The Future of the Legal Profession Impacts Democracy with Ray Brescia

Episode Notes

Transcript

Ray Brescia:

If you look at the events of January 6th or efforts to overturn the results of the 2020 election lawyers, were at the center of those efforts. I do think that the when at any cost mentality is one that is inconsistent with the rules of ethics for lawyers, there are some consequences. The system we have in place is almost exclusively based on punishment after the fact.

Announcer:

That’s today’s guest on SideBar Ray Brecia, author of Lawyer Nation, the Past, present, and Future of the American Legal Profession. SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Laine’s Jackie Gardina and Mitch Winick

Mitch Winick:

Jackie. It should be no surprise that the legal industry and the practice of law are not immune to the social, political and technological changes that are underway in our country. We’ve previously talked about these issues on SideBar, however, today we’re going to look specifically at the future role of lawyers and the practice of law. We have as our guest today, Ray Brescia, the author of Lawyer Nation, the Past, present, and Future of the American Legal Profession. Ray is the associate dean for Research and Intellectual Life and the Honorable Herald r Tyler professor in law and Technology at Albany Law School.

Jackie Gardina:

Mitch, one of the most interesting aspects of race work is his effort to consider how AI and technology is going to fundamentally change how lawyers work and perhaps even more impactful how clients are going to access legal services. Ray’s upcoming article in the Florida State University Law Review is titled, what’s a Lawyer for Artificial Intelligence and Third Wave Lawyering. Ray is a prolific writer with several additional books to his credit and over 50 law review articles. Welcome to SideBar Ray.

Ray Brescia:

Oh, thank you so much for having me, and thank you for that very warm introduction.

Mitch Winick:

Ray, in several SideBar episodes, we’ve discussed whether the legal profession’s doing enough to police lawyers and judges and to hold them accountable for unethical and what we’re now seeing, what we think are anti-democratic actions. Before we begin discussing the future of lawyering, let’s talk about current behavior within the profession. You make the case in your book that this is not a new issue. Talk to us about whether you see any difference between past crises in the profession and the ones that we believe we’re experiencing today, and whether our institutional response by our profession is sufficient.

Ray Brescia:

I see the profession facing a series of crises right now, and the goal of the book was to say, okay, how has we dealt as a profession? How have we dealt with crises in the past? When have we faced similar crises, and what have we done that has been effective to address those crises? Frankly, on the last question, I’m not sure I found many instances where we did things effectively. You could go back to whether it’s the Enron scandal or the Watergate scandal with lawyers at the heart of all of them, and most of the time what we’ve done is we’ve tinkered around the margins of the rules, sort of moving a comma here, adding a new phrase there. I kept going back and trying to say, okay, well, when did we really make some fundamental changes? And the sort of time period I focus in on is the turn of the 19th to the 20th century where we really created the modern and the contemporary legal profession.

If you think about the institutions, when we think about the legal profession, it’s law schools, it’s bar exams, it’s law firms, it’s having a code of ethics, it’s public interest bar, all these things that if you ask somebody, well, what do you think about when you think about the legal profession other than the high cost of legal assistance, they’ll probably name these things. None of these things existed prior to the turn of the 19th, the 20th century, the profession was almost exclusively white and male. There were no real bar exams. What we did in facing what we saw as a crisis of professionalism at the turn of the 19th to 20th century, we instituted these components of the profession to try to regulate entry to and practice in the profession. Those ideas, barriers to entry and codes of ethics and tools of punishment. These are the main ways that we regulate and control attorney behavior, but we seem to be slipping a little bit, and one of the crises I see the profession and the nation facing right now is the crisis of democracy and rule of law. If you look at the events of January 6th or efforts to overturn the results of the 2020 election, lawyers were at the center of those efforts, whether it was former Mayor Rudy Giuliani bellowing on the ellipse that he demanded trial by combat or the mere fact that people thought that the vice president could overturn the results of the election. That was a scheme cooked up by lawyers,

Mitch Winick:

To your point, not just cooked up by lawyers, and it’s not just one or two. There are over a dozen of them that have either been indicted or have faced sanctions within their respective bar associations. These are not unknown lawyers without skills. These are people that the three of us, I’m sure would’ve expected to know better based on the nature of their practice and their skills. And yet here we have a dozen or more of them. It’s shocking.

