Nature abhors a vacuum, so the saying goes.  So it’s not surprising that with big law’s demise,  we’re seeing every flavor of alternative structure evolve, from upscale contract lawyer services  to remained law firms,  some  that rely entirely on outsourced workers  to meet client needs to groups of lawyers who operate separately but hold themselves out as a partnership or some sort of organized (albeit loosely) practice.

For solo and small firm lawyers, these types of collaborative arrangements have their advantages, including backup, flexibility (the firm gets expertise without making a full time hire), an added revenue stream for the of counsel lawyer who can continue a side practice and the ability to provide clients with a more full service experience.  At the same time, of counsel relationships have drawbacks as well – most significantly, the potential for conflicts.

Late last year, the Virginia Bar addressed the conflicts question in LEO 1866 – a decision worth reading if you’re considering an of counsel relationship.  The opinion opens with a definition of the “of counsel” relationship, which refers to a:
close, continuing, and personal relationship between a lawyer and a firm that is not the relationship of a partner, associate, or outside consultant. The relationship must involve some element of the practice of law, and cannot be limited to a pure business affiliation; the “of counsel” may not simply be a forwarder or receiver of legal business to or from the firm.
Even though an “of counsel” may have very limited information about all of the firm’s cases, Virginia holds that lack of actual knowledge is irrelevant for conflicts purposes. From the opinion:
Once the lawyer and the firm begin to hold the lawyer out as “of counsel” to the firm, conflicts will be imputed between the two regardless of whether the lawyer actually has any information about the clients of the firm or vice versa.
Moreover, the opinion states that once a lawyer hold himself out to potential clients as having a close affiliation with the firm, he won’t avoid conflict of interest by refusing the title of counsel or calling the relationship something else.  However, one way that Virginia lawyers can collaborate and avoid conflicts is for a firm to retain an outside lawyer as an independent contractor or consultant rather than as “of counsel.”

As you’ve probably heard, yesterday, Google announced that it’s retiring Google Reader, a free service for consolidating and reading RSS feeds on July 1, 2013.  Launched in 2005, Google Reader has a loyal following but with user rates declining, the Reader, along with many other products, will now fall victim to another round of spring cleaning.

So what can we learn from the demise of Google Reader? First, that blogging (at least conversational blogging rather than blogging for SEO) is on the decline (I know that my buddy Kevin O’Keefe will disagree – but hear me out.  GoogleReader grew out of Google’s launch of Blogger and provided a tool to make it easier for blogs to gain traffic.  Here, my experience is typical; as a long time blogger, I relied heavily on GoogleReader for new stories (particularly when I was pumping out ten to twelve posts a week during my three year stint at Legal Blogwatch.

Yet lately, I’ve noticed that many of the younger people who’ve passed through my office as interns or clerks over the past few years don’t use GoogleReader, relying instead on other services like email alerts or GoogleNews tools to track new events. But then again, many of the younger generation whom I’ve worked with don’t follow blogs much as all, save for the big kahunas like HuffPo or maybe (if they’re lawyers) Above the Law. Indeed, when I recently scolded newbies for not knowing how to blog or set up and track RSS feeds, I didn’t consider the possibility that as a blogger, I’d become passe and needed to be dragged into the 21st Century 3.0 rather than the other way around.

In lieu of creating content, these days I notice many lawyers just setting up content curation hubs  like these which basically recirculate content produced by others. To me, content curation platforms are a worse SEO/marketing cheat than blog scrapers which most readers realize simply pilfers content (plus bloggers could protect full scale scraping by asserting copyright and limiting copy available via RSS).   By contrast, content curation sites string together a bunch of links and a few lines of copy (fair use) and make it look pretty; while the curator draws traffic off others’ efforts.  Of course, no one is thinking to ask what happens when abundant, free content dries up or moves behind a paywall, which is now a growing trend by many news services.  Google Reader’s demise is harbinger of the move away from free content.

