My own interactions with David Maister have been only glancing — he contributed a fine article to a College of Law Practice Management e-zine on innovation that I edited in 2006, and he generously gave me a credit in his last book for some very slight suggestions I contributed. But his influence on me and his impact on a generation of legal professionals have been profound — not only through his practical guidance and his contributions to a rational law practice business model, but for the principles he constantly advanced as essential to excellent professional service. David exhorted lawyers and accountants to stay true to the highest standards of trustworthiness and ethics and to focus relentlessly on serving the client’s best interests. Early in True Professionalism, he writes:

A true professional feels no pressure to run up a client’s bill, knowing that any reduction in revenues caused by being efficient will be more than recompensed by the reputation earned for being honest and trustworthy. A provider that is not efficient in spending the client’s money soon loses the client’s trust and confidence. Is this an ethical point or a “good business” point? Of course, it is both. …

Evoking the moral argument is not necessary, although it’s still the real one. One should be efficient not only because it’s good business, but because it’s the right thing to do. Doing the right thing is good business! Yet one still hears the argument in professional service firms that “I know what I’m doing could be done by a less costly person, but if I delegate it to someone who charges less than I do, our revenues will go down.” Do people making this argument need a lesson in business or a lesson in professional ethics? …

When you accept an assignment from a client, good supervision is not optional. Rather, diligence in supervising a client’s transaction is an ethical issue, a matter of responsibility for due care. It’s about professional responsibility and true professionalism. The fact that it’s the high-profit thing to do is wonderful, but you should do it because it’s the right thing to do.

Keep in mind, when reading this, that David is speaking directly to his client base — the professionals who engage him for his consulting services — about what does and does not constitute good conduct on their part. He’s speaking truth to power, and the courage that requires is often underestimated, not to mention in short supply. How many of us in the legal profession feel comfortable saying things like this in public anymore? This is not an excerpt from an ancient tome — True Professionalism was published in 1997 — yet it feels like ages since I’ve read anyone make a powerful case that serving your clients’ best interests in your business practices is the correct moral choice and is justified for that reason alone. Sure, there’s a business case for running a client-focused practice, but if you really need a business case for that, you’re in the wrong line of work.

We need to remind ourselves about the central importance of service and trustworthiness in law practice, especially now that the fundamentals of the legal service marketplace are changing under our feet. For one thing, there’s going to be a wave of new providers from outside the legal profession taking clients’ business, and lawyers will require a competitive response. One of those responses needs to be that lawyers are committed to the complete engagement of the client and the client’s interests and are fully invested in business practices that put those interests first. Alternative legal service providers won’t always be able to make that claim; lawyers need to be able to make it every single time, or we’ll lose our ability to differentiate ourselves as “trusted advisors” and still have that phrase mean something.

Even more importantly, trust and professional commitment are the keys to lawyers’ survival now that the traditional rules by which law has been practised are being blown apart. Alternative fee arrangements require a partnership between the lawyer and the client, one based on trust that each will safeguard the other’s interests and that the lawyer in particular will work diligently on files in the absence of a direct link between effort and payment. Collaboration, the key to successful interactions with colleagues, clients and other counsel from here on out, is simply not possible for those who won’t share and who habitually put themselves first. Talented lawyers will continue to gravitate to firms that trust their lawyers to do good work without counting hours and that are willing to share the pain in bad times, while firms that fire staff, cut associates and de-equitize partners whenever the going gets rough will increasingly struggle. It was quite possible, under the old model, to operate an exploitative, me-first law practice and still turn a profit; I think it’s going to be seriously difficult to manage that from now on.

That’s why David’s retirement is a moment to pause and consider the central importance of his work to current and future generations of lawyers and clients. Extremely few lawyers have completely abandoned our professional ideals; but not enough of us have made them the uncompromising core of our day-to-day businesses. Not enough of us are willing to carve into our organizational cornerstones the principle that we will always strive to do the right thing — for no other reason than that doing right is what we’re here for. That kind of commitment is the source of the admiration that many people used to have for lawyers and that, if we make the right choices in the decade to come, they will again.

We’ve become a profession in search of purpose and identity; I strongly suggest we listen closely to those, like David, who insisted lawyers’ purpose and identity resides in service and trustworthiness, and act accordingly.

The obligations set out in the opinion, while not unreasonable in any broad sense, set a markedly higher standard of conduct than many firms are currently maintaining. I think they’re noteworthy for two reasons: one, because firms with offices in New York (which include many global giants) are now bound by these standards (which could well become the de facto standard in other jurisdictions); and two, because we’re going to see a lot more of this: regulation of lawyers’ conduct regarding their work and their clients.

The NYC Bar asked itself the following questions:

What ethical obligations does a lawyer have to retain e-mails and other electronic documents relating to a representation? Does a lawyer need client permission before deleting e-mails or other electronic documents relating to the representation? When a client requests that a lawyer provide documents relating to the representation, may the lawyer charge the client for the costs associated with retrieving e-mails and other electronic documents from accessible and inaccessible storage media?