Ray Brescia:

Yeah, and you’ve got Jeffrey Clark, a lawyer in the Justice Department, John Eastman, a former law school dean. You would think that they would know better, but I do think that when at any cost mentality is one that is inconsistent with the rules of ethics for lawyers, certainly they face sanctions. They’re facing disbarment. Mayor Giuliani’s lost a civil action to the tune of $150 million or so. There are some consequences. The system we have in place is almost exclusively based on punishment after the fact. What is to stop the next wave of lawyers? If someone doesn’t like the results of the 2024 election, the legal profession has a role to play in doing its part in trying to prevent that from happening.

Jackie Gardina:

I actually want to talk a little bit more about the 2024 election and attorney’s role in that election or post-election, the a, a Task Force on democracy just issued a report that provides both the ethical obligations of an attorney when it comes to supporting democracy and a blueprint for what lawyers can do to support democracy in the rule of law. And you’ve expressed concern about 2024 and the role lawyers may play in undermining trust in the election, and a report is nice, but as you noted earlier, it’s been four years since it happened originally, and we’re just now starting to see some of the consequences take place. What should the A, b, A and theBar associations be doing to prevent these actions from happening at all?

Ray Brescia:

That’s a great question. I don’t know that I have the best answer. I’ve called for some recognition in the rules that not all rule violations are created equal at present. We have Rule 3.1 that says basically tracks the federal Rule 11, very similar language about not filing frivolous claims or claims that don’t have a good faith argument for the reversal modification of existing law. But as I said, every violation is seen sort of equally. You fabricate a doctor’s report in a medical malpractice case to get a few thousand dollars more for your client that’s submitting false evidence, that’s making a false claim. You try to overturn the results of a democratic and appropriately run election and undermine our democracy as we know it. Those are both seen in the eyes of the rules as, oh, those are just violations of Rule 3.1. I think we should specify that threats to the rule of law and democracy should be given higher sanctions and we’ll be taken more seriously. Nowhere do we say that not all violations of the rules against frivolous cases are created equal. We embrace the rule of law in the preamble to the rules, which is nice, but I think we should bake it into the rules of practice as well as the rules, the literal rules of procedure in federal rules of civil procedure in state law. We should note that more serious infractions that are contrary to the rule of law and seek to undermine our democracy deserve more serious punishment.

Jackie Gardina:

And would you say as part of that, the sanction could even be pre due process, so a temporary suspension of a license in cases when it involves undermining democracy pending a trial or pending theBar process going through? Because it seems like we’re still back at the after the fact issue, even my suggestion is after the fact issue, but it has a more immediate effect.

Ray Brescia:

Well, I think that there’s three different moments where you could do something. One is to strip a lawyer of a right to do something before he or she does it. You could act quickly to suspend somebody when they do it immediately when they do it, or you could punish them after the fact. I don’t think we’re in a place where you said without due process, I don’t think we can do that. This isn’t minority report. We don’t have precogs who can say, oh, this person’s about to violate the law and I’m thankful that we don’t have that. In Rule 11, we have what’s called the safe harbor provision that you could file a lawsuit and you literally can’t get sanctioned for 21 days under Rule 11 if you withdraw the offending paper and several of the cases that happened that the case was filed and then withdrawn before the Rule 11 sanctions could be imposed.

