March 6, 2015

The Future of Law (Part Eight): Strange Bedfellows—Commercial Law and Legal Ethics

“Misery makes strange bedfellows.”
Shakespeare, The Tempest

rhodesThis week’s first prediction:

  • The law of commercial transactions will take on a bitcoin dynamic.

This is from the Bitcoin website:

Bitcoin uses peer-to-peer technology to operate with no central authority or banks; managing transactions and the issuing of bitcoins is carried out collectively by the network. Bitcoin is open-source; its design is public, nobody owns or controls Bitcoin and everyone can take part.

That’s pure democratization, folks! The key is “peer-to-peer”: if you and I agree that a business or network or other medium of exchange has value, then it does, and conventional metrics be damned. Think Amazon and Facebook: both immensely valuable; neither shows a profit.

Peer-to-peer is what’s driving the new sharing economy. Consider this from a recent article in Time Magazine:

The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people — significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common: they worked at eBay and, in bits and pieces, recreated that company’s trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.

(For more on this topic, see this week’s stories in Forbes and USA Today.)

  • Peer-to-peer will alter the key commercial concepts of valuation and contract consideration.
  • Commercial trust — deciding who you’re going to do business with — and related issues such as fairness and fraud will be built increasingly on the ratings you get from the people you do business with.

The sharing industry has more than a toehold on the economy: a graphic in the Time article shows that it has already raised billions of dollars in startup capital. It will only get bigger, despite the fact that…

It’s unclear if most of this is legal. The disrupters are being taken on by governments and the entrenched institutions they are challenging. . . . [T]here are thousands of companies — in areas such as food, education, and finance — that promise to turn nearly every aspect of our lives into contested ground, poking holes in the social contract if need be. After transforming or destroying publishing, television and music, technology has come after the service sector.

The legal profession is of course busy representing the “governments and entrenched institutions” trying to tax, license, and otherwise bring the sharing economy into conventional legal boundaries. Lawyers will win some and lose some, but in time…

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • As a result, peer-to-peer review of commercial transactions will extend to the parties’ legal counsel.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 — the duty to report unethical behavior among our peers — has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

Strange bedfellows, indeed.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. For those who prefer to do their reading in hard copy, the collection will soon be available in that format (details to follow).

The Future of Law (Part Seven): The Law Gets Faster, Goes Micro, and Eats at a Communal Table

rhodesHarvard professor Clayton M. Christensen coined the phrase disruptive innovation in the late ’90s.

The theory of disruptive innovation . . . explains the phenomenon by which an innovation transforms an existing market or sector by introducing simplicity, convenience, accessibility, and affordability where complication and high cost are the status quo. Initially, a disruptive innovation is formed in a niche market that may appear unattractive or inconsequential to industry incumbents, but eventually the new product or idea completely redefines the industry.

Until recently, the legal profession and the law remained mostly aloof from the impact of innovative disruption, moving instead at an analog pace of change driven by reasoned discourse and scholarly input. Think of the usual pace of legislation, appellate review, uniform laws, and legal restatements. But life in the slow lane is ending.

  • The analog pace of changes in the law is already breaking down. Legal practice developments are already moving at the digital pace of disruptive innovation. Changes to the law itself will soon follow suit.

Disruptive innovation doesn’t wait for reasoned discourse. It moves fast and impulsively, riding on trends fueled by democratized access to information. Disruptive change in the law will create new modes of change that simply will not wait for the historical pace of precedent and consensus.

  • These law changes will first follow the new practice models serving legal niche markets, where “simplicity, convenience, accessibility, and affordability” are essential. (i.e., they will be “micro-law” in nature. We looked at the micro trend in this post last summer.)
  • This new way of creating and changing applicable law will go mostly unnoticed to “industry incumbents” at first, because the changes will be narrowly focused on the particular needs of emerging niche markets, which will make them “unattractive or inconsequential.”
  • In time, however, this way of creating and changing the law will gain wider usage and impact.

Other practice innovations already in place have disruptive potential as well. Consider, for example, ediscovery and due diligence. These practices began as digital versions of their former analog practices, and mostly retain that character, but possibly not for long.

  • These digital innovations could easily morph from their case-specific beginnings into more widely accessible databases of searchable information.
  • If so, they will change the overall fact-specific context of dispute resolution and transactional law.
  • And if they do that, new standards of pleading and disclosure will arise, and will require new rules and procedures to guide their use.

