Suggested Talking Points Graying of Bar for 10-24-14 Draft 10-13-14 The Graying of the Bar is often referenced as a code phrase for access to justice challenges facing our profession, but this graying isn t necessarily a bad thing. Lets look at some statistics. The Maine Board of Overseers of the Bar reports that in 2013, 44.2 percent of attorneys admitted to practice in Maine are age 55 or older, and 15.8 percent are over age 65, while only 12.4 percent are under age 35. By contrast, in 1980 the ABA statistics indicate that 25 percent of lawyers were age 55 or older, while 36 percent were age 34 or younger, and 51 percent, a majority, were age 39 or younger. 1 Some positives: 1. Today, like the rest of society, lawyers are living longer; remaining intellectually vibrant and professionally engaged later in life. If 75 is the new 65 or 60 then it s no surprise that more gray lawyers are continuing active practice in their 60s, 70s, and even 80s. We need these older committed professionals, just like we need recent law graduates, to meet the legal needs of people in society navigating an increasingly complex world too often without the guidance that a lawyer can provide. 2. As our profession has become more diverse, we have eliminated many of the barriers mandatory retirement ages and the like that caused some of our best lawyers and judges to leave their positions when their capacity to contribute to society was at its peak due to the combination of their experience and intellectual acuity. 3. Many in our profession are deeply committed to their work, be it legal services for the disadvantaged, helping businesses operate or expand, judging, 1 Maine Board of Overseers of the Bar, 2013 Annual Report (2014), 26. The American Bar Association s statistical report on Lawyer Demographics 2013 (downloaded from the ABA web site 4/19/14) reports that in 2005, the last year for which the ABA has comprehensive statistics, 34 percent of lawyers were age 55 or older, while 13 percent were age 34 or younger, and 26 percent were age 39 or younger. By contrast, in 1980 the ABA statistics indicate that 25 percent of lawyers were age 55 or older, while 36 percent were age 34 or younger, and 51 percent, a majority, were age 39 or younger.
prosecuting or defending criminal cases, enabling non-profit entities fill their role in society, or other services essential to maintaining our free, democratic society and its private enterprise economy. Today this commitment causes many more lawyers to remain professionally active and benefit us all rather than ride a golf cart off into the sunset of retirement. So the graying of the profession, or whatever your color choice if you have hair to color, isn t all bad. The graying discussion really seems to be about problems other than hair color: Challenges for the Profession Today 1. How can we re-engage with serving the great share of our middle-income population who 40 or 50 years ago regularly relied on lawyers services but today to their detriment - do not because of misperceptions about cost, complication, and, perhaps most importantly, lack of personal familiarity with lawyers in their community. Some Stats: While many recent law graduates are unemployed or not employed in their chosen profession, and many low and middle income individuals need greater access to legal services, the percentages of legal resources devoted to individual people has fallen over the past half century as legal resources shift toward work on behalf of commercial entities. 2 2 Ann Juergens, Legal Costs in Minnesota: Valuing Small Firm and Solo Law Practice: Models for Expanding Service to Middle-Income Clients, 39 Wm. Mitchell L. Rev. 80, 81-82 (2012) (citing George Baker & Rachel Parkin, The Changing Structure of the Legal Services Industry and the Careers of Lawyers, 84 N.C. L. Rev. 1635, 1635 (2006) (using the Martindale-Hubbell Law Directory to document a shift from mid-sized to large, multi-office firms); Gillian K. Hadfield, The Price of Law: How Much the Market for Lawyers Distorts the Justice System, 98 Mich. L. Rev. 953, 998 (2000) (using an economic analysis to explain that commercial interests have the resources to outbid individuals for access to legal services, with the result that individuals are priced out of the market and the system has become distorted so that it primarily serves economic interests and does not also fulfill justice interests). These studies, published before the start of the recession, may explain trends in allocation and escalation of cost of legal services from times when the profession had relatively full employment, driving up fees and depressing demand for legal services among a middle-income individuals whose earnings, adjusted for inflation, have remained relatively static.
