Asynchrony? Traditional legal ethics rules in new marketplace for legal services? Stimulating NCBA program

The North Carolina Bar Association program, Toward a Leaner & Cleaner Practice – A Professional Responsibility to Innovate?” brought together leading North Carolina practitioners from the new marketplace for legal services – and Professor William Henderson, a recognized student of what is happening. Respected Greensboro arbitrator/mediator and sometime professor Jon Harkavy, will perhaps not be insulted if he is characterized as providing a “bridge” between traditional practice and the new marketplace.

Wilderness Society photograph

“As the snow flies, a bald eagle watches intently for movement in the Gibbon River.” Wilderness Society

As pictured at the program, today’s market is divided between (i) individuals who cannot afford bespoke legal services, on one hand; and (ii) large, sophisticated organizations on the other, who are demanding efficiencies from law firms and directing how they want things done. Importantly, sophisticated purchasers of legal services now have new alternatives. Legal services can be acquired from law firms, or from legal departments, or from alternative service providers (these are various, mostly IT-enabled, service companies that are not law firms, and, in some cases, may be paralegals).

Traditional rules of legal ethics fall unevenly across this picture.

Traditionally, lawyers have been the sole providers of legal services. The last 30 years was a period of economic expansion and growth in demand for legal services. In that environment, rising costs were borne by large clients without much resistance. In broad terms, ethical prescriptions tended to favor the ideal over the practicable. Every legal service was required to be delivered, or closely overseen by a licensed professional assumed (by virtue of the license) to be competent, independent and loyal to a punctilio.

Ethical solutions gave less shrift to efficiency.

Today, newly sophisticated clients can assess for themselves how much competence, independence and loyalty matter to them (that is, they might prefer the less expensive services of an imperfect computer program and an unlicensed paralegal, to a squadron of lawyers). And, large clients can choose among lawyers, legal departments, and alternative service providers to get work done.

Increasingly today, definitions of the practice of law that exclude non-lawyers; and ethics regimes that value perfection over practicability, look out of sync with the developing marketplace.

Sophisticated clients don’t need the protections the traditional rules provide; unsophisticated clients can’t afford the perfection.

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