The American Bar Association (ABA) is mired in a slump. The once-venerable organization, about to mark its 140th birthday, is awash in bad news. Membership is declining; revenue is down; last year’s operating deficit was $7.7M, prompting an $11M budget reduction; lay-offs and offered buyouts are rampant; and a former-employee embezzled $1.3M from the organization. The ABA’s influence within and outside the legal industry is waning. To borrow from Queen Elizabeth II, it’s been an “annus horribilis” for the ABA.
Why has the ABA lost its mojo and what—if anything—can it do to restore it? A recent article by Aebra Coe in Law 360 offers several explanations for the ABA’s decline– competition from a plethora of targeted legal associations, the surge of online networking/social media, technological innovation, and the ABA’s aging membership. Those reasons certainly hold water, but they don’t go to the heart of the ABA’s problem.
The ABA is Static in a Dynamic Age
The biggest reason for the ABA’s decline—not cited in Ms. Coe’s article—is the organization’s support of the legal guild. The ABA has failed to use its clout to revise provincial, anachronistic, and protectionist regulations that fail to serve those in need of legal services, existing legal consumers, and society. The current regulatory framework it has doggedly sought to preserve perpetuates the myth of lawyer exceptionalism by separating the world into “lawyers and ‘non-lawyers.’”
This is the era of the consumer. The ABA is operating in the age of the lawyer. The global financial crisis, rapid technological advances, globalization, and digitization have spawned disruption across multiple industries. The disruptors have harnessed capital, technology, and an agile workforce to create new business structures and delivery models that offer customers greater access, choice, and transparency. Rather than lead efforts to align the legal profession/industry with the new business order, the ABA is staunchly defending law’s status quo.
The ABA’s influence has also been diluted by its lax enforcement of law school accreditation and a reticence to advance all-in legal education and training reform. Two years ago, the ABA was called to task for its failings. The National Advisory Committee on Institutional Quality and Integrity (NACIQI), a branch of the Department of Education, rebuked the ABA for its lack of attention to student achievement as well as a range of other deficiencies. The NACIQI chronicled findings that have dogged the ABA and law schools for years– skyrocketing tuitions, enrollment of students despite an expected inability to pass the bar, misleading job statistics, and massive student debt. Paul LeBlanc, a member of the NACIQI, described the ABA as being “out of touch with the profession.”
Mr. LeBlanc’s harsh assessment sums up the ABA’s core problem: it is out of touch with the profession, students, legal consumers, and the tens of millions in need of legal services. The organization’s resistance to meaningful change has produced dire consequences in legal education—mushrooming student debt, decreased law school applications/enrollment, graduates that lack both practice skills as well as augmented ones that include business basics, data analytics, client management, marketplace knowledge, project management, and collaboration among others.
The ABA’s resistance to regulatory reform and its one-size-fits-all approach to ‘PeopleLaw’ (a/k/a the retail law) and the corporate segment has diminished its standing and credibility in both market segments. The ABA has repeatedly opposed regulatory reform that would expand accessible, affordable, legal services to millions in dire need. It’s rationale for doing so—protecting the public—is ludicrous. Professional oversight is certainly important, but it should not be conflated with regulation of the business of law and how, by whom, and from what funding sources legal services are delivered. Many legal services do not require lawyers and should be delivered by paraprofessionals and machines. How can the ABA rationalize ‘protecting the public’ as a basis for regulatory stasis in a country where approximately 80% of the populace and 65% of business cannot afford lawyers? The U.S. Census Bureau’s Economic Census statistics reveal that the PeopleLaw sector shrank by nearly $7 billion (10.1%) between 2007 and 2012. That decline is likely to continue when the next census is reported. Translation: the ABA is standing pat even as a bad situation gets worse.
The ABA’s reluctance to engage in re-regulation has prompted corporate legal consumers to engage in regulatory self-help. That’s why so much work has migrated from law firms to in-house legal departments, law companies (a/k/a ‘alternative legal service providers), and legal tech companies. The ABA has failed to adapt—much less to lead—the fundamental shift in how corporate legal work gets done. The result is further erosion of the ABA brand and relevance in the marketplace.
The ABA’s Good Work is Eclipsed by its Defense of the Guild
The ABA has made many positive contributions to the profession and the society it serves. Its support of veterans, immigrants, and other at-risk groups is admirable. So too are its efforts to encourage pro bono work, diversity, and many other important causes. It is taking steps to better align itself—and the profession– to a changing market. The Center for Innovation and its appointment of Dean Dan Rodriguez as Chair is an example. But the ‘good news‘ efforts are overshadowed by the ABA’s historical inability to reconcile the practice and business of law; the profession and the industry; the misaligned interests of traditional law firm partnerships and consumers; legal representation and affordable legal services; and self- regulation that serves lawyers, not legal consumers and society.
The ABA’s decline can also be explained by its failure to adhere to the core goals of its Mission Statement: (1) serve members; (2) improve the profession; (3) eliminate bias and advance diversity; and (4) advance the rule of law. Members are obviously not being served—their ranks once constituted half of all licensed U.S. attorneys and now the percentage is less than 25%. The legal profession’s image is eroding; lawyers were recently ranked among the least trusted of all vocations. Meanwhile, the legal profession has sky-high rates of divorce, suicide, alcohol and drug abuse, stress-related illness, and job dissatisfaction. Notwithstanding its efforts to advance diversity and equal opportunity, the ABA presides over a profession that has a glass house problem. Female attorneys still are not paid the same as males, minority attorneys do not represent a proportionate share of senior positions, and the poorest law students –often minorities–are bearing the heaviest burden of law school debt.
How can the ABA claim it is advancing the rule of law when more than 80% of Americans cannot afford legal representation and most small businesses cannot, either? As Derek Bok, a lawyer and former President of Harvard University remarked, “There is far too much law for those who can afford it and far too little for those who cannot.” The ABA has stood by while State Bars have relentlessly—and unsuccessfully– attempted to drive innovative providers like LegalZoom and Rocket Lawyer out of business with baseless unauthorized practice of law (UAL) claims.
Taps for the ABA?
Short answer: yes– unless the ABA engages in a reboot. It must recognize, accept, embrace, and boldly lead a profession/industry that is VERY different than it was even a few years ago. To be a potent voice of and for that industry, the ABA must step up or face a painful slide into the abyss. It must use its regulatory clout to achieve desired outcomes—broad legal access, legal education designed for the needs of the marketplace, improved legal delivery, diversity, an agile workforce, inter-disciplinary practice that provides holistic solutions to complex problems, legal professionals, some—but not all—of whom are licensed lawyers, using capital to scale and provide broader, improved access to legal services, and opening up legal delivery to a range of new delivery models that provide consumers greater access, choice, transparency, and understanding of the legal process.
The legal profession/industry needs a strong voice, and the ABA could serve role. It must champion—not resist–new tools, structures, delivery models, inter-disciplinary practice, capital, and legal professionals—not confined to licensed lawyers—to address law’s wicked problems. It must realign itself with the public and consumers, not pander to lawyers. That transformation will not be easy. It will require guts, leadership, new blood, and the realization that the ABA is experiencing its ‘Kodak moment’—and not the smiling, happy one.
The ABA’s marginalization comes at a time when the rule of law is under siege. It is imperative not only for the profession/industry but also for society that the legal profession speaks with clarity, unanimity, credibility, and transparency. It’s failure to do so will be one more nail in democracy’s coffin.
The ABA has many dedicated officers, staff, and members. It’s time they look at the big picture instead of mollifying members. The ABA’s success or failure is important to a far broad constituency than its remaining members. We should all be rooting for its successful turnaround.