In many respects, law practice involves a brave new work of global lawyering. On a daily basis, lawyers from Main Street to Wall Street represent clients with transnational legal needs. At the same time, lawyers face pressure to reduce the costs of delivering legal services. Cost containment initiatives include outsourcing legal work to subcontractors who provide services at a lower cost. Whether legal work is sent to Indiana or India, outsourcing results in less personal connections between clients and the lawyers who originally were retained to handle the representation. Increasingly, in-house counsel unbundle the corporation’s legal work, dividing the work among numerous law firms rather than relying on one firm to meet needs on a full-service basis. For many, these trends threaten the very fabric of the trust relationship between clients and their attorneys. In his forthcoming article, Big Law and the Marginalization of Trust, Professor Robert Vischer examines the role of trust in the current climate and economic reality of global lawyers. As the title suggests, the article considers whether trust is a casualty of the trends in the structure, operation, and regulation of law firms. Rather than simply declaring trust dead, Professor Vischer persuasively explains why trust is of vital importance to lawyers, the clients we serve, and society.
The article is particularly interesting in providing context for understanding the concept of trust and the role it plays in professional relationships. Professor Vischer starts by discussing the nature of trust and the difference between cognitive and affective trust, referring to the definition of trust as a “state of mind that enables its possessor to be willing to make herself vulnerable to another—that is to rely on another despite a positive risk that the other will act in a way that can harm the trustor.” (quoting A Cognitive Theory of Trust by Claire A. Hill and Erin Ann O’Hara). The discussion of vulnerability is particularly timely given that a few experts have urged the 2020 Ethics Commission to consider adopting separate ethics rules to regulate large law firms that represent sophisticated clients who can presumably protect themselves and are therefore not vulnerable. This relates to Professor Vischer’s observation that different potential clients may require different degrees and manifestations of trust.
Professor Vischer examines the trends that strain the viability of what he calls “relational trust” between lawyers and their clients. These trends include globalization, the “disaggregation” of legal services, the rise of in-house counsel, the decline of self-regulation, and the multi-disciplinary practice of law. With each of these trends Profess Vischer considers the effect on trust as an attribute of the attorney-client relationship and the impact on the relationship. For example, what are the personal and professional liability implications for an attorney representing clients from around the world? Such clients may not be reluctant to sue the attorney for malpractice because the clients do not feel connected to the attorney. As pointed out by Professor Vischer, the lack of face-to-face interactions is not conducive to trust and trust diminishes as social distance increases. This risk reminded me of my own experience with a client representative who I knew only through telephone and electronic communications. When the relationship was tested because of allegations by opposing counsel, I believe that the client may not have fully embraced my account of the situation. Since that time, I have wondered if the client’s assessment may have been different had the client and I had a stronger professional relationship. Clients who don’t know their attorneys beyond a signature line on an email or a voice on a telephone conversation may be more inclined to sue their lawyers for malpractice. Findings from studies related to medical malpractice claims reveal that patients are less inclined to sue physicians when there has been good communication with patients, even when medical error occurs. Communication and interpersonal dealings help build trust between clients/patients and their service providers. With heavier reliance on electronic communications and greater distance between clients and their attorneys, attorneys need to be intentional in taking steps to cultivate their relationships with clients. In this sense, fostering trust improves the quality of representation for clients, while lowering attorney’s liability exposure.
Fostering trust also promises to enhance attorney sense of professional fulfillment. A close trust relationship with clients moves the attorney down the continuum from technician to valued shepherd and counselor.
A final aspect of trust relates to the professional relationships among attorneys, especially those who work together in law firms. On a daily basis, newspaper articles and internet posts bemoan the decline of collegiality and professionalism within firms. Associates condemn law firm managers who lay off associates rather than reducing profits per partner. Partners criticize associates when they act in a disloyal manner, such as when associates disclose proprietary firm information on popular websites. Partners also lament when lateral moves disrupt the stability and economic foundation of their law firms. With lawyer mobility and disputes, lawyers question whether there is anything “firm” about law firm practice. Lawyers may not trust one another when their relationships with other firm lawyers appear to be temporary associations rather than long term commitments. As a result, lawyers may yearn for the revitalization of the traditional approach to partnership in which lawyers are committed to and trust their partners.
Thanks to Professor Vischer for providing a thorough analysis of the current trends that strain the attorney-client relationship. He gives readers an opportunity to seriously consider the role of trust plays in productive relationships. As he persuasively asserts, trust not only matters, but is essential distinguishing feature of an attorney-client relationship.