It’s not to say courts are without power, they have power and it’s called their inherent power. So courts also have inherent powers to take actions outside what Rule 11 specifically says such that you could imagine a case being filed, a court looking at it and saying, this is not going to get to rule 11 because I have a sense that you lawyer are going to withdraw this case, but you’re trying to get your headlines, you’re trying to muck up the works. You’re trying to delay the certification, which is exactly what John Eastman said he was trying to do with a little violation of the law. He said he was trying to delay the certification even though he knew that his arguments were baseless. So you could get a case where the court says, I see what you are doing and I’m going to sanction you for doing it using my inherent powers. There’s an old saying, right, a lie gets halfway around the world before the truth gets its boots on. Well, I don’t think courts should wait if they get a case that is patently frivolous, that could result in mucking up the election, that they could take swift action, dismiss the case, and even threaten sanctions against the lawyers and not having to wait for that 21 day waiting period.

Mitch Winick:

We are going to take a short break from our conversation with Ray Brecia, the author of Lawyer Nation, the past, present, and Future of the American Legal Profession

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Jackie Gardina:

I want to go back to some of those barriers to entry that you talked about, that at the turn of the 19th, 20th century, the legal profession started to create more barriers to entry in order to protect the public, or at least that was the story they told themselves. So your book offers a fascinating history of the exclusive and excluding nature of the legal profession and really how little has changed since the nation was founded. I love the quote from Alexis de Tocqueville in the 18th century that you use, where he observes scarcely any question in the United States, which does not become sooner or later a subject of judicial debate. And he noted this in part to establish the power of lawyers in American society. So in the 18th century, lawyers fought to exclude what we call non-lawyers from the profession with the same passion as lawyers in the 20th century are now doing, and we’re in California where there’s been lots of discussion and pushback about even changing theBar exam. What do you think of efforts in Washington, Oregon, Texas, and other states to allow legal professionals who are not licensed attorneys to represent clients and provide certain legal services?

Ray Brescia:

Tocqueville saw that we then fast forward to the end of the century and the American Bar Association, which was a very elitist group, only white men could be members of it. They were formed in 1878 by wealthy lawyers. Here are some of the things that they wrote into the first cannons of legal ethics. First that lawyers couldn’t advertise. I’m not sure how that protects the public. So that’s number one. Similarly, they baked into those cannons the idea that a lawyer couldn’t share a fee with non-lawyers, and we still have that in our model rules. And then lastly, one of the big things that the profession did with the cannons of 1908 was say that if there were to be contingency fees, which is a standard way that lawyers are paid today, they have to be regulated by the court. Some members, they wanted to ban contingency fees altogether because the sense was who’s paying their lawyers on contingency, people who are injured by railroads, people who are injured on the job in factories, so they try to institute a ban on contingency fees, but they weren’t able to.

Those barriers to entry have an element to them of consumer protection. Certainly they also have a significant element to them, which is monopoly, but not just any lawyers. Lawyers representing wealthy corporations and wealthier clients at the expense of lower income and working poor people whose lawyers might do things a little differently. So first part, I do think there was a consumer protection element to those barriers. There’s a strain underneath those canons that’s a little different than merely trying to protect the public. What public are they trying to protect their client? So that’s number one. Number two. Second part of your question about allowing non-lawyers to engage in the provision of legal assistance, I am all for it. We’re trying it in some communities have identified some of them in areas that are high volume where low complexity and we’re not displacing lawyers. I think we absolutely not only should, but have a responsibility to ensure that people have some kind of guidance.

Jackie Gardina:

Well, I was just going to ask a follow-up question. I find it interesting that you keep saying, as long as we’re not displacing lawyers, I’m wondering isn’t that part of the monopoly problem?

Ray Brescia:

There may be instances where we might displace lawyers. I’m saying that in many contexts we won’t displace lawyers because there aren’t many lawyers there to begin with. Those high volume, relatively low complexity situations where the unrepresented litigant is the overwhelming norm, those are places where we should absolutely go to a model where people who don’t have a full law degree but have enough guidance, training and knowledge to provide assistance. I think that that’s appropriate.

