Practicing law in the sharing economy

• Author: Janelle Orsi
• Profession: Is the Director of the national nonprofit Sustainable Economies Law Center, and she is a 'sharing lawyer' in private law practice in Oakland, CA
• Pages: 21-93

21

CHAPTER TWO

PRACTICING LAW

IN THE SHARING

ECONOMY

PART 1: LAW YERS IN A SHARING WORLD

Who Serves the 70 Percent?

There’s something awry in the world when I have clients that earn $6 00

per week and lawyer friends that charge $600 per hour. Are some people

really 40 time s more valuable than others? Or is our economy t ruly that

divided?

Of course, the entire Occ upy movement has concluded that it’s the

latter, and I tend to agree. The question now is: Where will law yers

fit in a society t hat strives to replace scarcities with sharing a nd abun-

dance? For a start, we need to acknowledge two art ificially created scar-

cities holding the legal world captive: the artificial scarcit y of legal job

opportunities a nd the artif icial scarcity of accessible legal services.

I’m not afraid of artificia l scarcities. Unlike the real scarcities—such

as the current scarcities of clean water, clean air, and fertile soil—artifi-

cial scarcities can be immediately remedied by a change in behavior. As

lawyers, the way we practice law and structu re our law practices could

remedy scarcities in the legal system and far beyond.

The ABA acknowledged in the 1970s that the “middle 70% of

our population is not being reached or served adequately by the legal

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22 | P  L   S  E

profession.”1 Since then, lawyers have only gotten more expensive,

funding for legal ser vices has been cut, the rich have gotten richer, and

the poor have become more numerous.

Yet, we don’t have a shortage of trained legal minds. I n 2011, the

ABA Journal 2 reported that 32 percent of the prior year’s law grads were

without legal jobs.

Underserved Clients + Underemployed Attorneys =

Artificial Scarcity

Put two and two together and you can see the artificially created scar-

city. We should not have a scarcity of law jobs AN D a scarcity of legal

services. W hen supply fails to meet demand, somethi ng else is going

on. If law firms were to hi re more attorneys, provide more legal ser-

vices at a lower cost, lower everyone’s pay, and cut back on extravaga nt

cocktail par ties, then we could begin to remedy t he scarcity. To do so,

however, would begin to cut away at the elite status that lawyers have

carved out for themselves in society. To protect that status, law firms

have chosen, instead, to lay off lawyers and continue to accept only

high-paying clients.

There are other factors contributing to t he artificial scarcities of

legal jobs and legal services:

Lawyers Keep Themselves Ar tificially Busy

Lawyers work in ways that force clients to ret urn over and over again for

pointless work. Lawyers wr ite documents that are so complicated that a

client must rehire the lawyer to explain what the document says, f igure

out how to apply it, and help with necessary changes. Cl ients have hired

me simply to help them figure out what their bylaws mean, wh ich shows

me that the draft ing attorney has done a disservice for his/her clients.

The Legal Profession’s Culture of NOT Sharing

When I became a lawyer, I invited other solo attorneys to lunch to

learn about their work. One lawyer somewhat reluctantly agreed to

1. Statist ic cited by the Supreme Court in Bates v. St ate Bar of Ariz ,. 433 U.S. 350

(1977).

2. Debra Cassens Weiss, A Record Low for 2010 Law Grads: Onl y 68% Have Jobs

Requiring Bar Passage, A BA J  ( June 1, 2011, 7:57 AM), ht tp://www.abajour nal.com /

news /ar tic le/a _r ecor d_ low_ for_ 2010 _la w_g rad s_o nly_ 68 _h ave _job s_ req ui rin g_b ar

_passage/.

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Practicing La w in the Sharing Economy | 23

have lunch with me, but said he “wouldn’t share any trade secrets.”

Lawyers have trade secrets? Maybe I shouldn’t be so surprised, because

plenty of people have advised me: “Don’t write too many legal guides

and share too much information or you wi ll put yourself out of busi-

ness.” This has apparently become the generally accepted “wisdom”

about how to be a lawyer.

When this k ind of “wisdom” becomes so generally accepted, it’s a

dangerous thing. I simply can not mesh the “wisdom” of keeping secrets

with what I feel is lawyers’ responsibility to do just the opposite.

I need only read the Preamble3 of the ABA Model Rules of Profes-

sional Conduct to be re minded that I am an “off icer of the lega l system

and a public citizen having special responsibility for t he quality of jus-

tic e.” Furt hermor e, “[a]s a p ublic c itize n, a law yer sho uld see k impro ve-

ment of the law, access to the legal system, the admin istration of justice

and the quality of service rendered by the legal profession.” Since I

am an officer of the legal s ystem and responsible for improving access

to the legal system, I interpret t his to mean that I have a responsibil-

ity to share information, rather than withhold it. (Plus, I do hope one

day to stop hearing the joke: “‘Sharing law yer,’ isn’t that an oxy moron?

Nyuck, ny uck.”)

Lawyers’ Real Stock in Trade

When I say that it is lawyers’ dut y to share informat ion, I should clarify

that information means something very dif ferent than advice. Abraham

Lincoln said that “a lawyer’s time and advice are [ her] stock in trade.”

Advice is the work I do; it is the carefully crafted, i ndividually tailored

guidance that I g ive a client. Giving advice takes thought and time, even

sweat and sleepless nights. This is what clients pay me for, and it feels

like a good exchange. I have done somethi ng valuable for them, and they

pay me in return.

What does not feel good is using information as a stock in trade,

because to do so simply exploits a marketplace where clients are des-

perate for and do not have access to information. Lawyers do th is all

the time. Take, for example, a standard set of Conditions, Covenants &

Restrictions (CC&Rs) for a two-u nit condo property. The going rate

3. M R   P’ C, Preamble and Sc ope, http://ww w.american

bar.org/gro ups/prof ession al_r espons ibilit y/public ations /model_ rule s_of _profe ssiona l

_conduct/model_r ules_of_ professional_conduct _preamble_sc ope.html.

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