Key trends in the legal profession.

• Author: Garcia, Mike Jay

Trends are patterns of change over time. They are used to help predict what the future might be like. Although entirely predicting the future is impossible, we can create images of what might be in order to better conceive what should be. By identifying the key trends which will take place in the legal profession and assessing their impact, we can start to plan how to respond to them by generating and playing out scenarios of possible strategies.

In the past two decades, we have witnessed extraordinary changes and trends which will have a lasting impact on the structure of the legal profession.(1) This article identifies seven of the key trends which will alter the way law is practiced in the 21st century: skills training programs for beginning attorneys; the increase of paralegals and legal technicians; the increase of pro se litigation; the impact of technology on the legal workplace; the advancement of alternative dispute resolution; overcrowding in the legal marketplace; and the increase in the number of women attorneys. Together, these trends provide an overview of changes that will shape the legal profession and The Florida Bar as it enters the next century.

Skills Training Programs for Beginning Attorneys

A short time ago, a recent graduate from law school was able to receive mentoring and counseling within a law firm or legal office from a colleague or a judge. Today, due in large part to increased court filings, judges find themselves overbooked with less time to help teach and mold new talent while experienced lawyers are forced to spend the majority of their time working on obtaining additional billable hours instead of mentoring. The saturation of lawyers in the marketplace has forced a vast number of beginning attorneys to go directly from law school to opening their own solo practice, thus making it nearly impossible for new graduates to receive hands-on training from their more experienced colleagues.

Many legal experts have attributed a decline in professionalism over the past two decades directly to young lawyers and the lack of practical skills they possess when they leave law school. Today, in an effort to combat this problem, many law schools around the country are offering a variety of options for students to obtain skills training.

A continuing debate in the area of skills training between law school deans and members of the bench and the bar has focused on whether law schools should teach students the full range of skills they will need in the practice of law or focus primarily on teaching doctrine and analytical skills. At a public hearing, members of the Florida Bench/Bar Commission and other renowned judges and attorneys called for the establishment of a mandatory internship program, while Florida law school deans rejected the idea citing numerous reasons why such an internship program could never be feasible.

Florida attorneys are not alone in their concerns about a lack of skills training for new graduates. Several years ago, the ABA Task Force on Law Schools and the Profession released a report which later became known as the MacCrate Report, named after Robert MacCrate who served as chair of the task force.(2) One of the key points made in the MacCrate Report was that law schools were not doing enough to prepare students to become lawyers.(3) The task force recommended starting skills for new attorneys first be developed in the law school setting.(4)

The consensus of authors on this subject agree law school professors need to instill a more substantial dose of practical skills on students. A recent trend, however, is that those in favor of skills training are no longer putting the brunt of responsibility solely on the law schools to provide this training. Many legal experts now believe skills training for law students must be a shared responsibility; a cooperative effort involving the bar, the bench, and the law schools. The MacCrate Report proclaims both law schools and the practicing bar are responsible for developing competent, responsible lawyers.(5) The report asserts state bars share the obligation for developing practical or applied lawyering skills in beginning attorneys.(6)

Haddon reiterates the bar has an obligation to help beginning attorneys attain practical skills and adds practicing lawyers also must share some responsibility for legal training.(7) He suggests individual bars closely monitor how law firms supervise new attorneys and implores lawyers to get "back to basics" and start mentoring beginning lawyers.(8) Haddon advises adopting a mentorship program requiring lawyers with six or more years of experience to provide guidance to at least one new lawyer every three years in exchange for CLE credit and other benefits.(9)

Menkel-Meadow said she would require new lawyers in the 21st century not only to be require to take CLE courses, but also to attend mandatory ongoing skills clinics to brush up on old skills, learn new ones, and receive feedback.(10) She applauds the drive for more diversity in law school teaching techniques and recent attempts to cover more of what lawyers actually do.(11)

It is essential law schools continue to adapt and evolve to meet the needs of graduating students in the everchanging and increasingly diverse sociological, technological, economic, geographic, and intellectual context in which they will be spending their professional lives. Law schools have made excellent progress, but when considering that the current oversaturation in the job market will force more beginning attorneys into solo practice, it is obvious much more needs to be accomplished to ensure these new attorneys obtain the training needed to become successful, competent lawyers in the 21st century.

A key trend in the next decade will be a concentrated effort by state bars, the law schools, the judiciary, and experienced attorneys to establish skills training and mentoring programs for beginning attorneys. Law school curricula, as well as bar admission requirements and CLE programs, must be assessed to provide new attorneys with the best possible preparation for performance in the legal profession. With these systems in place, vast improvements will occur in the legal profession in the areas of professionalism, ethics, and public perception.

Increase of Legal Technicians/Paralegals

The American Bar Association Commission on Nonlawyer Practice reports nonlawyers, both as paralegals accountable to lawyers and in independent roles, have become an important part of the delivery of legal services.(12) The commission adds that its expertise and dedication to the system have led to improvements in public access and in affordable legal services.(13) The commission recommends the range of activities of traditional paralegals be expanded, with lawyers remaining accountable for their activities.(14) They also recommend individual states consider allowing nonlawyer representation of individuals in state administrative agency proceedings with these nonlawyers being subject to the agencies' standards of practice and discipline.(15) This has already started to occur in some Florida venues, such as proceedings before the Public Employee Relations Commission.

In Florida, the trend of legal assistants independently opening their own offices appeared to take off following a Supreme Court decision concerning The Florida Bar's prosecution of Rosemary Furman, a former legal secretary who started a business preparing documents for self-representing persons in divorce cases. The case generated such negative public opinion toward The Florida Bar that the Florida Supreme Court eventually had to adopt a more permissive rule allowing nonlawyers to assist the public in preparing court-approved legal forms.(16)

Legal technicians are providing a variety of legal services to the public today and The Florida Bar's unlicensed practice of law enforcement program has not deterred or prevented most of these activities, according to a 1992 report of The Florida Bar Legal Technician Study Committee. The report related there was no regulation of legal technicians and no uniformity regarding their qualifications, education, training, or experience.(17) The committee even went as far to suggest The Florida Bar consider removing institutional barriers such as ethics and advertising rules currently inhibit the provision of low cost legal services by lawyers.(18) The committee also recommended the Bar provide alternative methods of providing low-cost legal services to the public.(19)

Patricia Seitz, 1993-94 Florida Bar president, acknowledged legal technicians are filling a need lawyers are not meeting.(20) She stated, "Constitutionally, we cannot close off someone who is filling such a need, unless we are able to provide an alternative at an equally affordable price."(21) The Florida Bar's Report of the Special Committee on Nonlawyer Practice noted the Bar's UPL effort, one of the most extensive in the United States, has been unable to control nonlawyer delivery of affordable legal services.(22) The committee believes the proliferation of nonlawyers engaged in the delivery of affordable legal services results from consumer...