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.
David:
As usual, your points about the Bar’s (and many lawyers’) animosity towards self-help and online services are well taken. In that respect, the failure of these websites to take steps to capture attorneys such as myself – who would have been willing to refer clients to these sites is even greater. And in fact, as I said in my posting, I would have gladly sent clients whom I turned down to referral sites had I been confident that (1) they actually worked; (2) and offered accurate information and (3) would eventually refer clients to lawyers who would return phone calls, etc…However, as a lawyer, I don’t like to send clients in circles and I won’t refer them to a source which is not going to be able to be of assistance.
As a final point, many of the bar associations and trade press periodicals did make note of these websites. But the articles never tested the sites and thus, offered little except for puffery and PR.
By the way, the depth of your postings is becoming even more impressive as you continue to blog. Really enjoying the site – and I guess many others are as well.
Comment by Carolyn Elefant — September 16, 2003 @ 8:29 pm
Carolyn, Thanks again for taking the time to offer your thoughts and enhance the discussion. And, thanks for your kind words about this weblog. I’m afraid that your commitment to clients’ interests and to professional excellence is the exception. Yes, there are lots of hard-working, diligent, caring lawyers, but they are far too small a fraction of the total. The average Joe or Jane Client is often stuck with the “lumpen proletariat” of the legal profession, which is unlikely to ever live up to our profession’s goals. Consumers need real options that give them real value. The internet and other technological advances may make that possible.
Comment by David Giacalone — September 16, 2003 @ 9:04 pm
David, thanks for your sensible voice.
I’m still new and generally bright-eyed about this profession, but the stodgy, insular, arrogant, change-resistant nature of some lawyers and the profession at large frustrates me to no end. 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.
Comment by Scheherazade — September 17, 2003 @ 11:43 am
I don’t know if this was a rhetorical question. If not, my pithiest answer would be: fear of losing dollars, control, prestige.
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 are 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)
(I’m adding your Comment and this Reponse as a postscript to the original posting.)
Comment by David Giacalone — September 17, 2003 @ 12:37 pm
Well then we deserve to be undermined.
What’s even sadder about the whole thing is that the debt loads new JDs carry gives them at least the perception (and for many, I think, the reality) that working for less than $100K a year is impossible. So they graduate with a vested interest in keeping the economics and the image of the profession where it is, just to pay off their loans.
Comment by Scheherazade — September 17, 2003 @ 2:37 pm
This is an issue I wish you would think and write more about, Shelly, because I’m viewing it from a different generation’s perspective and want to hear yours. Students enter law school knowing about the debt that will follow, and merely assume that things will work out fine, given the anticipated stream of income. Most went for the big bucks and expect to obtain them. Perhaps some reality testing prior to law school would help. Unfortunately, law schools are money-makers and their parent institutions keep increasing class sizes, despite the universal feeling that there are already too many lawyers.
In a normal economic market, we’d expect the excess of lawyers to produce falling prices for their services, or at least smaller increases in the price of legal services. The legal profession has been able to avoid that (except for its lowest economic strata), because — analogous to medical doctors — lawyers can in many ways create their own demand, once they are retained by a client, and can also delay or stymie alternative forms of legal services that would bring competition, innovation, efficiency and less expensive options for consumers.
The discussion about law school debt at Math Class for Poets leaves me a bit perplexed. A relatively new lawyer (still unmarried) is already feeling trapped by “golden handcuffs.” To be honest, it seems to me that those handcuffs are self-imposed. The key to releasing the cuffs is deciding that a less expensive lifestyle is acceptable — including less expensive neighborhood and home, auto, wardrobe, vacations, hobbies, and social life. It sounds like a rather flimsy excuse for someone who does not yet have a family to support to say, “I want to use my degree to change the world, but my debt is too high.”
Maybe I should blame my generation of middle-class Baby Boomers for raising, on the whole, a generation of children who feel entitled to most of the amenities of a successful middle-class lifestyle, even when first entering their careers.
Yes, there are lots of things a lawyer cannot afford, if she or he wants to do public interest or public service law, or even wants to try new models of offering legal services as an entrepeneur. (Also, that lawyer may need to find a mate who can accept the consequences.) If you snap on those handcuffs in your 20’s, don’t kid yourself that they will ever come off. There will always be another level of spending that is “necessary,” after the debt is paid off — bigger home in the right neighborhood (with bathrooms for everyone), tuition for the right schools for the kids, ski trips, more and better cars, ad nauseum et ad infinitum.
For most neophyte lawyers, saying “My debt keeps me from trying to improve the world” actually means “My current and projected lifestyle needs are more important to me than trying to change the world.” That’s not necessarily bad (it’s an attitude that keeps our GNP high). Being honest about your own goals and values is far better than self-serving whining. That honesty might lead to a change in goals and a change in perspective about whether they can be achieved. (that’s my preach quota for today)
Comment by David Giacalone — September 17, 2003 @ 4:14 pm
I think we agree. Turned down a skyscraper law job in the big city after a remunerative and interesting summer associateship because while there I heard too much about “golden handcuffs” and I didn’t want to become accustomed to earning huge dollars at a young age. That and most of the lawyers I saw there were unhappy. I respected and enjoyed them but didn’t admire them.