Read the whole opinion for the complete answer — it’s not long — but the gist is that standards that currently apply to storage and access of paper documents apply equally to e-documents. That might sound like common sense, but think about the impact. The electronic documentation that any given client matter produces is massive: emails to clients and colleagues, draft versions of memos, timekeeping records, Blackberry messages, and so on. If you printed out every e-document and added it to the case file (and please don’t), that file would be about ten times higher.

Here are some highlights of the opinion’s specifics (emphasis added throughout):

Some e-mail systems automatically delete e-mails after a period of time, so the lawyer must take affirmative steps to preserve those e-mails that the lawyer decides to save. In addition, e-mails generally are not coded, or otherwise organized, to facilitate their later retrieval.  Thus, a practice with much to commend it is to organize saved e-mails to facilitate their later retrieval, for example, by coding them or saving them to dedicated electronic files.

Otherwise, it may be exceedingly difficult and expensive for the lawyer to retrieve those e-mails, and, as discussed in this Opinion, the lawyer must not charge the client for retrieval costs that could reasonably have been avoided.

In New York, a client has a presumptive right to the lawyer’s entire file in connection with a representation, subject to narrow exceptions.

It is prudent for lawyer and client to discuss the retention, storage, and retrieval of electronic documents at the outset of the engagement and to consider memorializing their agreement in a retention letter.

These five bolded directives and recommendations represent practices and principles that most firms honour in the breach rather than the recognizance. Here’s what John had to say on the subject:

[M]ost law firms acknowledge that they are doing a poor job of ensuring that they capture all relevant electronic records. (Mainly, they refer to e-mails, but many firms capture voice mails in Outlook as electronic files.)

In the old days, when all correspondence was in paper form, one’s secretary ensured that all relevant documents were filed in the paper file. These days, however, the filing responsibility tends to fall on the lawyers themselves. Some of them work out some sort of division of labour with their assistants, some try to do it all themselves (and then agonize as to how they docket the time!), and some give up and don’t even bother.

In principle, this opinion simply records what “should” be taking place already. The problem is that, in fact, not all of the relevant matter-specific electronic documents are getting filed.

Most large firms have instituted a document management system (DMS), so in principle (again), all firm-authored documents are saved to the specific matter folder in the DMS. But because of the cost involved, not all firms have a DMS. Accordingly, if there’s no DMS, each lawyer and assistant stores documents “somewhere” on the hard drive. (And then good luck trying to retrieve them later!)

As well, even if there is a DMS, some lawyers, for various reasons, are reluctant to have their work product available for their colleagues to find via the DMS search function. Those people will therefore tend to save their work in private workspaces that are not accessible to others.

In practice, it is safe to say that most firms fall short of the requirements set out in this opinion. The interesting thing will be seeing what firms do to (a) bring all relevant electronic documents into their filing systems, and (b) get the recalcitrant partners to save their client work product onto the DMS.

Three points here. First, lawyers have never taken data organization — or knowledge management, if you will — quite as seriously as they should. That era might now be ending: information has swelled to the point where it simply has to be organized to be of any use, and the profession’s standard-setters are finally starting to integrate technological advances with ethical expectations (cf. the CBA’s new Guidelines for Practising Ethically with New Information Technologies).

That’s going to force change on firms, and not just on the IT or KM people. As John says, lawyers will need to radically overhaul their view of documentation, and come to accept that the default setting for client-related documents of every kind is a filing system, not the recycling bin. That’s going to be a tough transition to make and a nigh-impossible one to enforce — but that’s where things are headed.

And that’s the second point. What we have here is the collision of two forces: a regulatory edict that law firms must organize e-information for clients’ benefit, running square into lawyers’ longstanding unwillingness to organize their data for anyone’s benefit, let alone their clients. The question is: who’ll come out on top?

For the longest time, the smart money has been on lawyer intransigence. By sheer weight of momentum and the absence of countervailing forces, any number of poor practices and attitudes in law firm culture continue to roll right along. Countless challenges to hourly billing, for example, have wound up flattened underneath the behemoth, and after so many inaccurate pronouncements that “It’s different this time,” it’s tempting to believe that nothing will change here either.

But you know, maybe it is different this time. “Deregulation” is 2008’s dirtiest word, and correspondingly, the powerful regulator that keeps the rich elitists in line while looking out for the little guy is on the rise. I think law firms are going to start feeling the regulatory pinch rather more than they have in the past.

Regulators are going to be given stronger mandates and more resources to pursue them — along with the clear message that if they don’t do a good job of it, the government will. Ask the Law Society of England & Wales about how well that can turn out. Watch to see whether and to what degree law firms with New York connections are held to account to this ethical opinion — that’ll be the canary in the coal mine.

