Law professor: Attorneys must evolve with changing times
By Laura Ernde
Staff Writer
Lawyers are trained to look backward, researching laws and court
decisions that came before to look for precedents. So it shouldn’t come as a
surprise that the legal profession as a whole has trouble adapting to change,
law professor James E. Moliterno says.
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| Moliterno |
Moliterno spoke to the State Bar Board of Trustees last
month about how the profession, at its own peril, has failed to change with the
times and done its best to maintain the status quo over the last century.
“Trying to stay the same when everything is changing around
you doesn’t work out all that well,” the Washington and Lee University School
of Law professor said via videoconference at the board’s May 9 meeting. Moliterno
has written a book, “The Trouble with Lawyer Regulation,” as well as a law
review article on the subject.
Only during periods of crisis have lawyers reacted, he said.
For example, a wave of immigration around the turn of the last century prompted
efforts to limit who could enter the profession with the addition of moral
character examinations and increased educational standards. More recently, the
Watergate scandal sullied the public image of lawyers and led to mandatory legal
ethics courses.
Today, the profession has done little or nothing to adapt to
advances in technology and the globalization of the economy, he said.
He pointed out that when the American Bar Association conducted
a comprehensive review of ethics rules in 2009, the Ethics 20/20 Commission’s guiding
principles were “protection of the public, preservation of core professional
values, and maintenance of a strong, independent and self-regulated profession.”
“Protect, preserve and maintain. Those are not the words of
looking forward and adjusting to change,” he said.
Regulators such as the State Bar of California should take a
page from a company like Western Union, which survived the demise of the
telegraph by focusing on its role as a provider of long-distance
communications.
The profession “should be in the business of facilitating
new ways of delivering legal services rather than protecting the monopoly,” he
said.
Moliterno had some other pieces of advice for legal regulators:
- Get help from non-lawyers who are experts in their fields to help
manage the changes.
- Don’t wait for a crisis. Try to anticipate changes and make
changes to deal with them. For example, consider easing restrictions on
cross-jurisdictional practices and allow alternative business structures.
When Board Vice President Craig Holden asked if there were
other jurisdictions they should be looking to as a model, Moliterno said he
thinks California has been out in front with efforts such as its Task
Force on Admissions Regulation Reform.
“You are paving the way for others,” he said. “I’m
fascinated to watch what you’re doing.”