DeStefano, Lawyers Influencing Nonlawyers: Too Many Cooks in the Kitchen or Stone Soup?

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The U.S. legal profession is in need of innovation and innovation comes from open, collaborative, and diverse environments. Yet, the rules regulating the U.S. legal profession foster a closed environment, one that discourages nonlawyer influence on lawyers and alliances between legal and non-legal professionals. The Model Rules of Professional Conduct, the bar licensing requirements, the application of the work- product doctrine and attorney-client privilege, and even the way law firms structure themselves consistently impede an open multi-disciplinary approach. Instead, they favor a closed environment and/or an exclusive one-on-one relationship between attorneys and their clients. In some way or another, they support the notion that when lawyers work with nonlawyers, there are too many cooks in the kitchen.

In light of our growing understanding of other fields, it may be time to reexamine some of these rules and their underlying assumptions. First, they do not represent the way many U.S. lawyers actually practice. Second, in an economic downturn, where the line between what is business and what is law is anything but clear, such tactics may limit lawyers’ range of business opportunities. Instead of protecting lawyers’ economic futures, it may provide the impetus for nonlawyers, who want a piece of the lawyers’ pie, to innovate. Essentially, an environment that fosters input from nonlawyers is better than a closed one and the legal profession’s continued attachment to rules and structures that compel closed environments and severely restrict the influence of nonlawyers on lawyers (at least in the commercial context) may leave the U.S. legal profession woefully behind other countries, and U.S. lawyers with a smaller piece of the pie.

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DeStefano, Lawyers Influencing Nonlawyers: Too Many Cooks in the Kitchen or Stone Soup?