And finally:

  • This new way of changing the law will likely arise from an informal collaborative process which will further — by a quantum leap — the goal of bringing more “simplicity, convenience, accessibility, and affordability” to dispute resolution and commercial transactions.

In this regard, think of disruptive innovation as a sort of communal table process for changing the law. You’ve noticed the community tables springing up in restaurant and coffee shops. They’re more than a new style of seating arrangements: they’re changing the dining/drinking industry and the dining out experience. (For a wonderful analysis, see Alone Together: The Return of Communal Restaurant Tables.)

These developments will create some fascinating new bedfellows. Next time we’ll look at one such pair: commercial law and legal ethics.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. For those who prefer to do their reading in hard copy, the collection will soon be available in that format (details to follow).

The Future of Law (Part Six): What’s Trending?

rhodesWe’re looking at trends in the law, and wondering out loud where they might be going. Since we’ve been talking about the democratization of knowledge, we’ll let Wikipedia tell us about trend analysis:

Trend Analysis is the practice of collecting information and attempting to spot a pattern, or trend, in the information. In some fields of study, the term “trend analysis” has more formally defined meanings.

The anonymous article writers (they’re from the U.K., I’d guess, because they spell “behaviour” with a “u”) tell us that some kinds of trend spotting are all about the numbers:

In project management trend analysis is a mathematical technique that uses historical results to predict future outcome. This is achieved by tracking variances in cost and schedule performance. In this context, it is a project management quality control tool.

In statistics, trend analysis often refers to techniques for extracting an underlying pattern of behaviour in a time series which would otherwise be partly or nearly completely hidden by noise. A simple description of these techniques is trend estimation, which can be undertaken within a formal regression analysis.

We learned regression analysis in the MBA program. I used it for years in my practice. It told me our revenues were somewhat seasonal. I might have figured that out some other way…

And then there’s Investopedia’s definition of trend analysis, which is a cousin to project management. Both try to predict the future by what happened in the past — driving forward by looking in the rearview mirror. Good luck with that.

Finally, Wikipedia sort of gives up and says

Today, trend analysis often refers to the science of studying changes in social patterns, including fashion, technology and consumer behavior.

That’s more like what we’re doing in this series, although I wouldn’t call it “science.” Art on a good day; guesswork any other.

Finally, here’s a trend analysis term I’d never heard until Wikipedia told me about it: coolhunting. That sounds like those messages I get online: See what’s trending on Facebook! See what’s trending on Twitter! Usually it’s some celebrity’s off-camera or off-field drama. I always wonder if I’m supposed to care.

The point is, someone cares about all of this. And if that someone cares enough to jump into a trend, and enough other people do the same, then we’ll all need to care, because the trend just moved from outliers to early adopters to mainstream. At that point, we’re all going along for the ride, like it or not.

Trends aren’t destinations, they’re movements of human energy. As soon as people start engaging with the trend, they affect where it’s going — shaping, redirecting, resisting, thwarting, or bulldozing it through. Trends are collective; we’re not the only ones steering the ship. If we jump onboard, there’s no assurance we’ll end up anywhere we think.

In the coming installments of this series, we’ll continue to look at changes in “social patterns, including fashion, technology and consumer behavior” (well, not fashion) that are affecting the law, and make predictions about them. Think of these not as possible outcomes, but as energies. Some will accelerate in size, speed, and impact — those we’ll need to reckon with. Others will fade away — like all that momentary coolness on Facebook and Twitter. Along the way, some of us might want to dive in and see if we can shape some of these trends the way we’d like.

Kind of like the rainstorm game I used to play as a kid, damming up water pouring along the gutter.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part Five): The Democratization of the Law (Cont’d.)

rhodesWe’ve looked at the ethos of the legal profession before. Here’s that definition again:

Ethos: the characteristic spirit of a culture, era, or community
as manifested in its beliefs and aspirations.

Democratization has its own ethos. Its characteristic spirit is a popularized impatience, a marketplace riot in which “power to the people” pushes aside the traditional gatekeepers (lawyers) of specialized knowledge (the law). We looked last time at some of the beliefs and aspirations undergirding the democratization of knowledge, and the kinds of philosophical debate they generate.

It’s one thing when lawyers take the law in directions we didn’t anticipate (like what happened when RICO and HIPAA drifted from their originally intended moorings); it’s quite another when consumers and non-lawyers do that. (HIPAA’s original intent: “to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs.” RICO’s intent: to provide for criminal and civil redress “for acts performed as part of an ongoing criminal organization.”)

