The American lawyer has been “unloved” since the Seventeenth Century, according to Lawrence Friedman. (“A History of American Law,” Lawrence Friedman, Simon and Schuster, New York, N.Y., 1973 at 82.)  In early colonial America, opposing parties were encouraged to conciliate or arbitrate, not litigate. By the Eighteenth Century, the colonists were no fonder of the legal profession, but needed skilled lawyers to create an orderly system of rights and responsibilities for a rapidly growing population. The demand for skilled lawyers began to exceed the supply.  There were few lawyers in the first place and no American law schools to cultivate a new pool of legal talent. Even legal apprenticeships were rare, because texts for apprentices had to be imported from England at great cost.  American ingenuity saved the day. Justices of the peace, sheriffs, clerks, and even lay people with a “smattering of law” (Friedman at 84) acted as attorneys. Friedman declares, “the unauthorized or underground bar…signifies that the need for legal services has outstripped the legitimate supply of lawyers.” (Friedman at 84.)

            The contemporary legal landscape is littered with many of the same issues that plagued Eighteenth Century America.  As society struggles with rapidly evolving relationships the supply of qualified affordable lawyers fails to meet demand. Not surprisingly, the Net is the Twenty-first Century equivalent of the Eighteenth Century “underground bar” because of its low cost, accessibility, and widespread use.  Kevin O’Keefe, founder of Prairielaw.com, avers that divorce law gets twice the traffic of all other legal matters combined on the Net.  Feeding into the Net’s popularity is the fast growing number of pro se litigants in family court. These two factors alone make family law practitioners highly desirable to Net entrepreneurs.

            Reasons for self-representation remain conjectural, but a majority of pro se’s probably cannot afford lawyers, but do not qualify for free legal services.  Their legal needs also make it impracticable to wait for the few affordable lawyers available.  Those litigants would benefit from an expanded supply of affordable lawyers, but it is unlikely that government or the private sector will dedicate increased funding for affordable legal services.  Other pro se litigants have adequate financial resources, but refuse to pay.  These people may have had an unsatisfactory experience with lawyers, or they may be take-charge individuals who resist handling over control and thrive on information and advice on the Net.

            Whatever the cause, the bench and bar are taking up the challenge of delivering legal services to pro se litigants.  Some professionals embrace technology and the Net.  Others blame the Net for indiscriminately spraying the public with bits and pieces of legal information that falsely encourage litigants to try their hand at self-representation.  Some opt for mandatory pro bono services, or push for legal reform and streamlining rules to make the justice system more accessible.  Others insist upon alternative dispute resolution, or choose to practice collaborative law that eschews litigation and all of its arcane rules.  Resistance comes from those who fear an erosion of standards in the profession and a diminished respect for lawyers or an outbreak of chaos in the courtroom.  Some lawyers and judges obdurately demand that pro se litigants strictly follow the same rules imposed on lawyers to prevent an unfair advantage to pro se’s or a bewildering lack of uniformity.  Consistency is highly desirable, but a rigid adherence to uniformity is an insurmountable barrier to the average layperson.

            While the organized bar struggles over the delivery of legal services, entrepreneurs are pushing lawyers to market on the Net.  Individual firm sites are proliferating today.  In 1995 there were fewer than one hundred lawyers or firms on the Net.  Today there are 14,000 according to the Wall Street Journal (page one, January 15, 2001). Many legal sites are cyberspace referral services.  Shortly after World War II, the American Bar Association endorsed not-for-profit referral services operated by state bar associations.  Not until 1993 were rules promulgated by the ABA for the approximately 300 noncyber-referral services operating around the country.

