The commodification of the law

On Tuesday I spent more time that usual on Twitter. It might have had something to do with it being my birthday and feeling a bit unmotivated to work all afternoon. This is one of the tweets that piqued my interest.

Mike Whelan ‏@mikewhelanjr  21h21 hours ago

I encourage you to ponder on this from #ClioCloud9 - "You are a media company first. Only after that do you sell legal product." Huge impact

It might be more appropriate for me to say that it disturbed me.

I don't care how cutting edge attorneys want to be. I don't care how much the whiz kids say the practice of law has changed. But if this message is true, then we are nothing but soap salesmen. And that's troubling. Very troubling.

The last time I checked, the basis of our profession is helping those who are unable to help themselves out of a problem. Our duty is to provide advice to our clients to assist them in deciding the best way to resolve their issue. For those of us who practice criminal law, our duty is elevated as we hold not only our client's future in our hands, but the future of his family as well.

Those clients don't give a fuck about your social media presence. They don't give a fuck about the content you pump out through various channels. They only care about one thing - can you get their ass out of the fire.

That's not the same as someone deciding what brand of soap, or soda or paper towels to buy.

If you accept what this ClioCloud conference (or whatever the hell it was) is telling you, then you are turning the practice of law into a commodity. And, if you're turning the practice into a commodity you are selling your clients down the river.

Commodities are fungible goods. They are interchangeable. They are produced for mass consumption.

The practice of law is not for mass consumption. Every client is different. Every case is different. Your duty as a lawyer is to analyze the case, examine the law and advise your client. Your duty isn't to pump out more content. Your duty is not to market the hell out of your firm. Your duty isn't to fluff up your resume and pump up your qualifications to get the next check.

And just what the fuck is legal "product?" Representation is not a product. Representation is a relationship.

Beer is a product. Toilet paper is a product. Adult diapers are a product.

Do you really want to debase yourself, and your profession, to the degree of equating the service you provide with adult diapers?

You are a lawyer first. You must ground yourself in the basics of your craft. If you want to be a trial attorney you need to study motion practice, jury selection, argument and cross-examination. If you want to be good at it you will continue to study as long as you practice (hence the term "practice"). When you get really good you will share your skills and insights with other attorneys in order to raise the bar for everyone.

If you subscribe to the bullshit in that tweet, then why did you waste your money going to law school? You could have save yourself a lot of headache, a lot of hassle and a lot of money by going straight into marketing.

I understand part of what's going on here. For too many years law schools have been pumping out class after class of newbie lawyers despite market saturation. They did it because their income stream was guaranteed by the government. The glut of new attorneys has driven down wages and increased competition for clients (tort reform hasn't helped matters). And into this void have come the marketers selling promises they can't keep.

And if we continue down this path, as my colleague Scott Greenfied would say, soon we'll all be walking down the sidewalk wearing hotpants.

Sticking it to the solos

State Representative Burt Solomons (R-Carrollton) has authored a bill (HB1072) that would exempt attorneys employed by the State of Texas from having to pay "membership" fees to the State Bar of Texas. The bill is being promoted as a cost saver for the state.

The bill has passed out of the Judiciary & Civil Jurisprudence Committee this past week.

According to the fiscal analysis, there are 1522 full-time attorneys employed by the State of Texas. Each of those attorneys pays annual dues of $235 to the State Bar for the privilege of being an attorney in the Lone Star State. The passage of the bill will result in the State Bar's losing $357,670 a year for the next five years (assuming that the number of attorneys employed by the state remains constant).

Since the State of Texas pays the annual dues for the attorneys it employs, the bill would save the state $357,670.

The Comptroller of Public Accounts, however, says there are 2,778 attorneys employed by the State so the actual loss to the State Bar would be $652,830 a year.

The problem is the State Bar is going to want to recover that money from someone. And who would that someone be? Every attorney in private practice - or working for local governmental entities. Since firms tend to pay the membership dues of the attorneys working for them, the people who will be hurt the most are solo practitioners who have no one else to pay their bills.