State bar works on strategic plan to address issues
Part of the work’s motivation comes from current economic pressures.
One issue is that more legal services are being delivered in new ways and by new sources, and the bar wants to figure out how current and future lawyers can deal with that scenario because it can often involve attorneys who aren’t licensed in Michigan or, in some cases, aren’t even attorneys.
“Due to economic pressures, more and more people are feeling they can’t afford a lawyer and are therefore seeking one of two things: They’re looking for alternative billing practices, rather than going by the hour, or they’re seeking new sources,” said Courtade, a partner at Rhoades McKee.
Instead of contacting an attorney, some people go online to find legal forms. That has created a new type of competition for the industry. Courtade also said people are going to social networks for online legal advice.
Some of that advice, however, may not apply in Michigan.
“This is something we’re keeping an eye on — not only how we handle unlicensed Michigan attorneys practicing law in our state but to protect the public from people who just don’t know Michigan law and are giving advice that may be appropriate in their jurisdiction but not in our state,” he said.
“There is a huge problem with that.”
Then there are those who represent themselves. Courtade said retired Berrien County Circuit Court Judge Al Butzbaugh reported that at least one person did so in 80 percent of the divorce cases he heard, and both parties were their own lawyers in about half of the cases.
“He found people using forms that they had picked off the Internet that were based on Hawaii law. In that case, it’s not somebody doing something unethical, unprofessional, or unlicensed. It’s an individual who is desperate to get a divorce, who is seeking access to the court but doesn’t feel he can afford legal representation and is trying to do what he can to get through the process.” he said.
“That’s something the state bar continues to look at in how we can make access to justice affordable for all Michigan residents.”
The bar committee also is examining how the profession might bill clients other than by the traditional hourly rate. Courtade said he thought more attorneys will be providing services for pre-set flat fees. He also felt a fairly recent trend, where lawyers “unbundle” services, will pick up steam.
“What that involves is, rather than hiring a lawyer to handle a business dispute from start to finish, people hire a lawyer to draft a motion, or draft a pleading that goes to the court, or refute a contract, and nothing more,” he said.
Courtade also pointed out there are some ethical restrictions and even court rules that can make it difficult for an attorney to unbundle services on a client’s behalf, and the bar feels that is something that needs to be looked into further.
“Because if you think about it, if you can make it easier for somebody to hire a lawyer for limited-scope representation, which is the more formal name for unbundling, and they can agree in advance to a small portion of legal work, it will make it more affordable for individual clients,” he said.
“Frankly, we think it will generate more work for lawyers because the people currently not going to lawyers will go to lawyers if they know they can hire one for a discrete section. So that is something we think could make a significant difference.”
Flat fees and unbundling, though, aren’t going to completely eliminate tradition. Attorneys and clients will still enter into retainer contracts, in which lawyers receive a set monthly amount whether or not they perform services every month. In return, attorneys are always on call and handle all of their clients’ legal needs.
Courtade said clients haven’t always held that payment method in the highest regard, but it’s not going away. In fact, it’s growing.
“It has become more common now; it is becoming more acceptable. It’s a way that offers predictability to both the lawyers and to the clients for budgeting purposes,” he said.
The bar’s planning effort began earlier this year with a review of what it has accomplished since its previous plan was enacted, and what hasn’t been accomplished. Then the bar tackled areas that needed attention now that weren’t so visible in the past. It’s also dealing with issues that may occur in the future.
The process covers a lot of ground is a short timeframe, and the finish line is within sight.
“Our plan is to have a face-to-face meeting on March 29 and come up with recommendations to be delivered to the board of commissioners at their April 26 meeting,” said Courtade.
“It’s going to be an intensive process but one that we believe will be very informative for all the members of that committee and one that we think will result in good work product for the bar for the next couple of years.”