And that brings us to the third interesting thing: if regulated standards of conduct do increase (and are enforced), then a law firm’s ability to brand itself in this regard will be reduced. Right now, a law firm can sell ready access to a client’s files and information, served up easily and with a smile, as an exceptional and differentiating client service. Firms that provide clients with extranets, from which they can access and download data 24/7, are still on the cutting edge today. Well, it’s now conceivable that such extranets will become mandatory in the near-to-mid future.

This one ethics opinion alone has the potential to reshape and redefine the standards for a law firm’s entire legal work product process. If this trend expands to include strict regulatory attention to the lawyer-client relationship itself, then all bets are off.

Clients’ responses to these requests vary according to the size and leverage of both firm and client. Large clients routinely blow them off, because they can — the lawyers need their business more than the clients need these particular lawyers. Smaller clients have less leverage, so if they want to hire big firms, they pretty much have to live by the terms those firms dictate. I can see a couple of trends emerging from this, neither of which is good for large firms and both of which reflect the unintended consequences of size.

First, when a firm is so big that it has to go begging for the right to sue the client in future, the client will correctly diagnose this as a vulnerability that can be exploited. Instead of simply refusing these requests, clients will start calculating just how much (or little) they actually risk by granting such a waiver, and how much the firm has to gain by it. The client might then say to the firm, “Sure, we’ll grant you the waiver — and in return, you’ll knock 15% off all your fees and pick up the costs of a new extranet system.” Large firms’ vulnerability to conflicts is going to cost them at the bargaining table.

Secondly, smaller clients without the power to simply ignore these waiver requests have another reason to wonder whether it’s worth it to retain large firms. Clients already pay a lot more money for big-firm services, without compelling evidence that the quality of those services (not to mention value for money) is of a justifiably higher magnitude than what smaller firms charge. Now that these firms blandly assert their right to sue you later on, clients might really start doubting whether the status and brand power of a big name is worth it. This would be an excellent time for smaller firms to jump in and start pitching these clients on the many benefits of small.

But there’s another unintended consequence at work here, one that should concern lawyers no matter where they practise. Ever since a 2005 ABA ethics ruling that gave lawyers more latitude to seek advance waivers, this whole discussion seems to have moved from the ethical sphere (is it proper to do this?) to the business sphere (can we reach agreement with the client to do this?). That’s a problematic development all on its own.

The whole topic of conflicts of interest these days is being dealt with as a case-by-case consent-based business matter, rather than as an overarching rule of loyalty and best interests between lawyer and client. That’s all well and good for big firms, in the short run, if it helps bring in more business.

But we ought to remember that conflicts of interest rules are the flip side of solicitor-client confidentiality — the classic, fundamental aspect of legal retainers that rests on the critical promise of discretion by a lawyer to a client. You know, the one that our profession keeps saying sets us apart from ordinary service providers.

If you break the ethical foundation of conflicts rules, reducing them to a mere business matter, then you also break the foundation of solicitor-client confidentiality. And pretty soon, governments, regulators and the public might start questioning why, in the absence of the former, the legal profession should remain entitled to the latter. Lawyers should be proceeding a lot more cautiously here than we are.

LegalWeek reports that UK hedge funds are lining up to provide funding for lawsuits. This idea in itself isn’t breaking news: several US companies, often backed by massive hedge funds, already provide financing for plaintiffs in personal injury suits — and arguably, contingency fee arrangements in class actions accomplish the same end, providing funding in return for a piece of the expected damages award. Hedge fund investments in plaintiffs’ lawsuits has recently spread to the UK. But this newest British development contains a twist: the investors are looking to finance the defendant.

Here’s how LegalWeek‘s Editor’s Blog explains it:

The investor is likely to be a hedge fund or special situations fund looking to make high-risk investments. The investor gets a fee or premium and effectively offers to fund a substantial chunk of the defendants’ liability. The attraction for defendants is hedging and managing their exposure, despite higher upfront costs. And by introducing an outside investor that will look at a legal opinion to gauge the merits and risks of the claim, a company can effectively put a ‘market price’ on their litigation risk.

The concept of a market in plaintiffs’ lawsuits has its supporters, who contend that the benefits include creating a more level playing field between plaintiffs and defendants and bringing market-driven risk assessments to evaluate lawsuits’ chance of success. Opponents cite concerns about champerty and maintenance, though it seems to me these prohibitions have not been pursued enthusiastically by governing bodies and have lost some of their force over time (lawsuit investors argue that they’re not instigating lawsuits, which is forbidden, but financing suits already underway, which seems a distinction bordering on the specious).

There are access-to-justice arguments in favour of allowing plaintiffs to seek financial backing to bring a claim and sharing the rewards with those who do so, and reasonable people can differ on this. But when defendants start looking for investors as well, I start getting worried.