Mitch Winick:

And Jackie and I have experienced this even in our law schools in offering clinics where the local bench and bar sometime get a little huffy about whether we’re offering services that are taking fees out of the mouth of local lawyers, and yet in the cases we handle in our law school clinics, not a one of those would be handled by a local lawyer or law firm because there are no fees that would allow them to do it. So Ray, you probably know that Jackie and I are deans at what are known as Opportunity law schools. We’re accredited by the California Supreme Court, not the American Bar Association. As such, we’ve reduced many of the barriers that have traditionally restricted access to legal education and licensure. In addition, Jackie’s been very active in the efforts to adopt alternative pathways to licensure, and I have been an advocate for California to modify its artificially high minimum passing score on theBar exam to reduce the disparate impact on diversity in the profession, and as you’ve talked about, provide needed access to qualified lawyers in underserved communities.

So let’s move the discussion to the future of legal education and the practice of law. In your book Lawyer Nation, you state the American legal profession faces significant challenges, the changing nature of work in the wake of COVID-19 calls for greater racial and gender justice threats to democracy, the inaccessibility of legal services for the majority of Americans, and the risk of obsolescence owing to new technology. Finally, the disaffection that many lawyers feel towards their work. These are each major disruptors in our profession. So let’s start by talking about technology, one of my favorite things and ai. Can you paint a picture for us of how this is going to change the practice of law and increase access to legal services?

Ray Brescia:

If we go in the way back machine 18 months ago, people were saying, oh, gener of AI is going to take your legal job. Soon thereafter, we got a case out of Manhattan, the Ma Avianca case, where to the greatest embarrassment of the plaintiff’s lawyers, it turns out that chat GPT is an exactly a great paralegal. So I think the rumors of the demise of the legal profession are greatly exaggerated. If I can borrow from Samuel Clemens, we are not at a place where someone can write into a query, a generative AI tool and say, write a legal brief for me to defend me in my eviction case or something like that. Now, there are some absolutely terrific uses for this technology. In particular, generative AI can summarize documents. It can chart out an outline of an argument you might have. It can review lengthy files, tell you what’s in there, but you still need a human in the loop. You still need to double check the work. I’m not worried that generative AI is going to replace lawyers. What I do tell my students though is generative AI might not take your job or artificial intelligence may not take your job, but the law student who understands artificial intelligence might.

Mitch Winick:

We are going to take another short break from our conversation with Ray Brescia and when we return, we will continue to discuss the impact that lawyer behavior, ethical or otherwise is having on our democracy.

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Jackie Gardina:

Ray, I want to pivot a little bit to one of the other things that you talked about in your book, which is that affection in the profession we’re all legal educators, so we are working with what we hope are going to be the next generation of attorneys who are going to play some of those noble roles. You talk about advancing democracy, advancing civil rights, advancing political freedom, and supporting the rule of law, but you have expressed concern about the health and wellbeing of lawyers. Do you think this is primarily created by the corporate culture of large law firms or is there something more fundamental going on about how lawyers see their role in society and how they approach their work-life balance,

Ray Brescia:

Let’s start with what the disaffection is where it seems to be somewhat lessened, and then what might be some solutions for addressing it. Dis affect is real. There’s higher rates of substance abuse, suicidal ideation, anxiety and depression in the legal profession. That is fact. I’m not a psychologist or a researcher, but the psychologist and researchers who research this we’re qualified to say it. It’s pretty evident why is that the long hours thankless work? It may seem at times that may contribute to it. Some research also suggests that lawyers who are doing more public service oriented work and see their work as public service oriented have more job satisfaction. I think that’s also pretty well documented. What I try to argue in the book is that the way out of the crisis of disaffection in the profession is for all lawyers, no matter what sector they’re in, to embrace the public service element of the profession.

