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REGULATING THE CHANGING LEGAL PROFESSION:

REGULATING THE CHANGING LEGAL PROFESSION: . RESPONSES TO THE IMPACTS OF TECHNOLOGY AND GLOBALIZATION presented by – PROF. ROBERT E. LUTZ Southwestern Law School, Los Angeles (and A. von Humboldt Fellow @ U. of Augsburg ) at German Bar Association/ABA SIL Conference

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REGULATING THE CHANGING LEGAL PROFESSION:

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  1. REGULATING THE CHANGING LEGAL PROFESSION: RESPONSES TO THE IMPACTS OF TECHNOLOGY AND GLOBALIZATION presented by – PROF. ROBERT E. LUTZ Southwestern Law School, Los Angeles (and A. von Humboldt Fellow @ U. of Augsburg ) at German Bar Association/ABA SIL Conference June 20, 2011; Munich, Germany

  2. CHANGES • Technological • Globalization • Demographic

  3. CHANGES, cont’d • Technological- Mobile phones, BlackBerries (“Crackberries”), I-phones, I-pads, IM, instantaneous electronic research, instant opinion-making, word processing, electronic filing. Facebook, Twitter, LinkedIn, Quepasa, social media, social networking, advertising, rankings (law firm, lawyer) Consequences: Virtual lawyering possible; outsourcing; cloud computing; gradual irrelevancy of borders; “pay-per-click” advertising; lawyer counseling websites; traditional lawyer services can be commoditized; 24/7 legal services (significant reductions in turn-around time, but time for introspection/rumination dramatically curtailed); e-discovery; remote learning-educational programs/certificates to reach larger groups in broader geographical areas.

  4. CHANGES, cont’d • Globalization Blending of borders Global law firms to respond to global business Non-national, non-litigation dispute-resolution Virtual law offices Involvement of non-lawyers as: service providers (e.g., accountants, etc.) and as financiers New forms of business organization Demands for skill-sets that require a broad education and often an understanding (and, perhaps, qualification) in multiple legal systems.

  5. CHANGES, cont’d • Social and Legal Practice Demographics • “Baby-boomers” are retiring • Business clients creating in-house positions • Recession/outsourcing, etc.= less hiring, reorganization of firms (e.g., loss of partnership tracks; contract lawyering) -- Solo and small firms increase -- Compensation models are undergoing change(e.g., billable hour v. alts) -- Gov’t positions = more sparce due to recession, budget deficits, politics that want less government -- Costs of legal education at many U.S. law schools (graduate degree) are approximately $200,000/3years; if couple this with a 4-year undergraduate indebtedness of 250-300,000 from private/public = $500,000 before the student even starts to practice.

  6. WHAT DOES THIS MEAN??? 1. “The ‘Profession’” (its sole existence) is challenged because Its Core Values—possessing a kind of sacro-sanct position in the profession--are being tested by these social, economic phenomena: √ confidentiality (fiduciary √ independence (responsi- √ zealous representation (bility to client √ equal access to justice )public/ √ advance rule of law )consumer protection

  7. Meaning? • The “Practice of Law” (and how it is regulated/self-regulated) is being specifically tested by the following : A. Legal Practice Environment is Changing B. The Rise of Transnational Lawyering C. Changes in Traditional U.S. Legal Institutions

  8. A.Changing Legal Practice Environment • Competency- Is there a fundamental obligation of lawyers to stay abreast of technological developments? • Outsourcing-Lawyer’s ethical obligations when retaining non-firm lawyers OR using non-lawyers with respect to disclosure to client, with regard to confidential info? • Technology-associated Confidentiality Concerns-Obligations re: info storage on personal portable devices, or on 3P services? • Marketing(advertising)via Internet, etc.-

  9. B. The Rise of Transnational Lawyering • Conflicts of interest/choice of law- how should ethics issues that implicate multiple jx’s, when those jxs’ ethics rule conflict? • Inbound Foreign Lawyers-what “safe-havens”? For foreign in-house counsel? Foreign FIFO (temporary) practice rights? Pro hac vice for foreign lawyers? • Alternative Models to Increase Lawyer Mobility- “Driver’s license”? EU approach? Canada? Australia?

  10. C. Traditional U.S. Legal Institutions • Entity regulation/ABS- Does allowance of non-lawyer ownership/esp. public ownership of law firms threaten core value of independence? • Third-party Litigation Financing- Does such financing of litigation costs affect independent judgment/competent representation of clients? • Educational requirements to qualify for U.S. bar membership- proposed U.S. state bar qualification rule via LL.M route.

  11. CHANGE andThe Role of the ABA • ABA Commission on Ethics 20/20 is responding to the challenges. • It is continuing public hearings to receive reactions to its ideas on many of these topics from interest persons in the U.S. and from other countries. • www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics.

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