7 Professional Context

Learning Objectives

To be a successful member of the legal profession, students will need to understand the various contexts in which lawyers operate.

Sub-Topic: Changes in the Legal Profession

Thomas D. Morgan, The Last Days of the American Lawyer (January 27, 2010).

When most people picture the American Lawyer, they think of a lawyer from the 1950s and 1960s in the “golden age of the American bar” where lawyers’ lives were relatively stable. Lawyers didn’t get rich in this period, but “nobody starves.” Starting in 2009, thousands of lawyers found themselves looking for any secure place to survive a declining demand for legal services. Thomas Morgan envisions a future where there is a demand for more people trained in the law, but that training may not require a three-year graduate degree like it does today.

Michael J. Kelly, Lives of Lawyers Revisited: Transformation and Resilience in the Organizations of Practice, U. of Mich. Press (2007).

This book explores how the practice of lawyering has changed over the past two decades. Kelly particularly emphasizes how practice management and organizational structures have changed, and the effects of those changes upon the lawyers experiencing them. Further, Kelly predicts several issues that future lawyers should expect to face, given current trends.

Sub-Topic: Access to Justice

Rebecca L. Sandefur, Civil Legal Needs and Public Legal Understanding, Am. Bar Found. and U. of Ill. at Urbana-Champaign.

Rebecca L. Sandefur, Professor at the University of Illinois College of Law, discusses in this handout the ways in which the civil justice needs of many Americans are not being met because those needs are not being conceptualized as legal issues. Furthermore, Sandefur argues that for Americans, the location of legal services is a more influential factor than the type of legal services in their decision to seek assistance.

Rebecca L. Sandefur, Money Isn’t Everything: Understanding Moderate Income Households’ Use of Lawyers’ Services, a chapter in “Middle Income Access to Justice,” Anthony Duggan, Lorne Sossin, and Michael Trebilcock, editors, 2012.

The cost of legal services is often given as the prime example of why many Americans are not receiving much-needed assistance. However, Rebecca L. Sandefur, Professor at the University of Illinois College of Law, argues that two important sociological factors are also at work in shaping how moderate income households are using lawyers’ services: the social construction of legality and social searching. First, people do not view their civil justice needs as legal issues, and therefore do not see legal service providers, such as lawyers, as appropriate resources. Second, social searching is a method by which people choose legal service providers based on referrals from people they already know.

Jeanne Charn, Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services, 122 Yale L.J. 2206 (2013).

Jeanne Charn, a pioneer in clinical legal education who teaches at Harvard Law School, published a startling article in the Yale Law Journal about the Civil Gideon movement and reform of courts to support expanded self help. “We should measure improved access to legal services by the extent to which self-empowered consumers are able to resolve everyday legal problems on their own or with limited assistance,” Charn argues. The surprise: with significant caveats, among the few studied types of claims, litigants with access to representation were no more likely to reach favorable outcomes than pro se litigants were.

Sub-Topic: Disrupting Legal Practice

Jonathan Jenkins, What Can Information Technology Do For the Law?, 21 Harv. J. L. & Tech. 589 (2008).

Jonathan Jenkins notes that “much of current legal work is embarrassingly, absurdly, wasteful.” While information technology has taken firm root in the workplace routines of most every industry, practitioners of law are lagging in their embrace of all that IT has to offer. Automation of basic tasks and the use of analytical artificial intelligence can greatly benefit law practices, and this piece examines the various ways in which practitioners of law can implement IT and AI tools to make their offices more efficient, effective, and profitable.

Darryl Mountain, Could New Technologies Cause Great Law Firms to Fail?, J. of Info., L. and Tech. 1 (2001).