I understand the attraction, and even some of the merit, in valuing and sharing the risk of defending a lawsuit. But if this takes off, then we’ll soon have lawsuits where neither the plaintiff nor the defendant hold controlling financial interests in an action that bears their names. What we’ll have is duelling hedge funds paying lawyers to play out an investment strategy in court for which they’ve placed bets on opposing positions. The courtroom would essentially be a legal commodities exchange, except with human judges replacing impersonal market forces. I think we can safely use the word “perversion” to describe the effect of this development on the justice system.

Commenters on a 2006 University of Chicago Law Blog posting on this subject raise other concerns. First of all, there’s the question of “subprime lawsuits”:

I suspect that the kinds of lawsuits for which an investment market will develop will be “sub-prime,” so to speak. The potential damages will be significantly smaller, the quality of lawyering (on both sides, given the stakes) will be diminished, and the risk of strike suits will be greater. Just as some law firms take large numbers of low-grade contingency fee cases to operate “on volume” — a few good ones will pay for the dozens of meritless ones, so too will this investment market. Investors in lawsuits will likely not evaluate particular cases on the merits, but look at a series of variables (e.g., lawyers’ win rates, judge’s leanings, awards in particular jurisdictions, etc.) to calculate the odds that their “portfolio” of lawsuits is more profitable than not.

Then there’s the issue of insider trading:

In all these information markets one wonders about inside information. Optimistically, market participants will judge when prices are moving because of insiders’ attempted manipulation. But a little regulation here and there might be expected (no trading in your own claim, for example).

And, most forcefully for me, there’s the argument that it’s just plain wrong to convert tort law, which is meant to be a vehicle for corrective justice, into just another financial portfolio entry:

Litigation is a form of social conflict, albeit a reasonably peaceable form, though those who have been sued have reason to feel differently about it. Rules requiring parties to fund their own claims rest on a policy in favor of social peace. Case law under such a view is assumed to be exemplary, not pervasive; legal norms should be largely self-enforcing, a view summarized in Grant Gilmore’s famous declaration “In hell there will be nothing but law, and due process will be meticulously observed.”

Quite possibly, the liquidity freeze that’s causing seizures throughout the international financial system will dampen hedge funds’ enthusiasm for throwing money at the instigators and defenders of lawsuits. But it’s just as likely that the elimination of other investment routes will make lawsuit venture capital more enticing: these funds have a ton of money and they need to put it somewhere. The enthusiasm with which major UK law firms have embraced the idea of defendant lawsuit investment indicates this isn’t going away anytime soon.

I’m a supporter of market dynamics in the law, but in the sale and management of lawyers’ services and practices, not in the underlying tort system itself. And while most everyone would agree that the system needs reform of some kind, this isn’t it. Plaintiffs’ lawsuit investment is already a potentially dangerous development by itself, but by giving it an equal and opposite dance partner on the defence side, we could be opening a very nasty Pandora’s Box inside the justice system.

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When we talk about professionalism, we can start getting bogged down, because it’s a word that means a lot of different things to different people. Now, in my case, I’m an editor, I’m an English major, I’m basically a word geek – I gave up Scrabble for Lent, if that helps put it in perspective. So to prepare for this event, I did what word geeks do: I went out and looked up “professionalism” in the dictionary. And what I found there was that the Latin root of “professional” is profiteri.

Profiteri has two components: pro, which means “forth,” and fateri, which means “confess.” Taken together, they mean “to announce a belief.” It has religious roots – its original use was to bind yourself, publicly, by a vow or oath, to a vocation or higher purpose. When the word began to filter into wider use, it was applied to occupations, but only to those that involved the same sort of considerations as religious vows: service, selflessness, higher purpose – generally, making things better for others. Originally, only three occupations qualified as professions: ministry or theology, of course; medicine; and law.

So when we talk about traditional standards of professionalism, it’s important we remember we’re not talking about excellence, or good manners, or “total quality management” – or at least, not primarily about that kind of thing. We’re talking about serving the interests of others, prioritizing them above ours for a greater cause.

For a while now, we’ve been talking about a decline in professionalism in the law, or the loss of professionalism. And generally, these discussions have tended to center around things like uncivil behaviour by lawyers, or an unseemly focus on money, or a lack of proper respect for the court, that sort of thing.And it’s good that we’re looking at these things, because they’re real problems, and some of them are serious. But to my mind, they’re really all symptoms – they’re not the underlying disease. There’s a bigger cause behind these effects.

I think the underlying problem – the fundamental thing we’ve lost sight of as lawyers – is that our whole point for even existing, which the etymology of professionalism makes clear, is that we serve others. Lawyers make things better for other people. That’s what we’re here for. We put our interests secondary to the interests of those we serve.

Alright, so who do we serve? In the Donohue v. Stevenson sense, who is our neighbour? Well, we serve clients, obviously – our duties to them are well established. But there’s also a duty to the court, and a duty to opposing counsel. Bu you’ll also find – if you go back, not too far into legal history, a century or two — you’ll find lawyers talking about a duty to society, and a duty to the truth.