The law might have seen it coming. Democratization often creates high leverage events that seem sudden — e.g., the Arab Spring — but there’s usually a backstory of chronic popular discontent stonewalled by those in power, until one day enough is enough and the trend busts through.

In the case of law, a significant component of the backstory was chronic consumer dissatisfaction. For example, clients have been unhappy with hourly billing (and other fee practices) for a long time. (Billable hours are no picnic for lawyers, either.) Or consider the well-documented client dissatisfaction with the litigation process: e.g., this 2002 article about “just how pernicious litigation is for the average non-repeat player,” or this 2008 article about the problems judges face when litigants represent themselves. The latter notes that “These trends present real and significant challenges to a legal system designed for representation by trained advocates.” That pretty well sums up democratization’s impact on the law.

This week’s prediction: the legal democratization megatrend will spawn several powerful derivative trends that will erode the ethos of the law and the legal profession, in favor of a push to outcomes unencumbered by traditional legal process. For example, we can expect:

  • A break from reliance on the sacrosanct cornerstone of precedential appellate authority in legal decision-making.
  • Non-traditional practitioners executing transactions without what we would consider adequate contractual consideration, and resolving disputes without regard to historical evidentiary strictures (who cares about — or for that matter understands — hearsay anyway?).
  • Along the way, we’ll witness the continued diminution of the economic value of the knowledge base and skillset traditionally learned in law school and developed in the early years of law practice.

There will be other derivative trends as well; each will have gentler and more extreme versions. We’ll look at some of those in coming posts. Meanwhile, the debate about who can practice law better — the experts, or the empowered people — will rage on, mostly in vain. Democratization is a juggernaut that already can’t be stopped, and — in the law anyway — it doesn’t even have a full head of steam yet.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part Four): The Democratization of the Law

rhodesWe looked last time at the globalization megatrend and its impact on the law. Democratization is another megatrend having similar impact. It’s not just about flash political revolutions, it applies in other spheres as well, particularly technology, information, and — of particular interest to lawyers — knowledge.

The legal profession, like others, has long enjoyed protected status as a commercial monopoly characterized by the specialized knowledge and skill (e.g., professional judgment and the ability to “think like a lawyer”) of its members. Not just anybody can practice law or do so correctly — that’s been the creed, and the non-lawyer public has agreed (they don’t always like lawyers, but they like their lawyer).

Democratization is changing that. The “lawyers know best” ethos has eroded. Non-lawyer legal service practitioners and their customers have stormed the professional citadel, gobbling up free access to legal knowledge and putting it to work for themselves. Lawyers can argue all day that they practice law better than non-lawyers, but we’re talking to ourselves. Knowledge is power, and democratization is on a mission to give that power to the people.

The specialized knowledge that was formerly the sole province of the profession must be transformed under this non-professional handling. To recognize that this is already happening and predict we’ll see more of it is to come late to the party. So I’ll make the only prediction left to make: not only is the democratization of the law going to continue, but we ain’t seen nothin’ yet.

Anything that starts with “Wiki” is at the forefront of the democratization of knowledge. The creation of a common people’s knowledge base is empowering, and there’s been a lot of euphoria over full and free access to information and the creation of a citizen-based common body of knowledge. But second thoughts about all this are surfacing from within the revolution’s highest ranks: Larry Sanger, one of the Wikipedia founders, left to start a competitor he’s calling Citizendium. Why? To provide an expanded role for experts in the determination of what knowledge is worth knowing.

Sanger’s Citizendium manifesto is entitled Who Says We Know: On the New Politics of Knowledge. We’ll let him speak his piece at some length here, since his framing of the issues is spot on for the legal profession:

So today, if you want to find out what “everybody knows,” you aren’t limited to looking at what The New York Times and Encyclopedia Britannica are taking for granted. You can turn to online sources that reflect a far broader spectrum of opinion than that of the aforementioned “small, elite group of professionals.” Professionals are no longer needed for the bare purpose of the mass distribution of information and the shaping of opinion. The hegemony of the professional in determining our background knowledge is disappearing—a deeply profound truth that not everyone has fully absorbed.