Update, 3/12/13 (3 pm) Solosez member and contract lawyer Lisa Solomon posted about this on her
Facebook page and Richard Komaiko, Attorney Fee’s founder is feeling the heat. The emerging dialogue should serve as a warning to future law-preneurs you don’t go beta when people’s careers and livelihood (even lawyers) are on the line.
About a year ago, I blogged, somewhat critically  about a then-new website, AttorneyFee.com  with a mission to make lawyer pricing transparent.  Specifically, I did not criticize the concept of fee transparency (indeed, I’ve recently suggested ways that lawyers could use visuals like online menus  to disclose prices clearly to potential clients. Instead, I took issue with various inaccuracies, misstatements and ethics problems – many of which have since been corrected.
Unfortunately, having addressed one set of problems, AttorneyFee now presents another one, far worse.  Via the Solosez listserve, I learned that AttorneyFee had added a feature allowing site visitors to contact one of the listed lawyers. In response, however, users receive a message that “Attorney X will be in touch shortly” and inviting the user to contact another lawyer.  Since I registered for Attorneyfee.com when I wrote my original post, I decided to check this feature out – and as the screen shots below show, here’s what happens:

Step 1: Locate profile and click on “talk” button:

I did not attend ReinventLaw, but would have liked to. With four matters pending in various stages at the D.C. Circuit and my daughters in the height of school activities, traveling cross country even for a day wasn’t in the cards this time. So I settled for tracking the conference via the #reinventlaw hashtag feed which though constant, offered just a tiny keyhole view of the full event.

While I’m not sure that I’d characterize many of the concepts being pitched at ReinventLaw as novel (many have been tried, albeit in more primitive forms, before), what is new is both (1) the pace at which these trends (such as virtual offices, online forms, corporate outsourcing ala Axiom and alternative research services) are gaining mainstream traction and (2) recognition of the significance of these developments in academia – ReinventLaw is, after all, the brainchild of two MSU professors, Renee Knacke and Daniel Katz.  Technology and policy are driving these changes; tech gives us powers we never had before while the recent deregulation of UK markets  are creating financial opportunities that could fill the void left by the implosion of big law.  And of course, there’s also the prospect of expanding meaningful access to justice, which has always been one of my goals with this blog.

But if real change is going to come to our profession, it needs to include solo and small firm lawyers. And while I’ve steadfastly contended that solos and smalls are the most creative of lawyers; the ones who historically have driven innovation  in the profession — if only of necessity or desperation — we solos and smalls can’t always accelerate full-throttle into tomorrowland without compromising the needs of our clients today.

That tension between the promise of tomorrow and reality of today echoes in the comments of Fishtown lawyer Jordan Rushie  on Scott Greenfield’s post, Reinvent Law or What I Did on the Eve of Destruction (there’s also a back and forth between Scott and Dan Katz, who organized Reinvent). From what I know of Jordan, he’s not adverse to technology – it’s just that the courts where he practices haven’t quite come up to speed on the concept of “paperless,” and continue to insist of ink-signed, hard-copies rather than e-signed images on ipads.  I’ve raised similar concerns myself in my efforts to “trash the billable hour” – for much as I’d like nothing more to get rid of timekeeping forever, ethics rules and courts’ requirements for documentation of hourly billing to support attorneys’ fees requests prevent me from going all out. 

Buying legal services can be confusing. Sometimes – in cases where work is unpredictable, or facts are unknown, opaque information may be acceptable. But for work that is commodity in nature or more predictable, there’s no reason not to make prices available to consumers – if not on your website, then at least in materials…

Earlier this week, Scott Greenfield asked whether live CLE can survive in a largely online, virtual world? After all, live CLE costs more to produce (room rental and potential travel costs for a speaker) and may attract fewer attendees because a live event doesn’t have the same flexibility as a watch-it-anywhere webinar. Yet, as Scott points out, the quality of online CLE often doesn’t match live, where  students can ask questions and faculty can experiment with different approaches in response to a sea of blank faces.  That level of interaction is lost online which reduces the quality.

Online CLE doesn’t just eliminate interaction between faculty and students, but between students and other students. In many ways, learning is a collective experience and unless I’m puzzling something out hands on (like learning to edit a video or code a website), I find that I’m more attentive when I’m in a room with others. Plus, I often learn from other student comments as well as their prompts (for example, if I see everyone else picking up a pen to take notes, I’m more apt to follow suit).