That’s a lot of duties. That’s a lot of people whose interests we’re supposed to place ahead of our own. That’s a lot of institutions whose interests we’re supposed to be looking out for. The problem, I submit, is that we haven’t been delivering. As a profession, I think we’ve fallen into the habit of serving ourselves first, and others second. And because that’s a direct violation of the nature of our professional purpose, that’s why professionalism in the law is suffering.

Justice Rosalie Abella, in her landmark 1999 presentation “Professionalism Revisited”, suggested two factors that she saw as contributing to the decline in professionalism: economic pressures and a preoccupation with process. Both these problems are linked to professionalism – there’s no question about that. But with the greatest respect, I don’t think they’re causing a decline in professionalism. I think it’s the other way around. I think a decline in professionalism is causing them.

Let’s start by looking at economic pressures. Lawyers who make client service their top priority do not hurt for money – that’s what every new lawyer is told all the way to his her call to the Bar. Genuine interest in the client’s welfare drives successful law practices. It’s when lawyers lose the ideal of service towards others as their guiding light – that’s when money becomes their primary pursuit. They start serving their own interests first – and that’s when, coincidentally enough, money also becomes their biggest problem.

It must also be said that while lawyers might complain about economic pressures, the fact remains that we offer our services in a marketplace that is far from open. There are numerous restrictions on who is allowed to offer legal services, and an army of regulators ready to pursue those who engage in the “unauthorized practice of law.” Accordingly, lawyers don’t have to deal with much competition, and lack the kind of incentives that force most other service providers to lower their prices and invest in innovation. Without this protection, I expect lawyers would quickly come to appreciate what real “economic pressures” actually feel like.

Regarding a preoccupation with process, it’s important to recognize that if we have a court system that is backlogged, weighed down with procedure and out of touch with everyday reality, that’s because lawyers have made it to suit our preferences. Lawyers are trained to seek the right answer, no matter the time and cost, whereas many clients prefer to find the quickest, cheapest resolution to their difficulty, and never mind if it’s perfect or elegant. Lawyers prefer the court system be the default method for resolving disputes; that’s why ADR methods like mediation and arbitration still carry “A” for “Alternative” in the acronym. None of this makes justice more accessible.

And access to justice matters. If you’re a lawyer who genuinely cares about whether the public can realistically use the justice system, then you don’t put up with a system where only the very rich or the very poor can go to court, and where the other 90% can’t afford the money or the time it takes to see justice done. Lawyers who are OK with the fact that the system works just fine for them, but not for most everyone else – who actively work to protect that system and their privileged position within it – well, it doesn’t matter how civil they are towards others, or how admired they might be for their skills and success; they’re not professionals.

So what do we do now? If professionalism is in such dire straits in the law, how do we bring it back to life? I have a couple of suggestions.

In her presentation, Justice Abella noted that there was at one point a “tacit consensus about what it meant to be a lawyer.” In our modern, and thankfully diverse, profession, that tacit consensus has disappeared. And one of the things that disappeared along with it is a common understanding of what professionalism means.

So what we now need to do is to move from tacit to explicit. We need to integrate professionalism into lawyer training and ingrain it in the everyday behaviour of practicing lawyers. We can’t continue to assume that lawyers will somehow acquire professionalism on the job, “pick it up” through immersion or osmosis, because it’s not happening. We need to make professionalism a foundational part of the legal education and licensing process. Every element of the profession has to play a part: the schools, the law societies and the practicing bar.

What do schools need to do? Make professionalism a separate, core subject in the curriculum, and integrate into as many other subjects as possible. I don’t mean simply a legal ethics course – I mean a full-scale pedagogy of lawyering. Law schools teach the history and purpose of the law; they do not teach the history and purpose of lawyers. That has to change.

The law society? I appreciate that it doesn’t have the time or resources to train bar admission students in professionalism. But the law society is the licensing body for lawyers, governing the profession in the public interest. It has to ensure that new lawyers clearly understand that lawyers’ purpose lies in service and in the improvement of the lives of others.

And the practising bar? It has to lead by example – and I mean, really lead. Every time a lawyer behaves unprofessionally, and doesn’t face serious backlash from his or her colleagues, the bar gets lowered – in both senses of the term. Every instance of self-serving behaviour by a lawyer turns the profession one more degree inwards towards ourselves, and one more degree away from the people and institutions to whom we owe our duties.

If we’re ready to acknowledge what professionalism really means, and if we’re ready to undertake a radical rethinking of how lawyers are trained, mentored and judged, then I really do believe we can revive professionalism.

But that will depend heavily on the profession’s leaders in schools, the law society and the private Bar – which is to say, will it depends on you. If there’s going to be a change for the better, if there’s going to be a true renaissance of professionalism – it’s going to have to start right here, today, with you.