In this article from 2001, Darryl Mountain warns that law firms that do not embrace information technology, and reinvent themselves accordingly, are doomed in the increasingly technological marketplace. The efficiencies and capabilities of those firms that do embrace IT and automation tools will, over time, marginalize those firms that do not. Whether a firm develops an in-house legal web advisor team, or commissions outside tech teams to implement similar services, Mountain predicts that law firms must modernize or die. While reading, consider (1) how the practice of law (read: clients’ interests) has changed since 2001, (2) whether Mountain’s warnings hold greater or less weight today than in 2001, and (3) how might Mountain change his advice, given the modern states of apps, connectivity, and client expectations.

Sub-Topic: Regulatory Limits and the Practice of Law

Gillian K. Hadfield, Legal Barriers to Innovation: The Growing Economic Cost of Professional Control Over Corporate Legal Markets, 60 Stan. L. Rev. 1689 (2008).

This paper focuses on the significant and increasing costs of self-regulation for a core market in which legal services are provided: services to corporate and other business entities. Hadfield notes that the procedural complexity of the law, “rooted in the traditional practices of lawyerly reasoning and dispute resolution, is the primary driver of increased costs.” Hadfield describes the history behind the costly status quo, and offers potential remedies.

Taiwo Oriola, The Use of Legal Software by Non-Lawyers and the Perils of Unauthorised Practice of Law Charges in the United States, Artificial Intelligence and Law, Vol. 18(3), (2010).

Taiwo Oriola critically reviews the 9th Circuit Court of Appeals decision In re: Jayson Reynoso: Frankfort Digital Services et al., v. Sara L. Kistler, United States Trustees et al., 477 F.3d 1117 (2007). The non-lawyer appellants were indicted for unauthorized practice of law for providing only bankruptcy document creation services. This paper discusses the specificities and ramifications of the decision, particularly in light of litigants’ constitutional and procedural rights. Finally, Oriola offers a best practices guide for the use of legal software or expert systems in law by non-lawyers.

Catherine J. Lanctot, Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law, 30 Hofstra L. Rev. 811 (2002).

Lawyers have a difficult time defining what they mean by “the practice of law,” and the lack of a clear definition causes added challenges as the practice of law faces economic crises. Though web-based automated lawyering services could alleviate some of the economic troubles faced by legal practitioners, the current, amorphous definition of “legal practice” puts such web-based services on dubious ground. This article describes the troubles of the current definition of the “practice of law,” and proposes a more effective alternative.

ABA Standing Committee on the Delivery of Legal Services, White Paper: An Analysis of Rules that Allow Lawyers to Serve Pro Se Litigants, Am. Bar Ass’n. (2009).

The various jurisdictions in the U.S. employ differing rules to regulate attorney-client relationships. This white paper discusses how states are modernizing these rules to accommodate the increasing number of pro se litigants nationwide. In order for lawyers to service clients who would otherwise represent themselves in court, states have created or updated rules regarding limited-scope engagements. Essential aspects of such limited attorney-client rules are discussed, including communication between counsel and parties, document preparation, and parties’ rights and obligations under various circumstances. Finally, the white paper provides appendices that serve as quick guides regarding the specific questions and rules discussed throughout.

Janson v. LegalZoom.com, Inc., 802 F.Supp.2d 1053 (2011).

New legal questions emerge as technology facilitates more expedient and convenient delivery of legal services. In this 2011 case, the U.S. District Court for the Western District of Missouri examined whether LegalZoom, a popular online legal solution site, was engaged in the unauthorized practice of law when its online portal offered a legal document preparation service to customers. The court heard arguments based in Missouri state law as well as constitutional questions related to the First Amendment, due process, and preemption.

Laurel S. Terry, Steve Mark, and Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012).

Globalization and modern technology have increased the pace of change in the legal profession, and so practitioners and regulators are constantly faced with novel problems to resolve. This article identifies six different types of challenges facing modern lawyers and regulators and analyzes some of the regulatory trends that are emerging in response to those issues. With a special emphasis on the justifications for regulation of lawyering services, the authors discuss regulatory reactions to novel uses of technology by lawyers around the world.


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