The votaries of Web 2.0, and especially the devout defenders of Wikipedia, know this truth very well indeed. In their view, Wikipedia represents the democratization of knowledge itself, on a global scale, something possible for the first time in human history. Wikipedia allows everyone equal authority in stating what is known about any given topic. Their new politics of knowledge is deeply, passionately egalitarian.

Today’s Establishment is nervous about Web 2.0 and Establishment-bashers love it, and for the same reason: its egalitarianism about knowledge means that, with the chorus (or cacophony) of voices out there, there is so much dissent, about everything, that there is a lot less of what “we all know.” Insofar as the unity of our culture depends on a large body of background knowledge, handing a megaphone to everyone has the effect of fracturing our culture.

As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for reliable information suffers. With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life’s work to know stuff. This, I maintain, is not a positive development; but it is also not a necessary one. We can imagine a Web 2.0 with experts. We can imagine an Internet that is still egalitarian, but which is more open and welcoming to specialists. The new politics of knowledge that I advocate would place experts at the head of the table, but—unlike the old order—gives the general public a place at the table as well.

In other words, as cool as the unrestrained democratization of knowledge may be, we may still need experts and professionals after all. At least one Wikipedia founder thinks so.

It’s a fascinating debate, but now that we’ve given it an airing, we’ll turn to further predictions about how the democratization of the law will change it in ways “not everyone has fully absorbed” or — especially for many in the profession — will absorb any time soon.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part Three): The Globalization of the Law

rhodesIn his book Between Two Ages: The 21st Century and the Crisis of Meaning, futurist Van Wishard introduces globalization this way:

Sir Fred Holye was an eminent British mathematician and astronomer. He made a remark in the 1940’s that was prophetic: “Once a photograph of Earth, taken from the outside, is available, a new idea as powerful as any in history will be let loose.” That photograph was taken in 1969 from the moon, and it provided a visual symbol of globalization for humanity. Globalization [is] the long-term effort to integrate the global dimensions of life into each nation’s economics, politics and culture. In my judgment, this is the most ambitious collective experiment in history.

Thus far, most of the globalization action has been along cultural and economic lines, while the law has remained mostly aloof. That will end: the law will become increasingly globalized.

Globalization is a megatrend, which one source defines as follows:

Mega trends are global, sustained and macro economic forces of development that impact business, economy, society, cultures and personal lives thereby defining our future world and its increasing pace of change.

Megatrends cut a wide swath; lesser trends derive from them and follow in their wake. Legal trends deriving from the megatrend of globalization will realign law beyond the federal and state distinctions we’re used to, adding new regional and supranational lines as in the European Union. Along the way, globalization will substantially reshape several practice areas, beginning with commercial, intellectual property, immigration, environment, natural resources, banking, and tax. In general, international law will step out of its esoteric shadows into mainstream prominence.

The implications of legal globalization are tough to get your head around. It’s useful to keep a few things in mind:

A trend is not a destination; it’s a vector, the direction and magnitude of which are rarely known at the time. Trends take us to surprising places, known only after the fact.

In the arena of law, globalization will require choice. Pop culture and technology readily cross political and geographic borders; the law will need to be deliberate about how it does so.

The law is culturally resistant to change, therefore its participation in globalization will likely be driven by national or international activating incidents or disruptive technologies that make embracing it no longer optional.

Van Wishard sees a big upside to globalization:

If it succeeds, humanity may enter an epoch of opportunity and prosperity for a greater proportion of the earth’s inhabitants than ever before.

A global civilization will be a human civilization in a far higher sense than any that has ever been before, as it will have overcome the constricting social, ethnic and national limitations of the past.

But there’s a corresponding downside:

If [globalization] fails, it could retard progress in some nations for generations.

The birth pangs of such a new consciousness will bring infinite suffering as familiar attitudes and institutions fall away.

There is no doubt that the globalization of law will see its share of both “opportunity and prosperity,” “birth pangs” and “infinite suffering.” We’re in for it, one way or another.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part Two): New Ethos, New Ethics

rhodesFor our first prediction, we’ll do an easy one: the Model Rules of Professional Conduct will be changed to accommodate multijurisdictional practice and nonlawyer ownership of law firms.

This will happen when the tipping point of all the new practice developments we’ve been talking about is reached. The creation and adoption of the new rules will come quickly after that, because a new cultural ethos must have new ethical standards. In the meantime, the snowball is already rolling down the mountain — see, e.g., the ABA Commission on the Future of Legal Services we talked about last time.

