Oregon State Bar Bulletin — JANUARY 2016
Ray Heysell is on a mission. One of his major objectives is to convince bar members that the status quo of law practice cannot continue.
“The world is changing around us, and we need to examine ourselves and decide if the way we practice law now is the best way to reach our clients’ needs and our needs,” says Heysell, who is the 2016 Oregon State Bar president. “I want part of my responsibility to be to help make bar members aware of the challenges in the world in which they’re practicing.”
He rattles off a range of related issues: technology; alternative billing methods; how attorneys advertise; how they communicate with clients; ownership of practices and what practices will look like; how lawyers can provide high-quality and faster services in a way that clients can afford and understand.
“It’s time to raise the awareness of our membership on those changes,” he says. The OSB may be able to make statutory moves that will help lawyers make the transition — “We have to decide if there are regulations to protect the public that we should be doing” — but individuals and practices must make most of the adaptations on their own. “The whole idea is to create some interest and desire to learn about ways they can improve their own practices. The Board of Governors and the Oregon State Bar can’t make the changes that are necessary. What the bar can do is make people aware of all the changes taking place around them.”
Consumers are voting with their feet when it comes to obtaining specific legal services, and attorneys are losing out to competitors who are meeting parts of those needs, he says.
“I’m of the firm belief that the future of law is going to look different than it does today. For the last hundred years, except for the computer, I’m not sure that a law office would look much different” or that practices have changed much. “Looking to the future, I think we need to talk about providing value-added legal services rather than talking about the practice of law.”
For example, document-based practices are facing “nonlawyer competitors out there providing customers services online,” says Heysell. A consumer now can write a simple will at home by going online, entering a credit card number, answering five simple questions, pressing a button, and printing out a will in two or three minutes, which might work well for much of the population, he says. Compare that with going to a lawyer, he adds: Make an appointment, go the office, fill out a number of forms, wait a few days, go back to the office for another meeting, all of which takes more time and costs more than going online.
“It’s a consumer-based society,” Heysell says. “That’s going to affect the practice of law.” Big corporations are asking attorneys to change the way they charge for services, and firms are doing that “because their clients are demanding it.” People are willing to pay attorneys for doing things that others can’t do, such as “counseling and advising regarding the intricacies of the law, and being able to do things that nobody else can provide.”
“I don’t think most lawyers understand what is taking place around us,” says Heysell. Referring to his own law firm, Hornecker Cowling in Medford, he says the younger partners are going to have different answers to problems than he did. “Their solutions will fit their world, which is a different place than the one where I spent most of my time in practice.”
The Age of Self-Navigation
One of the biggest challenges for the profession today, Heysell says, is that consumers are turning away from lawyers and seeking out alternative solutions, mainly by opting for pro se or self-representation, a trend author Jordan Furlong explores in his aptly titled new book, The Age of Consumer Self-Navigation.
Perhaps the most common example is will preparation. As Furlong notes in the book, “With a wealth of information on online will preparation options, many consumers are content to prepare their own wills, seeking counsel from a lawyer only to review final documents or advise on discrete issues.”
Furlong’s point is this is no longer an emerging issue or trend — it’s the new normal, and it is expanding into more areas of the law. He believes that as the alternative markets continue to grow, the services they provide will improve, and as more consumers succeed without the assistance of lawyers, other consumers will be encouraged to follow their lead. Furlong says lawyers must embrace new roles, acting as coaches and advisers for simpler tasks and taking the lead only on more complex matters.
Technology, Technology, Technology
Technology poses no less a challenge for the profession, President Heysell believes. What used to be a matter of simply staying current has now become a matter of staying alive. Nonlawyers are using technology to compete with traditional legal services providers at a startling pace. The ABA Journal has reported that $458 million was invested in legal services “start-up” companies in 2013.
One example is LegalZoom, the online legal services provider that along with other apps and websites, such as RocketLawyer, Docracy and Clerky, help clients solve matters ranging from parking tickets to wills to divorces — and year by year, even more.
Recently, the North Carolina State Bar reached a settlement with LegalZoom over a long-running dispute over whether the online legal service provider was giving unauthorized legal advice. In a $10.5 million antitrust lawsuit against the state bar, LegalZoom alleged the bar was engaging in “unlawful monopolization” by refusing to register its prepaid legal plans marketed to individuals and small businesses.” The North Carolina Lawyers Weekly summarized the outcome thusly: “LegalZoom’s settlement with the North Carolina State Bar might not be a harbinger of the demise of traditional legal services, but at the very least it’s showing lawyers throughout the state and country where the hands are on the clock.” (Source: http://www.bizjournals.com/triangle/news/2015/10/26/legalzoom-nc-state-bar-settle-10-5m-lawsuit.html)
These events in North Carolina, says Heysell, should remind all lawyers that technology has forever changed consumer behavior and will increasingly continue to do so, even more so for the millennial generation that is the next big consumer wave.
Challenges for Bars
The way state bars operate as organizations and with one another is also bound for big changes, according to President Heysell. As an example, one need look only as far as our neighbor to the north, Washington state, home to the nation’s first statewide program licensing a new category of legal service provider, the limited license legal technician, or LLLT.
