President John Adams said, “Facts are stubborn things.” You can’t change reality, so you need to face it head on. It might sound crazy, but you should seek out bad news – the earlier you find it, the earlier you can do something about it before it gets worse. Look for problems and become the solution. Nothing good ever comes of avoiding the hard truths. ~ Joel Peterson,  Chairman, JetBlue Airways

(photo credit: Globster)

Many in the legal profession have already made their 2022 predictions almost a year ago (and 2023 will be coming soon). They will showcase trends in technology, staffing, management as they see it and much more, particularly as it relates to the actual practice of law. I applaud the vision and guidance they bring to our profession. I’ve made them along with my podcast buddy, Jared Correia. However, as many of you know, I tend to go for the much, much bigger picture, the economic trends facing your clients as money (or lack thereof) drives the realities of your day-to-day practice from your marketing efforts, your choice of practice areas, your office set up, your fee structure, how you package your services, and even your personal life style.

2022 has already proven to be a doozy as I believe the pandemic these past two and a half years set the stage for today and the next few years, when the rubber finally meets the road, when there will be true and dramatic and irrevocable change in the financial status for the majority of your clients needing legal services. Unprecedented inflation as well as attempts to bring that inflation crashing down, traditional workplaces imploding, employees demanding to work remotely. Yes, we’ve been building up to this and the scouts in our industry already get it. But the majority of lawyers have not seen the vista yet as they lag behind on the trail.  This year they will be forced to see the vista and they will see it from the edge of a cliff with their jaws dropped wide open.

Please spend six and a half minutes watching this video before you continue reading this blog post.  You won’t regret it. (I can’t tell you how many times I’ve watched it.)

Now let’s look at the demographic distribution of this wealth.

And then I encourage you to read  Household Income in the United States.

There are many statistics out there about falling incomes as we finish out this decade. Factor in the reality that as Baby Boomers (the largest demographic group with the greatest concentration of wealth) age and leave the workforce, their retirement income falls and so does their spending. Factor in that on average blacks and Hispanics earn approximately 60% of their white counterparts.  No, demography is not destiny but….

“The average American is increasingly going to be black, Hispanic and older. Unless [these demographic groups] earn considerably more than has been the case in previous decades, the average American’s household income is likely to fall.”

(*the Hispanic population will increase from 16 to almost 22 percent of the U.S. population by 2030 and almost 28 percent by 2050)

Let’s add one more fly to this ointment.  While the average American is increasingly going to be black, Hispanic and older, fewer than 50% of blacks and Hispanics have any type of retirement savings.

Those with the wherewithal to pay your legal fees are not spread throughout the country, either. They are concentrated in very specific geographical locales in the country and if you don’t happen to be barred in that jurisdiction or maintain a federal practice, their legal needs and dollars are of little benefit to your solo/small firm.  More obviously, it’s a buyer’s market when it comes to the uber-wealthy because they are in much shorter supply and are most likely already capably represented.

“The top ten percent of households own 76% of all wealth in the U.S., while the bottom 50% of households own just 1% of all wealth.

The majority of lawyers will be servicing the bottom 90% of this country’s population who only have a total of 24% of this country’s wealth and this 24% is spread throughout the country.  And the bottom 50% only have 1% of the wealth.  This means 50% of the country is barely scraping by.  We’re talking about people with a combined household income of roughly $20,000. They are also being forced out of their traditional housing (rental properties) and onto the streets by astronomical rents, corporations buying up properties in traditional neighborhoods to rent out at premiums.  (the number of homeless families in New York City keep climbing) It’s not because they don’t work. It’s because rentals are a hot commodity and now being rented by higher-income earners as landlords look to double the rents. At present, fifty percent of renters pay more than 30% of their income to rent which is far above the standard income-to-rent ratio.

It also means hundreds of thousands of poor Americans are paying far more for housing than they can really afford, squeezing out spending on other priorities. The Harvard study found that many low-income renters cut back most on food and transportation.

There is virtually no disposable income and certainly not for legal fees if they are already cutting back on food and transportation.

But not having money for traditional legal fees doesn’t mean they don’t have legal needs.

Let’s look at migration within the United States.  People are staying put because, in large part, they can’t afford to move.

“The COVID-19 pandemic did not stop a decline in the nation’s mover rate which in 2021 was at a new historical low over more than seven decades, according to the Current Population Survey Annual Social and Economic Supplement (CPS ASEC). The 2021 mover rate was less than half what it was in 1948.

In 2021, 8.4% of people lived in a different residence one year ago, down from 9.3% in 2020.”

