Ethics and Innovation in Legal Services

March 19, 2019

Executive Summary

This presentation compared the relative lack of innovation in law with the record of robust innovation in other fields, and described how ethics standards restricting the unauthorized practice of law, non-lawyer ownership of law firms (Model Rule 5.4(b), (d)), and sharing of legal fees with non-lawyers (Model Rule 5.4(a) are holding back innovation. In other fields, industrial scale production creates commoditized products and services at radically lowered per-unit costs, greatly increasing the number of people who can afford those products and services (compare the high price of bespoke clothing with the low price of off-the-rack manufactured clothes). By contrast, a significant portion of legal services are bespoke rather than commoditized, and thus are available at relatively high prices that few individuals can afford. A recent study showed that 76 percent of cases in state courts involve at least one party who is not represented by counsel. The law has seen little of the kind of innovation that would make legal services available at prices individuals can afford. To the degree that our "ethics" standards stand in the way of such innovation, they need to be reexamined.

Kathleen Clark
Professor of Law
Washington University

CLE Materials

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