The new Model Rules will trigger a cascade of related and derivative developments. None of these are hard to foresee. Here’s a sampling:

  • The process of adopting the new Rules will of course happen state by state, starting slowly, with intense polarization between adopters and non-adopters. The historically progressive states will lead the way.
  • Some states will be opportunistic in the early going, vying for status as the go-to jurisdiction. (Think Delaware corporate law. I saw this in my law practice when domestic asset protection trusts came into vogue, and states like Alaska and South Dakota jumped to the front of the line. The same thing happened when LLC’s first appeared, and Wyoming and Colorado jumped in.)
  • Because the new rules will be vigorously contested, a decision comparable to the lawyer advertising case (Bates v. State Bar of Arizona, 433 U.S. 350 (1977)) will be required to pave the way.
  • Once the new Rules are in place, professional corporation and similar laws governing law firm ownership will be revised.
  • Confidentiality and privilege will be expanded to nonlawyers in the new organizations.
  • With respect to clients, the earliest versions of implementation will be based on client disclosure, waiver, and consent, and likely will also require registration of the organization and its principals with the state (with background checks required).
  • There will be supervisory mandates governing the roles of the lawyers involved in the new multidisciplinary practice models.
  • BigLaw will jump in with both feet. Mergers with multidisciplinary and multijurisdictional partners will become the news du jour.
  • Group and prepaid legal service organizations, legal franchisors, and comparable market players will also be quick to jump in.
  • And so will industries that have historically worked closely with law firms — e.g., insurance, stockbrokers, financial planners, accountants, investment bankers.
  • But not too quick: these industries are highly regulated, and therefore new enabling laws and administrative rules will be required.
  • The malpractice industry will get a complete makeover.
  • Bar Associations will reinvent themselves to accommodate the newcomers who aren’t members of the bar.
  • There will be a huge CLE bonanza around all these developments.
  • Law schools will restructure curriculums to both teach the new rules and to offer classes in legal organization structures and business management that entrepreneurial lawyers are currently getting elsewhere.
  • Litigation and legislation and administrative proceedings will abound, and the whole thing will become a massive growth industry.
  • And so on and so on and so on.

It will take at least a full generation to assimilate all these changes, but 50 years from now lawyers and their nonlawyer colleagues will wonder what all the fuss was about.

More predictions coming re: how all of these and other developments will change not just law practice but the law itself.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

The Future of Law (Part One): Beyond the Borg

rhodesWe finished last year talking about the law profession’s cultural ethos, and how new practice models and wellness initiatives are liberating lawyers from its harmful aspects (the Legal Borg). An earlier 2014 series also looked at alternative practice models. Another considered how the law’s cultural ethos can cause stress-induced cognitive impairment and how mindfulness practice can help.

These developments may have sneaked in unnoticed, but now they’ve become the elephant in the room, and it’s time to deal with them. They’re causing a seismic shift in the profession’s ethos, and a new ethos requires a new ethic: i.e., new standards for how to enter the profession and how to behave once you’re in it.

The ABA Journal published a piece on that very topic on New Year’s Day, entitled “Does The UK Know Something We Don’t About Alternative Business Structures?” The article begins as follows:

For two nations sharing a language and legal history, the contrast in the visions at play in the legal systems of the United States and United Kingdom is more than striking. It’s revolutionary.

The debates in the U.S. go on: Should ethics rules blocking nonlawyer ownership of law firms be lifted? Is the current definition of unlicensed law practice harming rather than protecting clients? What about the restrictions on multidisciplinary practices?

And those debates are by no means ending: Witness the newly created ABA Commission on the Future of Legal Services. Though ABA President William C. Hubbard does not mention ethics rule changes in the commission’s primary task of identifying the most innovative practices being used in the U.S. to deliver legal services, some of those practices have been questioned as possible ethical breaches. Meanwhile, the rules and restrictions stay in place. The situation in the United Kingdom couldn’t be more different: Such restrictions have largely been lifted, and under the Legal Services Act the creation of new ways of providing legal services—including through alternative business structures—is more than simply permitted; it is actively encouraged.

Nonlawyer ownership of law firms, unlicensed practice, multidisciplinary practice… those are big issues. We’ll let the ABA tackle them. If you’ve been following these issues for awhile, you’ll remember the ABA did just that at their summer convention 17 years ago, and again the following year.