Clearly, the pandemic has nothing to do with declining mobility. But let’s discuss the various factors. You can’t move for a job if no job exists. You can’t buy a house if nobody gives you a mortgage. And you can’t sell your place and take off if nobody is buying. “This triple whammy of forces made it riskier for would-be home buyers to find financing, would-be sellers to receive good value for their home and potential long-distance movers to find employment in areas where jobs were previously plentiful,” William H. Frey of the Brookings Institution wrote in a report on the falling migration rate. The aging of the population might be another factor, because older people tend to move less often than younger ones do.

This is all very troubling, too. But you shouldn’t be so quick to say, ‘I’ll target the top 20%’ or the ‘new rich’ even if you may have the opportunity to cultivate them as clients:

Made up largely of older professionals, working married couples and more educated singles, the new rich are those with household income of $250,000 or more at some point during their working lives. That puts them, if sometimes temporarily, in the top 2 percent of earners.

Even outside periods of unusual wealth, members of this group generally hover in the $100,000-plus income range, keeping them in the top 20 percent of earners.

In a country where poverty is at a record high, today’s new rich are notable for their sense of economic fragility. They’ve reached the top 2 percent, only to fall below it, in many cases. That makes them much more fiscally conservative than other Americans..

• At the same time, an increasing polarization of low-wage work and high-skill jobs has left middle-income careers depleted.

• They’re wary of any government role in closing the income gap. ~ Who’s the Biggest Barrier to Income Inequality? The ‘Top 2′ Percent.

Read the last statement, again.  ‘They’re wary of any government role in closing the income gap. Why?  Because it means more of their income will be taxed to provide these services or prices will go up with a hike in the minimum wage. A perfect example of this issue is the constant debate on whether or not to extend unemployment benefits or another round of stimulus checks.  If unemployment benefits aren’t extended, more people will be pushed out of their homes, struggle to put food on their table and the spiral downward with more people requiring some form of government assistance continues.  And since this is the group dominating the political arena due to their collective wealth, the gap between the 80% and the 20% is destined to grow in size to the width of the Grand Canyon. The middle class, which has been the typical fertile and rich feeding ground of many lawyers, will be gone.

Here is another way we all suffer because of ‘lack of lawyers’ driven by the top 20% feeling fiscally frugal and insecure.

It’s not just ordinary people, small businesses, and neighborhood institutions that can’t afford lawyers. Our local, state, and federal governments can’t. From public defenders to prosecutors to judges and beyond, spots for government lawyers are increasingly eliminated or left vacant. We the people do not have the means to hire lawyers to do our collective legal business, from prosecuting criminals to adjudicating disputes to investigating regulatory violations. This lawyer shortage poses dangers to all of us, elites included. ~ Fixing Law School, Leah Plunkett

So, you have 80 percent of the population in some sort of financial distress and those in the top 19% are educated but have so much income fluctuation they are fiscally frugal and therefore less inclined to provide programs of any type, let alone legal, to the growing poor, This also includes populating our government with the necessary legal talent required to do the work for all folks both rich and poor.  This group is also the most likely to want to handle some of their own legal work themselves.  The middle class, the sweet spot for most lawyers, is almost extinct. And the top 1% are simply inaccessible to the average private practice solo/small firm lawyer.

As our country becomes even more complex, the need for lawyers to help decipher the laws and advocate for these clients is greater than ever.  We have so much legal work which needs to be done and so few lawyers (decidedly not a glut) that are trained or have developed a business model which will allow them to work with these clients that it is systematically destroying our justice system, both civil and criminal.

With our present legal model, clients can’t afford lawyers and lawyers can’t afford to take on these clients because the traditional way of delivering legal services is no longer financially viable for 80% of the American population. Lawyers generally charge fees they believe they need to charge in order to maintain their current practice or to pay their outsized student loans.  Yet clients can’t pay lawyers $150, $300, $500+ per hour with no end in sight.  Filing fees alone can cost someone a week’s pay. Or, at least lawyers can’t reasonably expect to sustain themselves or their practices with any feeling of financial security.

What has to happen? Too many things, unfortunately.

It boils down to rethinking the practice of law in its entirety from legal education to the final legal product.  It means being so creative that your law practice may not even resemble a law practice as we’ve come to know it.  It means throwing out the playbook on what it means to practice law (not your ethics or the Rules of Professional Conduct). It also means creating a practice that is truly based on the client experience and the realities of living in a post-pandemic 21st century.  This must be driven by the economic realities of the majority of our citizens.  Let’s be presidential like John Adams and face these stubborn facts head on.

Reality Check: Part 2 coming soon

(An earlier version of this series appears at Soluno Legal)