The legal profession is one of the most stable industries there is and generally among the most conservative when it comes to adapting to change. But that was before the pandemic when every industry was forced to examine how it did business and pivot, in many cases radically, to meet the changing market landscape. These challenges, combined with shifts already underway in society, have put many attorneys in uncharted territory.

 

In the field of family law, for instance, the changing nuclear family dynamic is bringing new issues to legal firms as they deal with cases of divorce, custody and other matters related to the most important societal unit.

 

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Katherine Blackmon Carroll

 

“Without a doubt, the biggest change I have seen in almost 30 years of practice is the progression to a joint custody presumption,” said Katherine Blackmon Carroll, owner of Law Offices of Katherine E. Blackmon.  “I have watched the transition from the traditional ‘Mom has custody and Dad has visitation’ scenario that was the norm back in the day to the courts ‘favoring’ a joint custody arrangement, although still rarely ordered, to today’s presumption that joint custody is to be the standard.”

 

The premise of joint custody presumption is rooted in the commonly held belief that children are better off with the influence of two equally enabled parents, not counting households where domestic violence is present, versus custody decisions that casts one as the primary parent and the other as the weekend sleepover. Per Forbes, proponents also point to the number of non-custodial parents that suffer severe financial hardship as a result of excessive child support judgments in divorce.

 

Critics say presumptive joint custody ignores systemic issues that don’t rise to the level of abuse but that nonetheless contributed to the failure of the marriage in the first place. Joint custody requires extensive communication and teamwork, even from separate households. Couples who can’t manage these requirements well can actually create more strife and anxiety in the lives of the children.

 

Blackmon said the issue of joint custody presumption extends beyond problems between individual couples. In many cases, Arkansas’s included, the statutes covering such scenarios often leave much to be desired, adding a layer of procedural challenges for attorneys in representing their clients.

 

“Our firm does not disagree with the sentiment behind the new joint custody presumption law,” she said. “But the way the Arkansas legislature has modified the statute to reflect this presumption has been problematic and confusing for attorneys and judges alike to navigate.

 

“Unfortunately, until the Court of Appeals or Supreme Court renders opinions on the new joint custody presumption statute, which will take several years, those of us in the family law field are essentially flying blind on the factors that may overcome this presumption under the clear and convincing standard as promulgated by the legislature.”

 

Family law practices are also adapting to clients’ changing attitudes on the institution of marriage itself. According to findings by the National Survey of Family Growth released in 2021, the percentage of married Americans dropped five percent since 1995 to 53 percent in 2019 while cohabitation rates rose about correspondingly. Also telling is the percentage of 18- to 44-year-olds who had ever cohabitated was substantially higher than those who had never been married, 59 percent to 50 percent, respectively.

 

The numbers hint at attitudes that run deeper than just the way we’re living now; a good segment of the population today believes marriage isn’t a necessity for society to function. Among survey respondents 18 to 49, 53 percent said so. And while all adults 18 and over don’t see it that way, the margin is narrowing with just 53 percent of respondents saying marriage is still the way to go.

 

Jalen Toms

 

“With the younger generations, there is and will continue to be less of an importance on the legal recognition of marriage, so ultimately there may be fewer divorces as the younger generations get older,” said Jalen Toms, associate attorney with Law Offices of Katherine E. Blackmon. “However, it is important to note that even without the legal label of ‘marriage,’ marital-like issues are likely to arise in any kind of long-term relationship.”

 

Another area of the law that has emerged in recent years has been in the collegiate sports arena. Name, Image and Likeness (NIL), the means by which the NCAA allows collegiate athletes to receive compensation through sponsorships, has only been around since 2021, but has already sent shockwaves through the sports world.

 

In an eyeblink, amateur athletes went from facing suspension for accepting a sandwich from a booster to negotiating endorsement deals, some of which run into the millions. It’s a wide-open, nearly no-holds-barred system, the likes of which the legal field has been running hard to catch and hold by its tail ever since.

 

Antwan Phillips

 

“There have been attempts at guardrails, but for all practical purposes it’s still pretty uncertain territory for most places,” said Antwan Phillips a partner with Wright Lindsey Jennings and a founding member of WLJ Sports Law. “I will say it’s not the NCAA, but probably more individual institutions that have implemented things that bring some certainty and perimeters to these cases.