            Private businesses are setting up unregulated online referral services and legal clinics.  Martindale Hubbell created an online version in the late 1990’s. It did not charge a listing fee to lawyers or a usage fee to consumers.  Martindale Hubbell was not alone in giving away listings and information on the Net.  That was and still is the prevailing norm on the Net.  Users are accustomed to and expect online information at no cost. Until recently, most consumers were also uneasy about giving out credit card information online -- the most expedient method of paying and collecting fees.  Consumer fears have been assuaged to a certain extent since the development of more sophisticated encryption programs and the absence of any devastating breach of Net security, insofar as credit cards are involved.  Lawyers were wary of the technology and possible ethical violations.  In spite of the prevailing Net culture of “everything for free,” consumer unease and lawyer wariness, entrepreneur are busily creating business models they hope will be hugely profitable.

            Legal web sites are trying to generate revenues from lawyers and clients by offering an array of online forms, legal research, legal directories, client screening, and online consumer ratings of lawyers.  Many of the sites, no matter how elaborately packaged, are online referral services.  Unlike the not-for–profit lawyer referral services operated by bar associations, private online services are not exempt from ethical constraints against the unauthorized practice of law and fee-splitting; and in the aftermath of the rapid rise and fall of many Net start-ups, these sites must also become profitable quickly.

            Several business models have emerged in the past two years.  Some start-ups have considered offering reverse auctions, charging clients for posting online descriptions of their legal needs.  Lawyers review the online proposals and then bid for the case.  Reverse auctions may work well for the sophisticated business client, but pose problems for individual clients --even relatively sophisticated clients.  Corporate clients, with the assistance of in-house counsel, are capable of articulating their needs and evaluating prospective counsel’s bid.  Before the dawn of e-commerce, corporate lawyers were submitting written proposals for a prospective client’s consideration.  The Net just offers another means of showcasing corporate counsel’s wares.

            Family law lawyers and their clients are ill-equipped to use reverse auctions effectively.  It is doubtful divorce clients have adequate know-how to draft requests for proposals, or sufficient skill and expertise to cull through various proposals.  Every family law practitioner knows that most clients have unrealistic expectations based on common misconceptions and fear.  Family law lawyers themselves are not accustomed to writing proposals that distinguish their services from competitors’ and are not predisposed to representing clients unless and until they meet in person and establish some rapport.  Most family law practitioners will not invest time in drafting bids for anonymous clients. 

            Instead of reverse auction model, some sites try attracting lawyers by offering online pleadings and documents.  They also perform an online client intake that creates a data base for pleadings and documents.  Sites claim that online screenings also assesses the viability of the client’s claim.  We can only speculate about possible breaches of client confidentiality or conflicts of interest that could arise if the site accepts input from both spouses.  If the current rules of ethics are applicable to web sites then they may have to conduct business on a “first come” basis and decline any data entries from opposing parties.  The canons of ethics may have to ease up on legal web sites, if the organized bar is convinced that doing business online is as integral a part of the law practice.  In actuality, state regulators have not been prosecuting lawyers online, but lawyers may insist upon the written rule conforming to current practice.  Even if the current sites have yet to construct an ethically and financially viable referral service, the Net is here to stay and will change the delivery of legal services.  Some scholars of business enterprises note that pioneering ventures often fail, while the second wave succeeds.  It remains unclear if the sites of the late 1990’s were pioneers, or if the current crop is the longer lasting second generation.

            Rather than offering law practice aids and tools, other sites collect fees and keep track of time and expenses.  In other words, the site acts like an office manager and staff.  Still other legal web sites place their emphasis on the consumer ensuring clients affordable, quality representation and act as electronic intermediaries between lawyers and the prospective divorce clients.  Clients pay a low fixed amount into the site’s escrow account and are assigned to a lawyer.  Lawyers do not pay to join the site’s referral service, but must take assigned cases for a fixed fee.  If the client is not satisfied, the site will not release payment to the lawyers.  Ultimately the lawyer is dropped from the panel if the lawyer fails to perform to the satisfaction of a three or four clients over a several month period.  In theory the lawyer will maintain high ethical and legal standards of practice, but 400 divorces translate into billing rates of less than $100 an hour.  The lawyer has little at stake and not much incentive to accept low-paying cases.