Here I’m at half what my salary would have been there. It’s still twice what my parents’ combined income ever was and I try to remember that. It’s let me buy a small house, save for retirement, and, perhaps, save enough for the medium term that I can someday scale back my practice and try writing or government work or something else. My own debt is ever-present, but not prohibitive, because I went to a state school. And my standard of living is just slightly better than it was when I was a poor student.
But I will think and write more about it, I promise, because I think it’s more complicated than this. Some of my peers I most admire made different choices, and I understand why. In fact, I’m very happy with my own life and my law firm but regularly question whether I should have gone to a more prestigious law school or firm. There’s a pervasive credential-based snobbery in the profession that is almost impossible to get away from. I don’t think young attorneys who acknowledge this and try for the “brass ring” — expensive school, white shoe firm, can be taken to task for being selfish or short-sighted.
Comment by Scheherazade — September 17, 2003 @ 5:18 pm
I have to disagree about mediation and lawyers reactions to it. In most markets, all it took was familiarity with mediation for lawyers to embrace it. As for the collaborative law model, it is alive, well and expanding.
Yes, some people have anecdotal evidence of bad experiences — but usually while others in the same communities are having good experiences.
As for golden handcuffs, with my wife out of her residency we are still in the same house, still with the same friends, still pretty much the same clothes and spending habits. We accelerated paying off debt and then taking the same revenue stream into savings. By Christmas, if she decides to just walk away from any work at all, we can afford it.
Anyway, I feel comfortable talking on both topics, and realize that the illustrations are not the point, but they are important to the point, as is the truth.
As an aside, the roots of the mediation movement were in community centered pro bono programs. Far from being a “ghetto” such programs are authentic to the roots and found across the country, many of them going on forty or more years of age.
Comment by Stephen R. Marsh — September 29, 2003 @ 11:11 pm
Stephen, thanks for taking the time to give a thoughtful reply. I’d like to know about your experience. What state are you practicing in? There are very few that seem to fit the rosy picture you describe. Would the lawyers have embraced it if the court system or the legislature had not, OR if the public did not know about it?
I believe mediation is far too good of an idea to stymie, if there is a great enough core of public information about it. My point was that attorneys in general did not embrace the idea until forced to by public demand or government mandate. If you know of a state where the experience is different, I’d love to know about it. Despite all of its benefits, mediation is still unknown and therefore unavailable in most states to the “average” consumer of legal services (not the corporate or wealthy client who has leverage with the legal profession). Its share of the legal services market is still very small. From my perspective, unless mandated to do so, most lawyers do not willingly suggest mediation to clients who have not initiated the idea.
I’ve glad you and your wife had such good options and made such good choices. Your story is an important part of the story for those within the profession who feel somehow trapped.
By the way, I used the term “ghetto” in quotes to show that it was not my term nor my feelings. My mediation roots are in community mediation and I respect it completely.
Comment by David Giacalone — September 29, 2003 @ 11:34 pm
Very nice blog. It is very helpful. http://www.bignews.com
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[…] Is your bar group a guide (helping to improve and expand self-help) or a guild (building walls against self-help and looking after the financial interests of lawyers first)? Please let shlep know what is happening in your bar association, and help make things happen yourself. [click to read more thoughts about the profession’s guild mentality] […]
Comment by shlep: the Self-Help Law ExPress » Blog Archive » a guide or a guild: where does your bar group stand? — September 15, 2006 @ 1:20 pm
[…] Having said that, I am not at all certain that the change — a revolution that brings true price and service compeition to the lawyering marketplace, and creates more viable choices for consumers — will benefit a large percentage of consumers any time soon. Under the fold, I have excerpted a posting from my weblog f/k/a, ”Internet Lawsites Encounter the Profession’s Guild Mentality“ (Sept. 16, 2003) that discusses why the legal profession’s “guild mentality” has kept if from adopting new techology and responding to competitive forces, as lawyers try to hold on to income, control, and status, in the face of a new breed of consumer. Excerpts from “Internet Lawsites Encounter the Profession’s Guild Mentality,” Sept. 16, 2003, at the ethicalEsq-f/k/a weblog: . . . [M]y experience looking at learned professions from the competition-consumer perspective tells me that the real culprit [in the failure of websites offering legal services] 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) . . . . 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. . . . . […]
Comment by shlep: the Self-Help Law ExPress » Blog Archive » LegalZoom and the future of lawyering — January 23, 2007 @ 1:56 pm
[…] Chandler is tasked with utilizing technology to streamline legal processes. He notes that the legal industry sometimes seems to be ‘the last vestige of the medieval guild system to survive into the 21st century’.” [It’s nice to see someone other than Your Editor deride the profession’s guild mentality; e.g., here and here.] […]
Comment by shlep: the Self-Help Law ExPress » Blog Archive » Cisco turns to legal self-help and unbundling — February 1, 2007 @ 9:25 am