opposition has been less effective. He concluded by reflecting on lessons that might be learned as we examine the different reactions, and suggested that legal ethics scholars should focus on these developments both because of their intrinsic importance but also because they may lend insight into how lawyers are regulated generally.
Scott Cummings spoke next about the market for public interest law, raising some fascinating questions about how pro bono work has changed from the 1970’s to 2010. For example, has the substance of pro bono work changed over the years? Are attorneys spending more or less time on pro bono work? How are cases selected? What is the quality of the work? What are the consequences of these changes? His questions lay the groundwork for his future research on development of pro bono in the private sector, in particular the pro bono work done by law firms. Some of his statistics are particularly eye-opening. For example, he compared data from Handler, Hollingsworth & Erlanger in 1978 reporting an average of 120 hours of pro bono work per lawyer annually, compared to 49 hours per year in 2009 by lawyers in AmLaw 200 firms (a figure that garnered some skepticism from the audience, and led to the question of how we define what constitutes pro bono work—e.g. is it truly pro bono if ultimately the lawyer is paid?). He also discussed survey results on why law firms select particular pro bono cases, in particular that two primary motivators are associate recruitment and training opportunities, and reflected on how that might compromise access to and the delivery of legal services.
Nora Engstrom spoke next about her work on settlement mills (see Run-of-the-Mill Justice here) and how she is building on this to explore the impact of advertising on access to legal services. To open her discussion, she gave a brief description of settlement mills, listing four traits: (1) aggressive advertisers; (2) high volume of small claims (average lawyer settles 350 claims/year but one attorney from her study reported settling over 600 claims in 13 months); (3) entrepreneurial orientation (business first, law firm second…very little legal research or factual investigation or traditional lawyer work, heavy reliance on non-lawyers…lawyers described work like “an assembly line”); (4) focus on settlements (sometimes maintained with quotas or contests to encourage higher legal fees, some firms never took a case to trial despite settling thousands of claims). She then turned her focus to how this connects with access to justice and attorney advertising. On one level, the Bates v. State Bar of Arizona decision allowing lawyer advertising can be seen as a success, she said, if the goal was to encourage more claims, since there has been an increase in the kinds of claims handled by settlement mills (predominantly soft tissue injuries) since 1977 when Bates was decided. The puzzle, she suggested, is that settlement mills are mostly utilized by the poor. She cited three possible reasons for this: (1) When low income individuals pursue tort claims they are more likely to seek assistance of counsel. (2) Settlement mills settle quickly and the poor might disproportionately want payments that are certain and without delay. (3) The poor are likely to select attorneys based on advertising. To explain the third factor, she noted that the poor have fewer alternatives, advertising may be targeted to the poor, and the possible belief among the poor that advertisers are superior to non-advertisers. Thus, she concluded that we see a replication of the traditional access to justice gap but it is playing out differently in this contingent fee context. Here the problem isn’t that the lawyer is unaffordable, but that the client may be unable to make a wise choice about the legal advice she obtains if her only information source is the aggressive advertising approach used by settlement mills.
Rob Vischer wrapped up the panel discussing his paper Trust and the Global Law Firm: Are Relationships of Trust Still Central to the Corporate Legal Services Market, draft here. He focused on the nature and role of trust in the attorney-client relationship, asking whether relational trust will be a casualty of economic pressures and the emphasis on technical competence in the face of globalization and disaggregation of legal services/outsourcing. In other words, are modern attorneys selling a product or a relationship? In my mind this question goes to the very heart of access to legal advice, since as Rob noted, discretion is a part of legal advice and thus trustworthiness necessarily becomes a significant, valuable component of the lawyer’s advice-giving function. He also explained how some regulatory changes might look different when viewed through trust, noting the relevance and importance of public perception in order to have public trust. He cited the example of the recent change to Model Rule 1.10, where lawyers can switch sides if screened. What happens to “trust in” the lawyer, he asked, even if the client can “trust that” the lawyer will be screened? In reflecting on the question of whether we are technicians or trusted advisors, he concluded that in many ways it will be trust that makes the lawyer’s role coherent and distinctive.