This blog won’t try to keep pace with the pros on that debate’s current version. We will, however, do some guessing of our own about how current trends in law practice and lawyer wellbeing might change not just lawyers and law practice, but our very stock and trade: the law itself. A new cultural ethos in the law will do precisely that. It is already. We’re going to talk about that, and speculate about what it might look like going forward.

According to Wikipedia, futurology is an “attempt to systematically explore predictions and possibilities about the future and how they can emerge from the present.” We’re not going to be systematic here. Instead, we’ll engage in some moderately-well-informed-but-we-don’t-know-what-the-insiders-know curiosity.

Should be fun. So draw the shades and polish up your crystal ball (maybe you prefer this kind, or maybe that) and let’s take a look!

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Saving Ourselves From Ourselves (Part Four): Following Your Heart

“We are the Borg. You will be assimilated.
Lower your shields and surrender your ships.
We will add your biological and technological distinctiveness to our own.
Your culture will adapt to serve us.
Resistance is futile.”

rhodesThe “Legal Borg” is responsible for the cognitive brain damage and psychological distress we learned about in the Killing Them Softly series. The Borg also damages another organ we rarely associate with cognition: the human heart.

Stephen Harrod Buhner, author, international lecturer, master herbalist, nutritionist, and all-around out-of-the-box thinker, describes the heart’s role in cognition as follows:

While modern science generally insists that the heart is only a muscular pump, it is also true that there are more than forty thousand sensory neurons in the heart, the same kind of neurons that are found in the brain.

Each individual section of the brain contains thousands to millions of neurons, several billion when all added together. Significantly, certain crucial subcortical centers of the brain contain the same number of neurons as the heart. The heart possesses its own nervous system and, in essence, actually is a specialized brain that processes specific types of information. The heart is tightly interwoven into the neuro-physiology of the brain, interconnected with the amygdala, thalamus, and cortex. These three brain centers are primarily concerned with (1) emotional memories and processing; (2) sensory experience; and (3) problem-solving, reasoning, and learning.

What this means is that our experience of the world is routed first through our heart, which “thinks” about the experience and then sends the data to the brain for further processing. When the heart receives information back from the brain about how to respond, the brain analyzes it and decides whether the actions the brain wants to take are going to be effective. There is a neural dialogue between heart and brain, and in essence the two decide together what to do. While the brain can and does do a great many things with the information it receives, the heart can override it, directing and controlling behavior if it decides to do so.

Over the past twenty years, researchers in an emerging specialty, neurocardiology, have discovered that the heart really is a specialized brain in its own right. It can feel, sense, learn, and remember.

As the heart senses the world outside us, it generates emotions in response to the type of information or the meaning embedded within the information that we are receiving.

Many of the emotional experiences that flow through the heart are stored as memories within the heart, much as memories are stored in the brain. The heart literally learns from the emotional experiences it has and begins to act in certain ways on the basis of what it learns. It begins producing hormones and creating different beating patterns depending on what experiences flow through it and what it decides about those experiences.

Buhner observes that the modern world has lost touch with the heart’s way of learning and decision-making, and concludes by saying, “There is a reason that heart disease is the number one killer of people in the Western world.”

The Borg is wrong: resistance is not futile. We saw last time that some lawyers have escaped assimilation by entering a new law culture outside of the Borg’s influence. We don’t all have to follow their path — there are others — but all paths away from assimilation take courage, allowing our hearts to “override” our brains, “directing and controlling [our] behavior.”

I wish you courage this New Year.

Thanks for reading, and see you next year!

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Saving Ourselves From Ourselves (Part Three): Escaping the Borg

“We are the Borg. You will be assimilated.
Lower your shields and surrender your ships.
We will add your biological and technological distinctiveness to our own.
Your culture will adapt to serve us.
Resistance is futile.”

rhodesIn his book Between Two Ages: The 21st Century and the Crisis of Meaning, futurist and Washington think-tanker Van Wishard says this:

America is at the vortex of a global cyclone of change so vast and deep that it is uprooting established institutions, altering centuries-old relationships, changing underlying mores and attitudes. . . . It is not simply change at the margins; it is change at the very core of life. Culture-smashing change.

The law is among the “established institutions” currently being “uprooted” by “culture-smashing change.” Consider, for example, the legal service ventures we looked at in Winds of Change (Part 4): Future Shock and the Business of Law and Wind of Change (Part 5): the New Lawyer Entrepreneurs. The magnitude of change these ventures indicate was unthinkable ten, even five years ago. Many of them are driven by young lawyers. No surprise there. More surprising is the legal profession’s apparent inability to recognize and explain the exodus of talent out of established practice models into new ones.