            Web sites must attract competent ethical lawyers, and find ways to reward lawyers for high quality services at below market rates under the low fix-fee model. One start-up is marketing to new lawyers eager to build a practice.  The site’s founders believe their referrals will generate enough revenue to pay the lawyer’s office rent, leaving the lawyer free to pursue more lucrative cases elsewhere.  That would happen only if the lawyer is extremely efficient at processing a large number of low paying cases.  Standardization may be one answer, but hard to accomplish.

            Some Net start-ups take the moral high ground by contending that any legal directory that charges lawyers for listings, as distinguished from an administrative fee, is technically engaged in fee-splitting.  Under that analysis lawyers paying for listings in Martindale Hubbell and the Yellow Pages are guilty of fee-splitting.  A cursory examination shows a lack of prosecution of lawyers advertising in Martindale Hubbell and the Yellow Pages.  For that matter, there are no reported cases of prosecutions of lawyers participating on a multi-lawyer web site for fee-splitting, but it remains to be seen whether these for-profit referral services conform to the spirit and letter of ethical rules.

            American law schools produce thousands of new graduates each year, 70 percent of whom will practice law.  In spite of those massive numbers, too few lawyers are ready, willing and able to handle cases for the average individual. Large urban law firms are moving away from the representation of individuals in favor of institutional and corporate clients.  In the meantime, web sites are obtaining public endorsements from well-known members of the legal profession like Arthur Miller and Ed Koch, and a clean bill of health from legal ethicists.  Endorsements may influence lawyers and consumers who attach greater prestige, quality, and perceived reliability to a web site affiliated with a well known, highly respected member of the legal profession.  One caveat: a recent issue of the Journal of the American Bar Association describes lucrative financial arrangements between the Net start-ups and their ethics consultants.

            A search on the Net shows numerous programs on setting up a legal web site sponsored by local, state and national bar associations.  A presence on the Net will be standard practice in law offices, like telephone listings, but unlike telephone directory, the Net by its very nature invites us to do more than post names and addresses.  It demands a more personal interactive approach.  The Net’s appeal is also a trap for lawyers.  At the moment there is a lack of cogent analysis or commentary on the ethical advantages and disadvantages of participating on a for-profit lawyer referral site, possibly because the concept is even newer than the individual or firm web site. Nevertheless, the for-profit referral site is a natural development in the American legal profession.  Lawrence Friedman describes the American legal profession as the expansion and clustering into large urban law firms in the latter part of the Nineteenth century.  Before the Civil War, law firms typically had no more than three lawyers drawn from the upper classes.  After the Civil War, lawyers came from the middle class, commencing an inexorable trend toward more and more lawyers.  Lawyers could have remained a small elite group.  They chose instead to join large urban firms.

            According to the Twelfth Edition of Barrons “Guide to Law Schools”, fewer lawyers are true sole practitioners today.  More lawyers are either practicing in a firm or sharing office space than ever before.  The trend seems unabated.  Barrons warns prospective law school applicants that the legal profession is increasingly competitive because of the forces from within and outside the profession.  “There is more of a free market now than prior to 1977 when lawyer advertising was upheld by the United States Supreme Court in Bates v. State Bar of Arizona.” (Barrons at 52.) It is inevitable that today’s lawyers come together for financial and marketing clout.  The challenge is in finding the most efficient ethical model.  Many large law firms eschew a family law practice.  If large firms do not provide a comfortable environment for family law practitioners, will the Net provide an alternative venue?