Currently the rules permit law firms to act on conflicting instructions only where the clients share a common interest and consent or where two clients are competing for the same asset, such as in an auction sale. “In addition to these two exceptions,” proposed Perrin, “there should be a wider exception to be used by sophisticated clients, which would enable them to waive conflict in any circumstances.”

Perrin argued that if two sophisticated clients want to get a deal done and both have historically used the same firm, it is impeding their desire to get the transaction done to prevent them from using that firm. And if both parties are happy that a firm will look after both their interests, he said, there is no reason why it should not. The proposed definition of ‘sophisticated clients’ would include clients, which have received independent legal advice or which have in-house legal departments and the exception would not apply in litigation matters.

This rang a bell with me, and sent me off into National‘s archives to find an article published in the March/April 2004 issue (not online, unfortunately) about a proposed change to the Law Society of British Columbia’s professional conduct handbook. Proposed Rule 6.3.1 would have enabled lawyers to act against current “sophisticated” clients without their consent if (a) the matters are substantially unrelated and (b) the lawyer has no confidential information that might reasonably affect the other representation. (The law society’s contemporary bulletin on the subject provides more information.)

The effort to amend the B.C. ethics handbook was led by several large national firms, which complained that the rules were hamstringing their efforts to resolve conflicts and serve their clients. Opposition was spearheaded by corporate counsel, who countered that the change would erode the fundamental nature of the fiduciary relationship lawyers owe their clients and was primarily intended to support law firms’ financial objectives. Today, the professional conduct handbook shows no sign that Rule 6.3.1 was ever adopted.

I don’t want to venture too deeply into conflicts territory — I’m not an expert and I’d rather leave the field to those who are — but I’ve been thinking for a while that longstanding ethical rules on client conflicts of interest, and the relentless growth and evolution of national and global law firms, are not compatible. Large-firm managing partners are deeply concerned with conflicts and would love to have more room to manoeuvre than the rules currently supply, but there are a lot of interests — client and professional — pushing against them.

The current dilemma can’t last forever: something is going to have to happen to break the logjam and decide the course of conflicts rules in future. If efforts like Chris Perrin’s succeed — and I personally think that, sooner or later, they will — our profession is going to undergo some truly radical changes. Keep an eye on this.

For a long time, we’ve created a myth in our culture that it’s worth any price to reach your goal, especially if your ego tells you that you’re the best solution. We’ve created legends of people and organizations that pursued transformative long shots to achieve great results.

I need to be really clear: pushing through the Dip and becoming the best in the world at what you do is in fact the key to success. But (and it’s a big but), if you’re required to become someone you’re not, or required to mutate your brand into one that’s ultimately a failure in order to do so, you’re way better off quitting instead.

This got me thinking about lawyers. Many lawyers are happy with their working lives — or at least they’re content, having decided happiness was too high a target to aim for. But a lot of lawyers are unhappy, sometimes deeply, with their job or career. A lot of them talk about quitting, and a growing number of them do — either to find another job in a more fulfilling environment, or to keep looking until they eventually leave the profession altogether. Neither the law, nor every job in the law, is for everyone.

But many others stay where they are and grow more unhappy by the day. Some do it out of financial necessity, especially recent graduates with mountains of debt or a family to support. Some stick it out in the stubborn hope that things will improve, despite the absence of supporting evidence. Some convince themselves that the intangible benefits (social status, professional prestige, family pride) cancel out the misery. And some subscribe to the fallacy of “sunk costs,” that they’ve invested so much time, money and soul into a legal career that they can’t give up now.

One way or another, the unhappy lawyers in this second group are going to wind up in the same place as the unhappy ones in the first group: in a different job or out of the profession. They don’t have a strategy for finding fulfillment where they are, and they probably don’t have the motivation to execute such a strategy if they had one. Sooner or later, they’ll have to give it up; from my perspective, it might as well be sooner, and I recommend The Dip for more on that subject.

But there are worse things than being in a career that goes against your grain; there’s changing your grain to go with your career. Some lawyers have gone this route, too: either in single-minded pursuit of career goals, or simply as a survival mechanism, they’ve moved away from who they essentially were and became someone they felt they needed to be. Faced with what they perceived as the difficult, exacting mold of the lawyer’s life, they twisted and bent themselves into someone new in order to squeeze inside and fit. You know at least one lawyer like this; you might know several.

I thought of those lawyers today too, when visiting the Wall Street Journal’s Law Blog and reading reactions to a story of two Illinois attorneys who allowed an innocent man to sit in prison for 26 years because the guilty man, who confessed his crime to them, was their client, and they felt ethically bound to keep silent. I’m astonished that the sheer obviousness of how wrong they were to do this didn’t overwhelm them from the start; but I’m even more astonished by the WSJ commenters who support their decision. Here’s my favourite:

I don’t know. Letting an innocent man rot in jail — and we’re not talking club fed, we’re talking maximum security — like that. I just don’t know.

You don’t know? Seriously? If we don’t know that legal ethics is a subset of, not an overriding exception to, fundamental morality — if we really don’t know which of these two courses of action was undeniably the wrong one — then we’ve gone down the rabbit hole here.