For example, a recent ABA compilation of Martindale-Hubbell data concluded that the legal profession is getting older, citing a rise in median age from 39 to 49 over the 25-year period ending in 2005. Indiana University law professor William Henderson offered several possible explanations for these findings at Legal Whiteboard, and concluded:

Arguably, the simplest explanation for these patterns is that it has gotten much harder over time to parlay a JD degree into paid employment as a licensed lawyer. So, faced with a saturated legal market, law school graduates have been pursuing careers outside of law.

So far so good, but we might further speculate that some of those “careers outside of law” are actually moves into the new legal service ventures, in which lawyers (and non-lawyers — which is a whole other issue) are providing services that have historically been considered practicing law. If so, then at least some licensed lawyers are still parlaying their law degrees into paid employment, but doing so in settings outside of the Martindale-Hubbell database, which for that 25 year period was focused on traditional law firm practice.

This is more than a data collection issue. Neurological research suggests that our observation and cognitive faculties are linked to culture, which explains why the old (traditional law practice culture) has trouble seeing the new (the new legal service ventures). Columbia University’s Norman Doidge, M.D. summarizes this research in his book The Brain That Changes Itself:

The idea that culture may change such fundamental brain activities as sight and perception is a radical one.

Culture can influence the development of perceptual learning because perception is not (as many assume) a passive, “bottom up” process that begins when energy in the outside world strikes the sense receptors, then passes signals to the “higher” perceptual centers in the brain.

The neuroscientists Manfred Fahle and Tomaso Poggio have shown experimentally that “higher” levels of perception affect how neuroplastic change in the “lower,” sensory parts of the brain develops.

In other words, our cultural point of view determines what we see and don’t see, and can literally blind us to new developments happening in our midst.

Thus it’s possible that the future of law has arrived right under the Borg’s unseeing gaze. The new legal services entrepreneurs certainly think so: their pitches offer both lawyers and consumers relief from the things about traditional law practice that drive them crazy. (Check out this one and this one.)

“Culture-smashing change” indeed.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Saving Ourselves From Ourselves (Part Two): The Borg Isn’t a Personal Problem

“We are the Borg. You will be assimilated.
Lower your shields and surrender your ships.
We will add your biological and technological distinctiveness to our own.
Your culture will adapt to serve us.
Resistance is futile.”

rhodesTo recap from last time:

Ethos is “the characteristic spirit of a culture, era, or community, as manifested in its beliefs and aspirations.”

Like any institution, the law profession has its own ethos, manifested in expressed and unspoken beliefs and aspirations that guide our attitudes and behaviors.

What I’m calling the “Legal Borg” (c’mon, we gotta have a little fun every now and then!) is that portion of the law ethos that is responsible for the cognitive- and performance-impairing brain damage we learned about in the Killing Them Softly series, also for lawyers’ high rates of depression, anxiety disorders, substance abuse, and suicide.

The Legal Borg is the part of our professional ethos that’s out to get us. It’s stealthy and insidious. It avoids detection not by hiding but by convincing us we’re not seeing what we’re seeing. Or that what we’re seeing isn’t worth the bother.

Take lawyer career dissatisfaction, for example: it’s been on the rise for decades; we know that personally and anecdotally, also from numerous bar association polls and university research studies. Same thing with lawyer psychological distress. The Borg’s response? To convince us — individually and collectively — that these things are a personal problem. Some people just can’t handle the stress. Too bad for them; the rest of us have work to do. If you need help, get it, it’s out there. In the meantime, we don’t like thinking or talking about it, so don’t ask, don’t tell.

Further, if we dare question whether we’re okay with that, the Borg isolates us, labels us aberrant. For example, work-life balance initiatives are all over the legal profession, in bar association initiatives such as this one through the CBA (also summarized in The Colorado Lawyer archives back in 2007 — I wonder whatever happened to it?) and in law firms such as this one (chosen at random — there were too many). Statistically, these initiatives have been largely populated by women, although that is changing. So what does the Borg do? It declares that this is primarily a “women’s issue,” or perhaps a “parents issue,” and creates “alternative” career paths for these outliers. “We’ll accommodate them, but we all know that’s not where the real action is.” So says the Borg.

