How Information Technology and Fading Borders Are Reshaping the Law Marketplace and What We Should Do About It

In late April, I went back to NYU School of Law for Reunion.  The proceedings included presentations on hot-button topics for alumni.   A “must” for me was the presentation by Stephen Gillers, Elihu Root Professor of Law at NYU, which was delivered to a standing-room audience, and created quite a buzz.

Professor Gillers does most of his research, writing, and speaking on the topic of regulatory issues related to the legal profession.  He is the author of Regulation of Lawyers: Problems of Law and Ethics (2012), a widely used law school casebook, now in its ninth edition.  A professor at the law school since 1978. Professor Gillers was associate dean from 1999 to 2004.

In the program highlights, Professor Gillers noted that “the geocentric model of lawyer regulation worked passably well.  Lawyers were licensed in the state where they had their desk and pretty much stayed put.  Only lawyers could earn money from the sale of legal knowledge to clients.  That world is fading, if not gone.  What has replaced it?  What will it mean to law practice as we’ve known it?  How should the bar respond?”

According to Prof. Gillers in a Working Paper, “[t]echnology is changing the way we do business. It has made cross-border trade in goods and services easy.  Capital is finding ways to profit from the law business.  Lawyers strive to serve clients wherever they need help, including outside their jurisdiction of admission. These changes not only affect how American firms work; they challenge our system for licensing and regulating lawyers.  The traditional geocentric model for regulating the bar, based on physical place of practice, is unstable today because lawyers can practice physically in many places and (virtually) in every place, yet no place in particular.”

“The next twenty years are likely to see greater transformation in how the American (and world) legal profession are organized and ply their services than was true for any comparable period in history.  We have two choices.  We can try to impede these forces in order to preserve a familiar and comfortable world that seems to be slipping away.  Or we can decide that today’s rules should adapt to accommodate and direct the forces at bay in order to preserve the values of the American bar, which include the efficient delivery of services at reasonable cost.  This article endorses the second goal and describes how we might seek to achieve it.”

As Prof. Gillers noted during the forum, several relevant cases are wending their way through the courts, supplementing his Working Paper, paper, prepared in 2012.  I have spent a good deal of time reviewing Professor Gillers’ Paper and, with his permission, offer within this blog a brief abridgment of his detailed analysis and comments, with relevant citations.  Suffice it to say that it has been a fascinating exercise.  It is a time of continuing change–of challenge and opportunity.

In Part II, which will appear in a succeeding blog post, Professor Gillers signals wide-sweeping changes in law practice.  In Part III, the concluding installment, he sets forth “eleven recommendations for change, (with qualifications).”

Some years ago, while at the American Bar Association, I was privileged to carry an article by  Professor Gillers in Bar Leader magazine, with a circulation among elected and staff officials of state, local, and specialty bar associations.  I am indeed fortunate in this encore to get his important message across to solo practitioners and partners in small firms who are, and will continue to be, uniquely impacted by the changing legal landscape.

Editor’s Note:  It is interesting to note the derivation of the title of the paper by Professor Gillers as set forth in f.n. 1 to his paper (which may be familiar to some readers).  James McHenry, a Maryland delegate to the Constitutional Convention, recorded the following exchange with Benjamin Franklin at the close of the Convention:  “A lady asked Dr. Franklin, ‘Well, Doctor what have we got, a republic or a monarchy?’  ‘A republic,’ replied the Doctor, ‘if you can keep it.’”