Look, this is hardly a groundbreaking point, but it bears repeating, especially to recent law school graduates: no job, no career, no status is worth not being true to yourself and to what matters. You’ve spent three decades or more becoming who you are, through daily interchanges with family, friends, loved ones, classmates, colleagues and others, not to mention with literature, philosophy, politics, activism, religion, and the dazzling multifaceted nature of daily life. Don’t diminish that person in the mistaken belief that this profession demands abandonment of principle, compassion and decency.

In fact, it’s exactly the opposite. The best lawyers, without exception, are authentic to their core: they know themselves, they know what’s true, and they’ve aligned their daily behaviour to their internal ethical clock. For their efforts, they have the respect and admiration of those around them, and they are as happy as you could ask to be.

A legal career should never force you to choose between who you are and who someone wants you to be. But if that choice is presented to you, then think long and hard about the value of quitting.

As it happens, the book on top of the pile I’m consulting for my projects is The Lawyer’s Calling: Christian Faith and Legal Practice, a 1996 work by Joseph G. Allegretti. Page 123 finds Allegretti discussing the character of Thomas More in Robert Bolt’s play A Man For All Seasons :

Part of the reason for More’s appeal to lawyers is his legalistic (in the good sense of the word!) approach to the problem of the oath [More had refused to sign one attesting to the legality of the king's divorce]. An oath is composed of words, he says, and he will sign it if he can, if the words permit him. He is no plastic saint: he very much wants to live, and he will use his mind to escape punishment if it is possible to do so.

Allegretti likes that part of the play because it points up More’s humanity: he has no wish to become a martyr and will use his God-given legal skills to avoid that fate, so long as doing so does not interfere with his primary loyalty to God. That, of course, does not turn out to be possible, and More suffers accordingly. There’s a lot to chew over there about a lawyer’s duty to a client conflicting with his duty to his conscience, a subject we should talk about more than we do.

I’m partial to the real Thomas More for a host of personal and professional reasons, but the literary More in Bolt’s play makes a fascinating study in lawyers’ moral responsibilities. He’s one of two fictional professionals who I think really illuminate lawyers’ lives in this regard: the other is More’s opposite number, Stevens, the butler in Kazuo Ishiguro’s The Remains of the Day, who represents the consequences of allowing your employer’s judgment to substitute for your own (if you’ve only seen the movie, do yourself a favour and read the book, too — it focuses less on the thwarted romance and more on the moral obligations of servanthood).

For all I loved To Kill A Mockingbird, I never actually found Atticus Finch to be that intriguing a character as a lawyer. He’s too idealized and heroic to serve as a realistic role model for lawyers — never makes a mistake, always does the right thing. For my money, he’s a far more compelling figure, and a better role model, when viewed solely as a father (and that’s as far as I’ll go to mark Family Day).

So: what’s on the nearest page 123 to you today?

What’s particularly interesting about this article, however, is the unattractive picture of the Western legal profession that comes through — this is the image the profession has managed to develop for itself throughout the rest of the world. If your North American or European firm wants to be a global player in the law, you should be aware that your reputation is now preceding you.

Some highlights:

On training: “A recent study conducted by Harvard Law School and LexisNexis reveals that 75 per cent of US law graduates admit they do not have the necessary skills to practise law. … It is typical for Western law students to graduate from law school without ever having learned how to draft a contract. …[Y]oung lawyers receive no organised, on-the-job training. They learn as they go along, by trial and error, with their firms’ corporate clients footing the bill. … Our training program accomplishes what Western law schools and law firms have failed to achieve, namely, the systematic preparation of young lawyers to provide quality legal services.”

On language barriers: “[A]t least in the US, law graduates for the most part are notoriously incapable of writing effectively in English. The problem is so severe that some large US law firms now assign a writing coach to each incoming associate. However, most lawyers in the West never receive this kind of training. By contrast, reputable legal services offshoring companies in India train all their attorneys in English writing.”

On certification: “[I]n part because India has no bar exam, some commentators have suggested that Indian lawyers working for legal offshoring companies should be required to pass a certification test.… But who will develop a certification system for Western lawyers, many of whom lack skills needed to practise law properly? Regarding bar exams in the US, they are useless, except as a public relations device for the legal profession. As noted by New York University Law Professor Harold I. Subin, they test ‘nothing relevant to the practice of law…. The bar exam [serves] the same socializing purpose as hazing … drinking in useless legal data is the profession’s equivalent of swallowing goldfish or great quantities of beer, and leads on exam day to a similar regurgitative result.’”

