Musings while on the hustings for the MBA

Issue December 2012 By Robert L. Holloway Jr.

I had not been in Woodstock, Vermont, for a few years, but spent a few days there recently as your Massachusetts Bar Association representative at the New England Bar Association meeting at the Woodstock Inn. When Hurricane Irene hit Vermont with a vengeance last year, much of the Woodstock Inn was under water. I am happy to report that the inn seems fully recovered, with its amiable staff very accommodating as usual. With the Vermont Bar Association as the host, there were many Vermont lawyers and judges in attendance, all very welcoming to us as interlopers from Massachusetts.

Reports from the presidents of the other New England state bar associations were comforting, as I was struck by how similar the issues are that we all face. For example, chief justices from several of the states discussed issues surrounding pro se litigants. As we have observed in Massachusetts, these problems are at least twofold: litigants who cannot afford to hire lawyers and those who have chosen not to hire lawyers. As for the former, pro bono activities and attempts to get more funding for legal services for the poor are underway, but it remains to be seen when, if anytime in the near future, we truly can meet the legal needs of the poor. As for the people who have chosen not to hire lawyers, that may present a more complicated challenge for our profession. Anecdotes from some of the chief justices included one regarding a divorce litigant, who, when her case was called after she had heard the sitting judge explain to a pro se litigant ahead of her the procedure and substance involved, literally fired her lawyer in front of the judge, announcing she did not need the lawyer's services. That litigant's decision illustrates the fundamental problem of the value and pricing of lawyers' services. To the extent that some in our "legal marketplace" who can afford legal services are choosing not to hire lawyers, that says, implicitly if not explicitly, that some lawyer services are deemed to be too expensive in terms of a cost-benefit analysis.

Later at the NEBA conference, a legal consultant talked about certain legal services being commodities as compared with legal services he described as "value" legal services. We all can debate what, if any, legal services should be described as commodities, but the marketplace already is viewing and thus defining certain kinds of legal services as essentially routine and not really requiring a lawyer. We all know that there are a number of well advertised services that have cropped up, offering these legal "commodities" at prices with which ordinary practitioners likely cannot compete. What we see happening in many areas of law practice is downward pressure on fees, as a result of market forces. We cannot ignore this phenomenon. It is one of the elephants standing in the corner of the courtroom.

By contrast, we see so-called "value" legal services being less sensitive to price. Again, borrowing from the consultant, why that is so relates to what clients value most in their relationship with their lawyers: trust and confidence in the lawyer, the lawyer's opinion, and the lawyer's ongoing commitment to solving the client's problems. Interestingly, in the arena of "value" legal services, clients seem to define and most value the relationship with the lawyer in terms of the trust and confidence, taking competency and expertise as a given. If we examine our own practices and our relationships with our clients, we all can see, I think, considerable validity in the foregoing. That said, what do we do about the changes in the marketplace?

Those of us who regularly represent business clients routinely discuss with the client and jointly engage with the client in cost-benefit analysis regarding the legal problem or task at hand. Business clients readily place dollar values on problems and evaluate the cost of legal services accordingly. While the dollar value attached to a particular problem may not always be precise, the exercise itself underscores the importance of understanding the value of the legal services to the client. This exercise is a given in the business sector. While it may be difficult to put a price tag on certain personal legal matters -- for example, custody or visitation issues -- cost-benefit analysis of legal services is imperative. It may be that certain traditional ways of solving some kinds of legal problems are simply too expensive in relation to the perceived or actual value of those services.

I suggest there needs to be examination and reconsideration of the way we provide legal services. I think that is a useful exercise across the board in our profession. In some areas the marketplace already has provided for that examination and reconsideration. However, I believe this examination and reconsideration is best undertaken within our profession. If we do not do so, the marketplace simply will do so for us.

Regarding one of the legal arenas affected by some of these market forces, I also had the pleasure of attending the MBA's Family Law Conference in Lenox. Judges and practitioners together addressed changes in the family law arena, along with the need to continue to find ways to process cases more efficiently and productively, even with reduced resources. This kind of joint effort addressing problems in our profession is exactly the type of reconsideration and evaluation that needs to be ongoing in most, if not all, areas of our profession.

I was energized and heartened by the thoughtful comments I heard in Woodstock and Lenox. As a result, I suggest we all have good reason to be optimistic regarding our collective efforts to improve the delivery of legal services and justice for everyone.