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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.

James 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.”