And I think it’s an important one, regardless of where you are, what sector you work in so that you understand you have an important role to play as a lawyer in ensuring your clients abide by the law and when possible resolve matters in a way certainly that protect your client’s interest but also keep the community wellbeing in mind. There’s a way to practice that is public spirited, even if one is not in what one might generally consider a public service job. On the practical side, changes we saw as a result of covid made us rethink how lawyers can and where a lawyers should practice. I think if you had polled law deans and partners at big law firms December 1st, 2019 and said, how many of you think you could have you associates or your professors work or teach remotely? Oh my God, we could never do that.

It’s impossible. There’s something about being in person, being in the classroom, having my associates at my feet, figuratively in my conference room as I am negotiating with opposing counsel and they’re just learning how to be a lawyer by osmosis, just by being in the room with me. That changed three months later in March. All of a sudden we had to, by necessity change the way we practiced, and I think that a lot of people realize that, Hey, wait a minute. Actually a lot can be done in different settings, in more flexible settings. That’s a long way of saying I think that embracing the important roles that lawyers play in society and doing it in a more humane way are two strategies for addressing the disaffection in the profession.

Mitch Winick:

Ray, this past year you wrote an article to go back to something you mentioned earlier, teaching to the tech law schools and the duty of technology competence. In your article, you described the initial efforts of certain law schools to accept responsibility to ensure that technological competence of their graduates Jackie. And I don’t need to tell you that legal education is not the most flexible or pivotable environment, and in fact, our accreditation restrictions frequently restrict our changes and our efforts to do things new. A recent article in the Chronicle of Higher Education reported that while almost 80% of university administrators believe that AI will have a positive effect on teaching and learning, fewer than half of their faculty agree. I don’t think either of us are surprised that at that finding, either I’m one who believes that generative AI is actually going to transform not just the practice of law, but how we teach law school who teaches law school and as you’ve said, change the role of lawyers. If done right, I think it’ll dramatically reduce the cost, increase access to certain categories of legal services. Now, that said, it would certainly make the most sense to initiate these kind of changes in law school, but the real question is whether legal education will be a leader or a barrier to the ethical integration of technology and into legal services. So you, Jackie and I are all in legal education. Where do you think we are currently and where do you see legal education going on this issue?

Ray Brescia:

I think we’re still learning what our students need to know as a profession. We have in the duty of competence now, as you mentioned duty to be aware of technology and its risks. I think there’s a version of that competence, which includes to the extent you can use new technologies to reduce the cost of delivering services to your clients, you have a duty to do so. I do think that law schools have a role in teaching students the ways that artificial intelligence and other technologies not only will, but can affect the practice of law, activate these new technologies to deliver more efficient, more effective services. And I think as law schools, we have a duty to teach students that if you look back at the changes that we all instituted after the outbreak of the pandemic, we actually can turn on a dime if we have to.

There were some practitioners in some law schools that struggled with the change, but necessity is the mother of invention. People adapted. If you had said, okay, you’re going to have two weeks to totally transform your practice, what lawyer would’ve said that that was even possible? Well, we had to and we did it. So I do think the response to COD as halting and as imperfect as it was, I love this phrase, positive deviance, that we actually can do something well and quickly when we have to. And so the question is when will we have to, I would like to think that we have to now.

Mitch Winick:

I think you’re right. It is a have to question, but I think some of us would like to push it to the choose to question as you’re talking. It made me think of something over 20 years ago. I remember there was a computer program that was with cartoon characters that would allow students to practice their trial skills and you literally interacted with the cartoon characters as if it were in a Courtroom setting. It’s absolutely possible that AI could create a scenario in which students could practice a trial setting because it could generate judicial responses and witness responses, and that could allow students to have a very intensive experience, one-on-one to do skill building. What do you think about that idea that we’re going to actually have generative AI as an integral part of the instructional team?