2. How can we connect recent law graduates with lawyers phasing down their work or retiring so that the legal services the retiring lawyers have provided can continue, particularly in the many communities we have here in New England outside the big cities. 3. How can we utilize modern technology to improve the economics and efficiency of law practice and judicial administration to continue to provide professional service at a cost the public and the taxpayer can afford, while assuring a professionally and financially rewarding career to those providing legal services. 4. And what, if anything, can we, as lawyers or public officials, do to close the gap between the cost and debt many find necessary to obtain a legal education today, and the incomes lawyers starting out are likely to earn serving any but the most elite or well financed clients. 3 Some Stats: The era of relatively full employment for law graduates ended in the early 2000s. With the recession in 2008 and 2009, 60,000 attorney jobs disappeared and approximately 9 percent of associates at law firms were laid off. 4 The lawyer employment picture may be turning around, but slowly. Approximately 15,000 of the positions lost in 2008 2009 have returned, and the American Bar Association reported in April 2014 that 57 percent of 2013 law school graduates had landed fulltime jobs that required bar admission, up from 56.2 percent for 2012 law school graduates reported in April 2013. 5 3 Recent studies place the current average law student debt load at graduation at $90,000 to $100,000. Gene R. Nichol, Rankings, Economic Challenge, and the Future of Legal Education, 61 Journal of Legal Education, 345, 348 n. 9 (February 2012). For 2011 law school graduates, another study indicates, that the average debt burden was $75,500 for public law school graduates and $125,000 for private law school graduates, and that 36.2 percent of law school graduates had six-figure debt. Amanda Harmon Cooley, Promissory Education: Reforming the Federal Student Loan Counselling Process to Promote Informed Access and to Reduce Student Debt Burdens, 46 Conn. L. Rev. 119, 140-41 (Nov. 2013). 4 Karen Sloan, Legal Jobs Picture: We re Note Going Back to 2006, (National Law Journal, April 10, 2014 (Reporting speech by executive director of National Association of Law Placement). (NLJ website visited 4/14/14). 5 Id.
Ideas for Bar Associations and Courts, what is being done, what can be done. 1. Training/CLE Programs In Maine, we in the judiciary are working with the Maine State Bar Association to support programs providing practical advice to address issues at both ends of the experience scale. Every year, the MSBA, with participation of several of our judges, offers a Bridging the Gap program for new members of the Maine Bar. This two day program in the late Fall offers sessions on issues such as (i) ethics for lawyers entering the profession; (ii) organization, administration and marketing of solo and small firm practices; (iii) participation in ADR and mediation; (iv) tips from judges for successful court appearances; and (iv) educational debt and profession financing. The program provides significant opportunities for new lawyers to network with their peers and with experienced lawyers and judges. The second day includes a training session that will qualify new lawyers for court appointments in, depending on the year, either child protective or criminal misdemeanor cases. Lawyers who may not be seeking court appointed work are offered alternative practical training in specific practice areas like bankruptcy or estate planning. This year the MSBA and our Board of Overseers of the Bar is offering a CLE program on Succession Planning. This free program (scheduled December 11) will give lawyers guidance on (i) ethical obligations of assuring that, for client protection, there is a succession plan; (ii) practicalities, including financing, of selling or phasing out of practice; (iii) bringing in a new lawyer to take over the practice; (iv) client relations in transition, and other topics of interest to lawyers seeking to enter and lawyers seeking to leave a practice. (Copy of program is attached.). 2. Consideration of Change in Business Models Much discussion about improving the availability of legal services to underserved populations has focused on ways to promote more pro bono service by lawyers who themselves may be struggling economically compared to a few years ago, or to change court processes or increase public or private subsidies to improve
legal services offered by legal services groups to low-income populations. 6 By comparison, there has been relatively little discussion of reviewing and reforming the business models of legal training, law practice and litigation with an eye to adjusting legal and judicial services to provide broader service to the public, by individual lawyers at a reasonable cost. As one state study has observed: While the profession focuses on ways to meet the critical legal needs of low-income citizens, the needs of the middle group are largely left for the market to fill. The painful fact is that the market has failed to distribute lawyer services to a majority of Americans with legal needs. Ironically, the legal needs of middle-income Americans have risen with the economic crisis even as unemployment among new lawyers has increased. A large supply of trained lawyers without work theoretically should translate into lower costs and more legal needs being met. Yet the cost of legal services has continued to rise. Significant unmet need coupled with the high cost of services and numerous underemployed new lawyers are allied problems that the profession can ill afford to ignore. The challenge is to use this tempest to rethink the profession's approach to solving legal problems, to lower the cost of service and expand the distribution of justice. Ann Juergens, Legal Costs in Minnesota: Valuing Small Firm and Solo Law Practice: Models for Expanding Service to Middle-Income Clients, 39 Wm. Mitchell L. Rev. 80, 83-84 (2012) (citations omitted). Business model changes for law practice and the courts can have the potential to encourage middle-income individuals, families and small businesses to return to seeking legal services from private lawyers, as they did for generations before the cost and complication escalations of the past thirty or forty years. The digital information age provides far greater access to legal information, research, forms, and ideas competent and incompetent about identifying and addressing legal problems. Those who perceive that they cannot afford to seek a lawyer s help may be more likely to look to such alternative resources to perceive and respond to the issues they face. But available, reasonable cost lawyer assistance can lead to a more satisfying solution to many problems for the individual and for society. 6 See [New York] Chief Judge Jonathan Lippman, New York s Template to Address the Crisis in Civil Legal Services, 7 Harvard Law & Policy Rev. 13, 19-29 (Winter 2013).