Paula Littlewood, executive director of the Washington State Bar Association, and Stephen Crossland, a Cashmere, Wash., attorney who served as 2011-12 WSBA president and as chair the Limited License Legal Technician Board, recently spoke about misperceptions about the LTTT model in Northwest Lawyer magazine, the WSBA monthly journal:
The perception that the Washington state innovation is breaching a solid wall of lawyer domination over legal services is common, but illusory. The legal profession lost the monopoly on the delivery of legal services decades ago, when real estate agents, bankers and others began eroding the traditional view that all legal work must be performed by a licensed attorney. More recently, legal services providers such as LegalZoom and Rocket Lawyer have constituted just one element of a picture illustrating that clients are leaving lawyers in large numbers.
By authorizing licensure of LLLTs in Washington, Littlewood and Crossland said the Washington Supreme Court “stepped over the din of lawyer opposition and reminded us that as a self-regulated profession, our first obligation is to the public.”
Here in Oregon, the LLLT model is being studied by the OSB Board of Governors. Last year, former Lewis & Clark clinical law professor Terry Wright chaired a task force appointed by the board to study the matter; it’s still under consideration.
How Bars Operate Now, and How They Should in the Future
According to President Heysell, another paradigm shift for state bars will come in the form of geography and regulatory functions, namely bar exams, a move to a uniform bar exam (known as UBE) and licensing across state lines, as well as regulatory barriers such as rules against advertising (which hinder the ability to promote nontraditional services), prohibitions on multijurisdictional practice (which limit the lawyer’s potential service area) and rules against multidisciplinary practice (which limit collaboration and innovation toward a community-based model). As noted law professor and author Stephen Gillers has put it, “The traditional model for regulating lawyers — the ‘geocentric’ model — cannot survive. In fact, it has been fading for years.”
The regulation of the legal profession has seen major changes in other places, notably the United Kingdom, Heysell observes. In 2007, the U.K. Legal Services Act created a Legal Services Board to regulate legal services, which by statute has a nonlawyer majority and a nonlawyer chair. It regulates entities as well as individuals and has made many other substantial changes. Lawyer discipline is based on service and outcomes rather than lawyer conduct.
In Australia, where changes predate those in the U.K., a notable event occurred in 2007, when the law firm Slater & Gordon went public. In Canada, some provinces now regulate entities as well as individuals.
Heysell says he does not necessarily see these changes happening very soon at home, however, noting that “the U.S. has been slow to change and address such globalization pressure.”
Changes Within the Bar
Heysell will be the first to tell you that the Oregon bar (both the organization and the profession) are not immune from these trends and other changes. In fact, the new year brings two significant changes to the OSB itself, both of which excite Heysell. First, Helen Hierschbiel, formerly general counsel for the bar, takes the helm as executive director, replacing the retiring Sylvia Stevens.
“I’m enthusiastic about having the opportunity to work with Helen, who I believe will be an extremely passionate and competent leader of the Oregon State Bar,” he says. “I feel a large responsibility to her because we’re both going to be in our first year of a new job, and it’s really important to me to see her succeed. A major part of what I want to do this year is be supportive of her and help her in any way I can.” Second, the OSB is undergoing a big technological change. It is converting to up-to-date association software where all records are integrated. It’s an ongoing project, one that is coming about thanks to the hard work of a lot of people, Heysell says, and “I will be very supportive of it.”
Another of his goals for 2016 is to continue the work his two predecessors as OSB president — Rich Spier and Tom Kranovich — have done in the area of increasing access to justice. In addition to reaching more people of different races and with low incomes who need legal help, the bar needs to continue to encourage attorneys to practice in small towns and rural areas, “where there’s a terrific need for lawyers, especially as older lawyers retire,” he says.
Although Portland is the hub of the state, and the largest number of Oregon attorneys practice in the metropolitan area, “that doesn’t mean there aren’t extremely good lawyers in other parts of the state,” Heysell notes. “That’s why it’s good to periodically have a bar president who’s from a different part of the state.” At the same time, he acknowledges that serving on the Board of Governors, the House of Delegates or the numerous sections and committees that make up the bar requires a double commitment for those who live in areas far from Portland. Being “the face of the bar” is a large part of what the OSB president does: going to dinners and meeting with different organizations and local and specialty bars. The sheer distance “makes it tougher to meet those obligations. It’s hard to do all you should be doing.”
That’s one of the reasons the Board of Governors made a change beginning this year: It instituted the new position of immediate past president. That individual, in this case 2015 President Rich Spier, will serve the board and OSB an additional year, allowing that person to lend expertise gained from serving as a board member and president, but also giving the current president a backup for public appearances and certain functions that are inherent to the OSB presidency’s position, Heysell says.
Being able to pinch-hit for the president when he or she can’t make it to an appearance helps presidents who live at a distance, and it also “allows the bar to be more representative to the public,” he says. “And I want that to be an important position, so I plan on working closely with Rich this year and also Michael Levelle, president-elect.”
Conclusion
For Heysell, now in his 70th year, change has not been uncommon. But nor has it been a bad thing. While the pace of change has been rapid, and constant, forever changing the way we access information and communicate with one another, he believes the legal profession — not immune to these shifts — must vigorously respond, and do so soon. He points to the words of author Frederic Ury, author of Saving Atticus Finch, who writes: “What the legal profession is experiencing is not just change, but disruptive change. … [It] leaves us with an inescapable choice: adapt, and seize our future; or resist, and settle for the lost relevance in the world around us.”
Ray Heysell wants to help you make that choice.
ABOUT THE AUTHORS
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at tundra95877@mypacks.net. Paul Nickell is editor of the Bulletin.
© 2016 Cliff Collins and Paul Nickell