In many ways, online-offline learning is false dichotomy. One hundred percent online, virtual learning will never adequately substitute for college or law school or CLE.  At the same time, offline learning can be costly and potentially limiting since some bar associations simply don’t have access to local experts on certain topics.  Co-viewing is a potential hybrid solution.

A week or two ago, I observed that many lawyers are opting to use a combination of platforms for storage, practice management, client portals and other law office functions rather than settling on a single general solution.  The rise of API’s, or application programming interfaces that enable different systems to communicate seamlessly have been driving  the integration trend.

Though reliance on multiple platforms can get costly, users also enjoy substantial benefits. Significantly, rather than settling for a generic platform that performs a bunch of functions serviceably, users can combine their favorite tools to build an ideal system customized for their practice and preferences.  Moreover, while this type of integrated system costs more than an out-of-the-box, one-size-fits-all solution, it’s far less expensive than building a practice system from the ground up. Integration is also a win for new companies and innovation because it creates a market for a  spectacular discrete products (or minimal viable product in Lean StartUp parlance) thereby reducing barriers to entry.

Could the concept of API translate to law practice? Absolutely. Not only that, it’s an idea that solo and startup firms ought to aggressively explore.  For example, let’s say that you’re an ERISA whiz looking to expand your practice.  In addition to maintaining a unique presence online and in your industry, you could also offer your services on an “API” basis – as a value add to law firms involved in mergers or  general employment issues, or to HR firms who don’t have counsel on staff. The partnering firm would save a bundle by by having access to an ERISA expert without paying a full time salary, plus it wouldn’t have to fear that you’d poach other matters since your practice is limited to ERISA. Meanwhile, your firm would generate from access to a steady stream of business from larger sources rather than constantly marketing to individual clients.

But the API concept isn’t limited to high-end bespoke services either. A bankruptcy lawyer and estate planning lawyer could team up with family law firms if bankruptcy or revised estate planning needs to be explored in the context of a divorce. Moreover, firms could offer “API-editions of their service – a scaled down, virtual version so that a client wouldn’t be burdened with the cost of three lawyers (even if additional services were provided).

If you’re a regular reader, you know that I’ve often griped about 21st century advancements like  attorney bidding sites or listing sites not because I’m trying to defend lawyers’ turf, but rather, because I’m  skeptical as to whether these sites really expand access to law in a meaningful way.  As I’ve written here, many of these sites tackle low hanging fruit – like helping clients locate lawyers online or driving down lawyers’ fees – but they don’t address many of the other costs that drive the price of legal services such as inefficient courts that persist in requiring multiple paper copies even when they’ve transitioned to e-filing and pricey transcripts (as much as $5-$8/page) needed for depositions or appeals.

As a lawyer who frequently handles appeals before federal circuit courts, it’s discouraging for me to tell clients that they may have to shell out anywhere from two to four thousand dollars simply to cover the cost of preparing eight bound copies of an initial and reply brief, along with eight copies of joint appendix that depending on the size of the record, could amount to 1500-2000 pages.  These out-of-pocket costs alone are often scary enough to deter clients from even thinking about appeals — which is unfortunate since in  many situations, the legal work itself isn’t all that complicated either because the appeal can be limited to a discrete issue or because many of the issues were already thoroughly researched and argued in the proceedings below.  In fact, I’d guess that many lawyers – myself included – might be willing to take on an appeal that involves a juicy issue on a partial contingency or even pro bono basis so long as we weren’t on the hook for the rather considerable out of pocket costs as well.

So I got to thinking – what if lawyers could subsidize the out of pocket cost of briefs and even the legal fees with paid advertising from sponsors who support the clients’ cause? With legal briefs now widely posted online by lawyers at numerous courts and agencies (where they are often linked to by the press or bloggers)not to mention more social sites like JD Supra, a sponsor could at once generate good visibility online and good will from its customers.

I know it sounds crazy (even my ordinarily taciturn husband derided the concept cheesy), but let me make my case to the court of public opinion.  First – would there be a market for sponsorship of briefs? I think so.  Many briefs at the appellate and Supreme Court level deal with broad policy issues – privacy, data protection, copyright , defamation in an internet age and more – that are important to companies and their customers. Sponsorship would give companies an opportunity to show that they support a particular position. Likewise, cases involving zoning issues or eminent domain or local curfews or tax laws may not capture national attention, but matter within a community – thus making the briefs of interest to local businesses.  And while many times companies do weigh in on these issues by filing amicus briefs, it’s far less expensive to sponsor a brief than to go through the trouble of preparing one.