  1. 1. Lawyers Influencing Non-Lawyers: Too Many Cooks in the Kitchen or Stone Soup? Michele DeStefano Founder, LawWithoutWalls Professor, University of Miami School of Law July 2012Lawyers Influencing NonLawyers, 80 Fordham Law Review, 2791 (2012)
  2. 2. Think of the U.S. LegalProfession as a Castle
  3. 3. Beautiful Ominous Structure Glisteningin the Distance
  4. 4. Young College Graduates AspireTo be Admitted
  5. 5. International Lawyers TravelLong distances to ―Visit‖
  6. 6. But the Castle is Protected by a Moat:Keeping Non-Lawyers Out
  7. 7. The Moat that Protects the Castle is Made Up of:• Bar Licensing Requirements• The Model Rules of Professional Conduct• The ―Theory‖ of Self-Regulation
  8. 8. One Would Think it isis Protectedby An Army
  9. 9. After All, it’s a Castle !!!
  10. 10. But Instead, it is Protected by Lone Rangers
  11. 11. In the United States,
  12. 12. The Rules
  13. 13. The Regulations
  14. 14. The Way Lawyers Practice
  15. 15. Support Closed Environments
  16. 16. The Independence of the Lawyer
  17. 17. From ALL Others Except ...
  18. 18. The Client
  19. 19. Lawyers are the Knights in Shining Armor
  20. 20. There are So Many Rules Restricting Influence ofNon-Lawyers on Lawyers1.8 5.4 1.6Financial Professional ConfidentialityAssistance Independence5.5 The Attorney- Work ProductUauthorized Client DoctrinePractice of PrivilegeLaw
  21. 21. Rules Around Independence Form Boundaries Between Lawyers and Non-Lawyers
  22. 22. Rules Support Non-Collaborative, Traditional Legal Practice & Law Firm Structure
  23. 23. The Lore of ProfessionalIndependence is Introduced and Honed in Law School Only LawSocratic Classes SoloMethod 1/100 Projects Me Myself I
  24. 24. On the One Hand . . .
  25. 25. This is Not Surprising
  26. 26. Given thatThe Rules Regulating Lawyers Focus on the ―I‖
  27. 27. FocusOn the Individual And Independence
  28. 28. On the Other Hand . . .
  29. 29. It is Very Surprising
  30. 30. Some of the BiggestBreakthroughs are from the Law AND Movement
  31. 31. Yet, The Rules The RegulationsThe Structure of Law Firm Practice And Even Legal Education
  32. 32. All SupportThe Notion of ProfessionalIndependence
  33. 33. All Support The Notion ThatWhen Lawyers Work With Non-Lawyers,
  34. 34. There are Too ManyCooks in the Kitchen
  35. 35. True
  36. 36. The rules and regulations supportingthe independence of the lawyer aredriven in part by a belief in thebenefits of a unique and confidentialrelationship between lawyer andclient—possibly one of the mostvaluable things lawyers offer toclients.
  37. 37. True
  38. 38. The rules and regulations areundeniably motivated by a legitimatedesire to protect clients, thepublic, and the professionalism andintegrity of the legal profession byensuring lawyers’ independentjudgment.
  39. 39. True
  40. 40. Select U.S. Law Schools, U.S.Lawyers, and U.S. Law Professorshave begun to rethink the value ofinterdisciplinary interchange andhave developed programs andpractices that involve collaborationwith non-lawyers . . .
  41. 41. Examples of DisruptersBill Henderson, Indiana University, Full Year Legal ProfessionCourse for 1-LsDavid Wilkins, Harvard Law School 1-L Problem SolvingWorkShopMichele DeStefano and Michael Bossone, Miami LawLawWithoutWallsElizabeth Chambliss & David Wilkins, New York Law Schooland Harvard Law School Future EdTanina Rostain and Mitt Regan, Georgetown LawTechnology, Innovation, and Law Practice ExperientialSeminarRenee Knake and Dan Katz, Michigan State
  42. 42. But the Problem is . . .
  43. 43. U.S. Rules and Regulations are Still Designed to Restrict Collaboration with Non-Lawyers
  44. 44. And Despite the Rules, This is NOT How Today’s Successful, Global Lawyers Practice Law
  45. 45. This is NOTHow Real Change Occurs
  46. 46. Multi-DisciplinaryOpen Collaboration isthe Key to Innovation
  47. 47. Inaccurate Conception that Inventions are EurekaMoments by Scientists Alone in a Lab
  48. 48. Instead, the ―True‖ Story is the Story of Stone Soup
  49. 49. Really, really good ideas, successfulinnovations, and creative solutionsoften result from open and diverseenvironments in which people fromdifferent disciplines, varying expertise,and multiple perspectives give ―what[they]’ve got and put it in the pot.‖HEATHER FOREST, STONE SOUP 28 (Susan Gaber illus., 1998)
  50. 50. Consider Apple’s Development Cycle: ―More Like a Coffeehouse Than an Assembly Line‖STEVEN JOHNSON, WHERE GOOD IDEAS COME FROM: THE NATURAL HISTORY OF INNOVATION 163 (2010)
  51. 51. A Kaizen:More Creative, Efficient, Effective Solutions
  52. 52. Collaboration with AnyoneInterested in a Relationship Inside or Outside the Corporation
  53. 53. ―A World Where a Diverse Mix of Distinct Professions and Passions Overlap is a World Where Exaptations Thrive.‖STEVEN JOHNSON, WHERE GOOD IDEAS COME FROM: THE NATURAL HISTORY OF INNOVATION 163 (2010) STEPHEN JAYGOULD, THE PANDA’S THUMB: MORE REFLECTIONS IN NATURAL HISTORY 19–20 (1980)
  54. 54. What is Exaptation?Exaptation occurs when something isborrowed from one field and used tosolve a problem in a totally unrelatedfield. In other words, innovation oftencomes from ―refurbished‖ parts asopposed to newfangled creation
  55. 55. Gutenberg’s Printing Press Used Mechanics of Wine Screw Press
  56. 56. Francis Crick Discovered DNA Replication by Applying HowCopies of Sculptures are Made
  57. 57. Incubators Are Made from Refurbished Toyota TruckParts for Third World Countries
  58. 58. But the Most Innovative &Successful Entrepreneurs have Broader More Diverse Social NetworksStanford Business School Professor Martin Ruef
  59. 59. These entrepreneurs weresuccessful because theyparticipated in multi-disciplinarycollaboration. They ―were able toborrow or co-opt new ideas fromthese external environments and putthem to use in a new context.‖STEVEN JOHNSON, WHERE GOOD IDEAS COME FROM: THE NATURAL HISTORY OF INNOVATION 163(2010)
  60. 60. Fact: Many Famous Inventions were Serendipitous
  61. 61. However, just as Stone Soup is notmade from stone, serendipitousinnovations are not serendipitous.They occur because an environmentexists that fosters connectionsamong diverse parts, diversedisciplines, and diverse people.
  62. 62. Yet The Rules and Regulations Structuring the U.S. Legal Profession InhibitMulti-Disciplinary Collaboration
  63. 63. InhibitCreation of Environments that Foster Serendipitous Connections
  64. 64. The U.S. Legal Profession’sRules Reject the Story of Stone Soup
  65. 65. In favor of a Fable in which the Individual Knight Saves the Day
  66. 66. But A Single Knight Cannot Competewith Modern Technology and An Army of Professionals
  67. 67. In an economic downturn, instead ofprotecting lawyers’ economicfutures, protectionist rules mayprovide the impetus for non-lawyersand lawyers in other countries toinnovate. . .
  68. 68. For Non-Lawyers to Try to Get A Really Big Piece of Lawyer’s Pie
  69. 69. Innovation is Already Happening in the UK and Australia• Outside Investment in Law Firms• Litigation Funding• On Line Legal Services by Non- Lawyers• Legal Services Partnerships between Lawyers and Non- Lawyers
  70. 70. If it is true that ―we become the stories we tell about ourselves,‖Ian Craib, Narratives as Bad Faith, in THE USES OF NARRATIVE: EXPLORATIONS INSOCIOLOGY, PSYCHOLOGY, AND CULTURAL STUDIES 64
  71. 71. Then it is Time to Take Off Our Armor and Embrace a New Narrative
  72. 72. The time has come to rethink theU.S. legal profession’s rules andstructures that, in the name ofProfessional Independence, weredesigned to narrow exposure to, andinfluence by, non-lawyers.
  73. 73. Only Then,Will the U.S. Legal Profession Benefit From Exaptation
  74. 74. Only Then will the U.S. LegalProfession Fulfill its Potential to Innovate and to . . .

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