            Family law lawyers, besieged by Net entrepreneurs, face a pressing concern -- do they participate in online marketing, and if so, do they enroll with a for-profit lawyer referral service? In offering to match lawyers and clients on the Net, web sites must attract a critical number of qualified lawyers and clients with valid legal claims and the ability to pay.  If these web sites wish to capture a portion of the transaction fees and costs associated with a lawyer-client relationship, they must assure the lawyer that it is an ethical arrangement and financially worthwhile, and assure consumers they are getting competent legal representation at affordable prices, or in any event, at rates no higher than fees paid off-line. Given the low fixed fees now proposed by several of the existing legal web sites, it seems  economically untenable for lawyers to accept online referrals unless the lawyers act more like a factory worker turning out a standard product with few variations.  Friedman reports that late Nineteenth Century lawyers criticized the development of large Wall Street firms on the bases that they “perverted the legal profession, turning the free independent craftsman into a worker in a factory of law.” (Friedman at 554) Given the alleged Wall Street “factory” culture, perhaps it is no accident that family law lawyers are usually sole practitioners or members of small firms.  Family law lawyers and judges often speak of “crafting” an agreement or pleadings.  At the same time, lawyers acknowledge the usefulness of checklists and standard language.  The “crafting” is usually in the management of client relations and opposing counsel’s demands.

            Family law practitioners may have to recognize that some areas of family law are highly susceptible standardization.  Child support is determined by formula.  A web site now exists that calculates child support under the various state guidelines.  The tax consequences of alimony are readily quantifiable.  Software programs exist to compare and contrast various allocations between child support and alimony.  Assets such as pensions and stock options are divided pursuant to language usually determined by the IRS, pension plan administrators and human resource departments -- not divorce lawyers or judges.

            Even parenting plans follow generally accepted guidelines.  The most straightforward plan provides for reasonable visitation upon reasonable notice.  The drafter of that plan needs little experience or expertise. The more descriptive format provides for particular time slots like alternating weekends, holidays and vacations with dates and times carefully spelled out.  The parties usually have a great deal of input, but could easily fill in blank forms themselves.  Parenting plans sometimes incorporate language on joint decision-making and allocation of parental responsibilities.  Few parenting plans, even the most elaborate, contain language unique to a particular case. More often, drafters use time-honored and time-tested templates.  Again, clients could easily fill in the blanks. 

            Lawyers, of course, perform tasks other than drafting. They are advisors and counselors.  They offer observations and recommendations on the various alternatives confronting a client.  The question is whether lawyers can offer services at competitive rates, or be forced to yield a large segment of the practice to lower paid nonlawyer advisors.  A recent article in “LifeStyles Magazine” (September 2000) describes a consulting business owned and operated by the former wife of a divorce lawyer. After going through her own bitter divorce, she now advises men and women going through divorce on the emotional, financial and legal aspects of their case.

            Now that lawyers have had web sites for more than five years, it is no longer a pressing question of whether the firm or sole practitioner will establish a web site, but whether the firm or lawyer decides to join a multi-lawyer site to reap the benefits of a brand name entity with a large budge for advertising.  Lawyers should ask the following questions before enrolling:

            So much has been said and written about the global economy of the Twenty-first Century.  Ironically, family law lawyers dealing with the most fundamental concerns of every human being on the planet – intrafamily relations – are poorly prepared to deliver services affordably and efficiently.  The Net now offers family law lawyers an opportunity to get into the national and international marketplace, but at the risk of loosing exclusive access to their local family law courts.  If family law lawyers fail to meet the challenge, perhaps most dramatically highlighted by the increasing numbers of pro se litigants, they may be replaced by paralegals, nonlawyer consultants, or national or even international web sites offering the consumer direct access to legal information and resources.  Bar associations, regulatory agencies, and the individual lawyer must search for and ultimately decide upon a strategy for surviving and thriving in the new economy.

Sharyn T. Sooho practices family law with Law Offices of Sharyn T. Sooho in Newton, Massachusetts. She currently serves as President of the Brandeis University Alumni Association and sits on the University Board of Trustees.  Attorney Sooho serves on the ABA Family Law Section Programs Committee and is Vice-chair of the Section’s Law Practice Management Committee.  She co-authored “How to File for Divorce in Massachusetts,” 3^rd Edition, Sphinx/Sourcebooks, 2001 and co-founded DivorceNet.com.