 

“For example, the University of Arkansas has prohibitions; [athletes] can’t do any NIL deal that concern gambling, drugs, alcohol, any sexual-oriented businesses. All those things are off limits. Also, the university has to approve a contract before the contract can be signed. You can’t just go out and sign a deal; the university must be aware of it and sign off on it before you can proceed. Those things have helped, but that’s on an institution-by-institution basis, not necessarily by the NCAA.”

 

The firm had been active in professional athlete representation for some time, which was helpful in quickly mobilizing resources to accommodate NIL business, and a potentially substantial book of business at that. In just its third year of existence, NIL has already had a marked impact on the college sports landscape, changing how young athletes and prospects plat their future both on and off the field, court or diamond. And with proposals introduced in the last legislative session to allow Arkansas high school athletes to pursue NIL deals, chances are such activity will only accelerate in the future.

 

“I think the athletes are more aware today,” Phillips said. “It’s more intuitive for them now just because of social media. They were already branding themselves, already building a following. So, they kind of get that. Often, what they don’t get is the legal aspect of it and that’s where we come in, to make sure they understand what their contractual obligations are and should be and what they are giving up in exchange for compensation and whether that’s a fair exchange.

 

“We always tell our athletes your number one priority is do well in school and do well on the field of whatever sport you play because these NIL opportunities don’t happen without you doing either.”

 

Phillips said the potential for growth in this area of the firm is great, considering how many athletes are still trying to handle their NIL opportunities in-house.

 

“I would say legal representation is not as common as it should be. There are probably more people conducting NIL deals without legal representation than those who do have legal representation,” he said. “There are a lot of folks who are handling these deals themselves or it’s a parent, an uncle or whatever, helping out. But like we tell all our clients, you’re dealing with a contract, these are legal issues. Can you do it yourself? Yeah, you can, just like you can do most things yourself, but it’s always better to have a professional guiding you who’s dealt with this.

 

“One thing we tell our people is when you don’t have a team like we have – we have a sports law team made up of about seven attorneys in addition to having a firm of about 80 attorneys – you could miss out on opportunities when they happen.”

 

There have been other trends that have had a substantial impact on the practice of law in recent years, regardless of legal specialty, most of it stemming from a wider prevalence of technology.

 

“Since the pandemic, the legal process has become more conducive to electronic means,” Toms said. “In most counties, parties are no longer required to go to court in person for uncontested divorce hearings and instead can file affidavits answering the questions that would have historically been asked in court.

 

“During the pandemic, Zoom hearings and court procedures were conducted almost exclusively via Zoom. However, most judges, even those in larger counties, have transitioned away from allowing Zoom hearings unless necessary or to address basic procedural issues in advance of a trial.”

 

Technology has also played a role in changing how clients approach their legal matters as the internet has put a wealth of information at anyone’s fingertips. But while clients are in general more well-versed as a result of this, it doesn’t always work in their favor.

 

“With the advent of Google, clients definitely come to initial consults more prepared, but unfortunately, most of the research that they have done does not apply to Arkansas law or their particular case,” Blackmon Carroll said.

 

“Searching for legal advice on the internet is, in my opinion, dangerous. Laypersons do not always understand that the information they find online might not be relevant to Arkansas law, the specific facts of their case, or take into consideration decisions being handed down from the Court of Appeals.”

 

For everything that’s new of late, what hasn’t changed in today’s legal market are the consultative roles and responsibilities attorneys hold for their clients, helping them not only with the specifics of the case at hand, but for the ramifications such proceedings have for the client’s future.

 

“Being an NIL attorney, we’re really aware of this,” Phillips said. “The majority of athletes aren’t going to get rich doing NIL deals, but there are other benefits. You’re starting to see players stay in school longer, athletes that are on the fringe. If I was willing to take a chance that I was going to be a late-round draft pick three years ago, now I can stay on campus, continue to be the big man/big woman on campus and make some money. I think that’s going to incentivize people to stay longer than they would have in the past.

 

“Another thing that gets lost on people, because we just think about the money, are the important life lessons for the athletes as well. And that’s one thing that’s important to our firm; we want to do life with all our clients, especially these young folks. Imagine being 20 years old and now you understand contracts. Now you have a relationship with a lawyer, a law firm. You understand the value of your time. You understand how to negotiate a deal.

 

“Those intangible things that help with an athlete’s personal and professional development are important, things we don’t’ always talk about from NIL. That’s beneficial and we’re happy to be a part of it.”

 

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