The Future of Law (Part Two): New Ethos, New Ethics

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For our first prediction, we’ll do an easy one:  the Model Rules of Professional Conduct will be changed to accommodate multijurisdictional practice and nonlawyer ownership of law firms.

This will happen when the tipping point of all the new practice developments we’ve been talking about is reached. The creation and adoption of the new rules will come quickly after that, because a new cultural ethos must have new ethical standards. In the meantime, the snowball is already rolling down the mountain — see, e.g., the ABA Commission on the Future of Legal Services we talked about last time.

The new Model Rules will trigger a cascade of related and derivative developments. None of these are hard to foresee. Here’s a sampling:

 

  • The process of adopting the new Rules will of course happen state by state, starting slowly, with intense polarization between adopters and non-adopters. The historically progressive states will lead the way.
  • Some states will be opportunistic in the early going, vying for status as the go-to jurisdiction. (Think Delaware corporate law. I saw this in my law practice when domestic asset protection trusts came into vogue, and states like Alaska and South Dakota jumped to the front of the line. The same thing happened when LLC’s first appeared, and Wyoming and Colorado jumped in.)
  • Because the new rules will be vigorously contested, a decision comparable to the lawyer advertising case (Bates v. State Bar of Arizona, 433 U.S. 350 (1977)) will be required to pave the way.
  • Once the new Rules are in place, professional corporation and similar laws governing law firm ownership will be revised.
  • Confidentiality and privilege will be expanded to nonlawyers in the new organizations.
  • With respect to clients, the earliest versions of implementation will be based on client disclosure, waiver, and consent, and likely will also require registration of the organization and its principals with the state (with background checks required).
  • There will be supervisory mandates governing the roles of the lawyers involved in the new multidisciplinary practice models.
  • BigLaw will jump in with both feet. Mergers with multidisciplinary and multijurisdictional partners will become the news du jour.
  • Group and prepaid legal service organizations, legal franchisors, and comparable market players will also be quick to jump in.
  • And so will industries that have historically worked closely with law firms — e.g., insurance, stockbrokers, financial planners, accountants, investment bankers.
  • But not too quick: these industries are highly regulated, and therefore new enabling laws and administrative rules will be required.
  • The malpractice industry will get a complete makeover.
  • Bar Associations will reinvent themselves to accommodate the newcomers who aren’t members of the bar.
  • There will be a huge CLE bonanza around all these developments.
  • Law schools will restructure curriculums to both teach the new rules and to offer classes in legal organization structures and business management that entrepreneurial lawyers are currently getting elsewhere.
  • Litigation and legislation and administrative proceedings will abound, and the whole thing will become a massive growth industry.
  • And so on and so on and so on.

It will take at least a full generation to assimilate all these changes, but 50 years from now lawyers and their nonlawyer colleagues will wonder what all the fuss was about.

More predictions coming re: how all of these and other developments will change not just law practice but the law itself.

Author: Kevin Rhodes

Kevin Rhodes has been a lawyer for over 30 years. Drawing on insights gathered from science, technology, disruptive innovation, entrepreneurship, neuroscience, and psychology, and also from his personal experiences as a practicing lawyer and a “life athlete,” he’s on a mission to bring wellbeing to the people who learn, teach, and practice the law.

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