As for law firms with wellness programs, that’s a California or Europe thing. Not in our house! Besides, you need to be careful with those programs — you can get in trouble if you get carried away.

And so it goes. That’s the Legal Borg working overtime to promote the perception that for everybody but an irrelevant, dissenting few, things in the profession are as they have always been, and we’re all better off that way.

It’s a strategy that’s worked for a long time, but there are signs everyday that that the Borg’s grip is weakening — enough to make you wonder if the tipping point may have already been reached. We looked at one of those signs — an ethical initiative in Ohio — last time. Consider also this description of another Ohio initiative (convened in Columbus the day after I was recently there — darn!): a confab sponsored by the Supreme Court of Ohio Commission on Professionalism on “Preparing the Leaders of Tomorrow’s Changing Legal Profession.”

That title may be misleading. We may not be talking about “tomorrow” anymore. The future may already be here.

More on that coming up.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Saving Ourselves From Ourselves (Part One): We Are The Borg

“We are the Borg. You will be assimilated.
Lower your shields and surrender your ships.
We will add your biological and technological distinctiveness to our own.
Your culture will adapt to serve us.
Resistance is futile.”

rhodesThe Borg is a mass consciousness, an ethos. I Googled “ethos” and here’s what came on top:

Ethos: the characteristic spirit of a culture, era, or community as manifested in its beliefs and aspirations.

The law profession is a culture and community with its own ethos, manifested in both expressed and unspoken rules of belief and aspiration. From the moment we applied to law school, we’ve been giving our implied consent to being assimilated into this ethos. Little did we know it included its own version of the Borg: as we saw in the Killing Them Softly series, our assimilation can result in cognitive- and performance-impairing brain damage.

I spent last week witnessing the legal profession’s Borg Ethos in action as I conducted my “Beyond Burnout” CLE workshop in Cincinnati, Columbus, and Cleveland. Some attendees found it within themselves to escape assimilation. As one said in his course evaluation, “Today I moved closer to taking the steps I need to take to rediscover the creativity, vigor, and passion which came so naturally before I learned to think like a lawyer.”

Like him, we can save ourselves… if we want to.

The workshops were prompted by a new Ohio CLE mandate for instruction in “mental health issues.” Ohio also requires instruction in not just the Rules of Professional Conduct but also the Ohio “Lawyer’s Creed” and “Lawyer’s Aspirational Ideals.” Those requirements contain some fascinating anti-assimilation provisions.

Consider for example this excerpt from The Lawyer’s Creed:

To my colleagues in the practice of law, I offer concern for your reputation and well-being.

And this one from The Lawyer’s Aspirational Ideals:

As to my colleagues in the practice of law, I shall aspire . . . to offer you assistance with your personal and professional needs.

Amazing. Ohio lawyers have an ethical duty to be concerned for the well-being of fellow lawyers, and to offer assistance with their personal needs — such as helping each other to not be assimilated by the legal profession’s Borg Ethos.

This goes way beyond Model Rule 8.3, the Colorado version of which says we must report something that “raises a substantial question as to [another] lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” In my legal ethics class, we called this the “Rat-On Rule,” and we all knew we would never do that. That’s how the Borg Ethos works: it sucks us in, detaches our normal sensibilities — even the evolutionary survival parts of our brains that instinctively want to look out for the safety and well-being of the other members of our tribe. By contrast, Ohio has made this duty to care explicit.

Truly amazing. When we see a duty to care appearing in CLE ethics requirements, we know that the winds of change are truly blowing in our profession. We’re going to hoist our sail to them in this series. To prepare, we do well to follow the advice the shrunken head on the Knight Bus in Harry Potter and The Prisoner of Azkaban:

“Fasten your safety belts, clench your buttocks! It’s going be a bumpy ride!”

Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on that topic appeared in an article in the August 2014 issue of The Colorado Lawyer. His ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned about personal growth and transformation, which are the foundation of much of what he writes about here. If you enjoy reading this blog and would like to contribute a blurb to Kevin’s upcoming collection of these posts, please email Kevin at kevin@rhodeslaw.com.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the link to sample and download it from the distributor’s webpage. (Soon to be available on iTunes, Barnes & Noble, and Scribd.) Includes Forewords from Debra Austin, author of the Killing Them Softly law journal article, and from Ron Sandgrund, author of an article on lawyers exiting the law in the August 2014 issue of The Colorado Lawyer, in which Kevin was interviewed.