Starting and running your own law firm allows you the autonomy to pick and choose the kinds of cases you want to handle. But what happens when there’s no apparent market for the work that you love or where a market exists but the work isn’t financially viable?

A lack of market refers to a situation where  there simply isn’t enough paying business to sustain a practice, irrespective of whether the lawyer engages in effective marketing and or has a stellar reputation.  Lack of a market is frequently common with emerging industries – (as I learned when I was targeting ocean energy companies) of very narrow niche markets comprised of clients with limited resources (like representing student bloggers).  Sometimes a lack of market might be geographic – such as a lawyer with oil and gas leasing experiencing who sets up shop in a state that doesn’t have any oil or gas resources or a lawyer who represents scuba dive operators in a landlocked state (and limits the practice to that jurisdiction).

In most cases, where there’s a lack of market for a practice area, there’s also a lack of financial viability. But not always. Consider for example, Tom Goldstein’s wildly successful Supreme Court practice. The Supreme Court hears just 77 cases a year – but at least a few of these cases involve deep-pocketed players able to shell out $100,000 for representation – which means that one case alone, if you’re lucky enough to find it, could theoretically sustain a bare-bones practice for a year (assuming no other income).  By contrast, in other cases, sometimes there’s no market where there’s potential demand, but the business model isn’t financially viable – for example, a completely online, virtual practice handling unbundled matters only or a purely contingency-based practice in an area like Section 1983 where many public entities won’t discuss settlement until after summary judgment where a large percentage of cases are dismissed or representation of a demographic that’s too poor to qualify for legal aid but doesn’t have much extra to hire a lawyer.

So what’s a lawyer to do? Legal marketers won’t help here (though they may not admit it) because they don’t create markets but rather, come up with ways for lawyers to access existing markets.  In fact, that’s why you’ll find most of the successful legal marketing operations assisting lawyers in building consumer based practices – personal injury, estate planning, bankruptcy, DUI, family law and the like. In most jurisdictions, there’s still enough consumer demand to sustain a reasonable, if not mid-six or seven figure practice in these areas, which makes them low hanging fruit for many marketing operations.

More than three years ago, I wrote one of my most popular and widely-circulated blog posts, Would You Work on Spec? Why Should Your Logo Designer.  My post listed several disadvantages to design contest sites like 99Designs (potentially poor quality submissions and possibility of stolen work), but mainly, I griped that it was hypocritical for lawyers to ask designers to work on spec – to prepare and submit end-run logo designs on the chance of a fee – when lawyers wouldn’t work on spec themselves.

Fast forward, and crowdsourcing sites like 99 Designs  are thriving .  Even more, design contest sites are frequently recommended as a design solution for lawyers by reputable LPM experts like
Lee Rosen  or Heidi Alexander of the Massachusetts Law Office Management Assistant Program.  Most recently, Allison Monahan, a lawyer and creator of described her positive experience  in using 99Designs for a logo for her upcoming Catapult 2013 project.

All these experts can’t be wrong, I told myself.  Plus, I’ve had middling success with logo design, often spending considerable sums of money on results that don’t thrill me, but which I’ve accepted simply to avoid running up the meter any further. In that regard, 99Designs is awfully appealing; for a $200 or $300 prize, I could attract multiple designers who would provide endless iterations of logos.

Still, I can’t shake the nagging feeling that using 99Designs is hypocritical because (except for pro bono), I don’t work for free. While it’s true that lawyers (myself included) frequently devote considerable time to responding to RFPs, a bidding scenario differs because what’s being proposed is a concept, not the final product that the customer will purchase. The same is true for the presentations that ad agencies put on for prospective clients – they sell an approach, but not the actual campaign to be implemented.  By contrast, on 99Designs, contest participants aren’t asked for a concept, but for an end product. And then, when a submission suggests the right approach, but not the ideal look, designers are asked to refine and modify the logo to stay in the running. By the time the contest ends, the sponsor has several final products to choose from, yet only one designer gets paid.