As the Minnesota study notes: As individuals and businesses gain more access to legal information than they have ever had in the past - via websites run by the courts, by government agencies, by legal aid, bar associations, non-profits, and businesses - the part of lawyers' work that requires human judgment, deep analysis, and careful planning becomes more valuable. On the other hand, easily retrievable legal information means that lawyers will no longer be able to rely on manufactured complexity to support their practices. Instead they will have to depend upon the quality of their relationships and on their ability to help clients with decisions that cannot be managed by computers and non-lawyers. Juergens, Legal Costs in Minnesota, 39 Wm. Mitchell L. Rev. at 111-112. The manufactured complexity comment is a particularly telling observation that could be applied to many developments in law practice and judicial process business models in the past half century. 3. Use of Electronic and Digital Systems Specific business model changes to explore as we move toward digital systems and away from paper include use of electronic and social media for court filings, records retention, and interaction with the bar and the public, including, as examples of opportunities to explore: Electronic arraignments and pretrial process in minor criminal cases; Electronic appearances and preliminary proceedings in divorce and parental rights matters; Promotion of greater remote and virtual court access, appearances, and participation from lawyers offices; Development of electronic guides and interactive forms to facilitate individuals, preferably with a lawyer s assistance to make decisions on complex issues, in filing, processing, and participating in common civil actions. 4. Fee Transparency and Predictability. Today, one of the biggest barriers to middle income individuals and small businesses seeking assistance from lawyers is the perception wrong that lawyers fees are unaffordable and that once a lawyer is hired, fees may escalate
out of control and beyond the client s ability to pay. Lawyers should be encouraged to return to publicizing per task fee schedules that have been discouraged since the 1970s. Fee transparency will promote better public understanding that fees for services that public regularly needs are reasonable and affordable. Published fees might be for initial consultation and one hour of advice (limited representation); file opening and two hours work; with flat fees for certain services which would be provided with limited representation agreements, including representation in the specified types of simple civil actions. 5. Lawyers in Libraries. In the past couple years we in Maine have begun implementation of what we call a Lawyers in Libraries program. Through this program, lawyers in local communities may improve public knowledge of their practice and skills by being available on a regular basis, for example quarterly or monthly, in a library or other public place, to answer questions, give guidance on simple matters, and recommend where those needing more help and guidance might turn for assistance. Our initial experimentation with this program on or around Law Day shows promise. Such a program can have the effect of publicizing the availability or local lawyers to provide help on problems in the local community at a reasonable cost - something that appears not to be sensed by many members of the public today. 6. Improved Financial and Resource Support The MSBA and the University of Maine School of Law are presently engaged in efforts to connect new lawyers with lawyers considering winding down their practices or retiring. Both the Bar Association and the Law School are also supporting mentoring and education programs directed to law students and lawyers considering establishing solo or small firm practices in local communities. Those efforts have had some success and such efforts should be continued and encouraged. However, other direct incentives may help encourage new lawyers to locate in underserved communities where lawyers have retired or may soon be retiring. Among the incentives that might be considered are: A. Modifying current student loan forgiveness programs to extend to new lawyers who locate in underserved communities and derive a significant percentage of their income from serving middle income individuals and small businesses in those communities. Today the federal government helps support such loan forgiveness programs for physicians and veterinarians who practice in
underserved communities. 7 lawyers. We should advocate extending such programs to B. Providing resource support for overhead costs incident to locating and starting a small practice including residence, office, utility costs and perhaps health insurance. Similar support is available in some places to doctors and teachers locating in smaller, financially stressed communities. Thus, providing overhead startup support for legal professionals in underserved communities would not be a totally new idea. A program supported by IOLTA funds might be a source for this startup support. C. Promoting change in the legal education model to, perhaps, two years of law school for those planning legal careers serving individuals, small businesses, government agencies, legal services agencies, health care providers, and other clients encountered in state and local practices, with a third year devoted to a low cost or no cost supervised clinical training program that might even offer modest payment for some of the aspiring lawyer s services. Persons planning careers in legal academia, practices referred to as big law, and international law could take the third year in law school, as is present practice. Reducing law school by one academic year could avoid average annual costs of $40,000 for in state students attending a public law school, $52,000 for out of state students attending a public law school, and $58,000 for students attending a private law school. 8 Maine currently allows admission to the bar, upon passing the bar exam, after two years of law school and a year of clinical or in office practice, though no recent applicants have sought to utilize this option. 7 See 36 M.R.S. 5219-KK (2014) (authorizing tax credits totaling up to $60,000 over five years to reimburse tuition loans for a limited number of physicians and certain other medical care professionals who practice primary care medicine in underserved areas); Bill Trotter, Farmers, large animal veterinarians struggling with high costs, Bangor Daily News, May 30, 2014 (website visited 05-31-14) (referencing federal and state tuition loan reimbursement programs to support large animal veterinarians serving underserved areas that a veterinarian states will pay her $165,000 veterinary school debt within five years after her graduation). 8 Amanda Harmon Cooley, Promissory Education: Reforming the Federal Student Loan Counselling Process to Promote Informed Access and to Reduce Student Debt Burdens, 46 Conn. L. Rev. 119, 135 (Nov. 2013).