Ray Brescia:

The program you’re talking about was something like, I object. I think things like that are great. A lot of this is being done now, videos and questions and get a certain score if you take a exam after, I think this stuff is great, and so I think that we can bake some of this into legal education. We’re already seeing it.

Mitch Winick:

We are going to take one final break from our conversation with Ray Breia and when we come back, we’re going to talk about the impact of technology and artificial intelligence.

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Mitch Winick:

We know that there are potential law students who listen to our podcasts and Jackie and I as law school deans are always out there encouraging people to consider law as a profession. We always try to end on an optimistic note. I know we’ve addressed some challenging issues in the profession, but can you reassure and encourage potential future lawyers that there’s still a need for lawyers and that it remains not just a viable, but a rewarding profession and plays an important role in our society?

Ray Brescia:

The answer to question one is yes. Question two is yes. Question three is yes, and question four is, yes, I wouldn’t do this work if I didn’t believe that. The profession offers people a really rewarding job that can make a difference in people’s lives that I’m hoping that we’ve seen that the practice of law can also be more humane. I think that lawyers in our, and forgive the gender language in our nation of laws and not men, let’s say a nation of laws and not people that lawyers play a significant role in preserving democracy and the rule of law without the rule of law. There’s no need for lawyers. Without lawyers. There’s no rule of law. I think that if you believe in our democracy, if you believe that lawyers can play a role in preserving it, I would absolutely encourage you to think seriously if you’re thinking about law school, that it could be a really rewarding job for you personally. Professionally, I wouldn’t do what I do if I didn’t believe that.

Mitch Winick:

Ray, thank you. We’ve covered a lot of information here and we appreciate not only sharing your thoughts with us about this, but in all the writing that you do and the blog that you have and doing podcasts like this, you’re not just sharing the information. You’re helping advocate on behalf of these deep thoughts, so thank you for doing that.

Ray Brescia:

Thank you for having me and thank you for those kind words. Thank you, Ray. Thank you to all of you for making this possible. I really appreciated it.

Jackie Gardina:

Mitch. One of the things I really appreciated about Ray’s book Lawyer Nation and again, would want to recommend it to anyone really because it’s accessible to even those not involved in the profession, is the history it provided about the evolution of the legal profession in the United States and really anchors that evolution in heart, in the legal profession’s role supporting the rule of law and promoting democracy, and I think as he noted in his book and as we talked about, we are in another inflection point in our profession about whether or not attorneys are going to take seriously and whether or not bar associations and disciplinary actions are going to take seriously attorney’s role and obligations around democracy in the rule of law.

Mitch Winick:

Another point he made Jackie that I really love is along the themes of out of crisis comes creativity, and I think the inflection point you’re talking about goes in a number of directions, and one of these has to do with AI and the application of technology. I actually think I come down even more strongly than he does on it, and I think it’s going to happen even faster than I think he indicates. We’ll see. He’s also very close to it, but there’s no reason that we can’t use the tools that generative AI have to supplement the human skills of lawyers, the analytical skills of lawyers, the reasoning, the empathy, the things that we bring to the profession, and then add to that this tool of generative AI and bring legal services as he talks about faster, more cost effectively and more broadly to more people in more topics. I really do believe that he is exactly correct on those issues.

Jackie Gardina:

It was really interesting to read about how the legal profession has used law school as a barrier to entry into the profession. That is one of the hurdles they put into place, and you and I have really dedicated ourselves to dismantling that barrier. Now, individuals can just access a law school. They can access a law school from their community through technology, and I think that is going to transform the profession in a really positive way.

Mitch Winick:

I think that’s a great topic to end on, which is what is not just the future of law, but what’s the future of legal education because we are the gatekeeper in so many ways. I’m proud of the fact that your school and our school were two of the earliest schools to add hybrid online legal education that did exactly what you said, brought legal education into the communities where the individuals are living and working so that we have more lawyers that look and sound and come from the communities they’re going to go back out and serve.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebars. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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