On costs: “[E]xamine what a client pays for when it hires a typical large Western law firm (although there are exceptions): (a) staggering real estate costs … (b) having most of the work done by newly minted … associates who admittedly lack many of the skills needed to practise law, but yet are paid a starting salary of $160,000 per year, and who are learning as they go along, at the expense of clients … (c) padding of time sheets and/or an unnecessary stretching out of work assignments, encouraged by an hourly billing system that rewards fraud and inefficiency … and (d) generally a high-quality level of service, due to editing and supervision by talented senior lawyers, but at a cost that clients are no longer willing to tolerate.”

On ethics: “[V]irtually all major law firms in the US routinely use non-licensed attorneys to perform legal work, and they bill their clients for it. The hours of summer associates, who have neither graduated from law school nor passed a bar exam, are billed out to clients at rates as high as $260 per hour or more. Moreover, the work of first-year associates, who start work at law firms before their bar exam results are in (and who often fail on their first attempt), is billed out to clients for as much as $360 per hour or more. This is all permissible, because the work is supervised by licensed attorneys.”

On corporate counsel: “Corporations, not Western law firms, will drive the market in the years ahead. … For example, a major Detroit auto manufacturer approached SDD Global for offshore litigation support. When we asked what the reaction of their usual outside law firms would be to most of the legal work being done in India, the answer was unambiguous: ‘Our outside law firms will operate the way we tell them to.’”

On the future: “[T]he growth and development of the legal offshoring industry in India will help bring about a major change in the way legal services are delivered in the West. This will be a monumental, history-making development. It will help economies around the world as well as India’s. It will contribute to a better, more equitable world, in which artificial barriers across countries and continents do not hold back the most efficient and enthusiastic people from doing what they do best.

This post originally appeared at Slaw on October 1, 2007.

In retrospect, I can see many things I should have done differently. But at the time, I was seriously peeved that no one had prepared me for this, that I hadn’t the first clue of what the practising Bar required. That’s been a pretty common experience for many new lawyers before and since.

Many lawyers blame the law schools, using overworn clichés like “ivory towers” and “here in the real world.” But law schools aren’t trade schools, and I don’t think they ought to be. A good legal education teaches students that the law has a history, a purpose and a soul, that law matters; it’s an incredibly rich and fulfilling experience that gives us the right to call ourselves “professionals.”

But law schools will have to adapt to changing circumstances in the years to come; they won’t really have much choice.

It’s not just the schools — law societies, CLE providers, and the practising Bar all share in the responsibility for a legal education system that’s not working very well now and will work much less well in future. They all have to face the question: what training and education do lawyers require in order practise law in the 21st century?

I don’t think we need to do much work on substantive, “black-letter” law: we’re very good at teaching ourselves that, from first-year law school through to advanced CLE seminars. What’s missing from legal education right now is the wherewithal to serve clients well and conduct ourselves professionally.

Here are just a few of the skills in which lawyers need thorough, professional training from the start:

Client relations: First and foremost, empathy: understanding your clients’ personal turmoil and showing them that it matters to you. Secondly, setting mutual expectations for your client relationship. Then the basic stuff – regular communication, retainer letters and the like.

Business acumen: How to run a practice without falling afoul of the law society. How to balance a budget and operate a small business without falling afoul of the bank. How to get clients to pay you on time, if at all.

Business development: How to find clients, keep them, and get more clients as required. How to market yourself in a hundred different ways. Every new lawyer should be given a starter Website upon their call to the Bar.

Dispute resolution: Moot court experiences in school are great. Moot settlement conferences and moot collaborative law sessions would be much better, since most lawyers face these situations far more often.

Legal ethics: Lawyers require a solid grounding in both understanding the law’s moral compass and resolving modern-day bugbears like conflicts of interest and trust-fund usage. Lawyers should know their Code of Professional Conduct like preachers know their holy books: chapter and verse.

I’m sure you can think of others. These are skills that lawyers will require their whole professional lives, yet most of us don’t learn them until we’re several years into our careers. That has to change. Bar admissions courses are improving all the time, but they can only scratch the surface.

Twenty-first century legal education is really the subject of a book, not a blog entry. But here’s a bullet-point list of what I think might change in legal education in the years ahead (I say nothing about whether these possible changes are good or bad):

–> If students aren’t better prepared for practice when they enter their articling year, more and more firms will refuse to accept articling students at all. Law firms’ profitability expectations will trump the historical and professional responsibility arguments for articling. If that happens, the bar admissions process will be thrown into crisis.

–> A power struggle will take place among law schools, law societies and the largest law firms over what sort of education lawyers need and who should pay for it. Law schools, which have the least leverage of the three, will lose badly if they haven’t taken steps before then to mitigate their damages – perhaps by introducing “practice streams” that students can choose after two years of traditional education.

–> Law firms that donate millions to law schools will demand that partners be allowed to join the faculties as either professors or board members overseeing curriculum choices. Meanwhile, the last of the massive boomer generation of professors will move into retirement. The combined effects on law faculty culture will be profound.

–> CLE will finally get the critical analysis it needs, especially if mandatory CLE becomes a reality. CLE providers will have to prove their offerings help reduce E&O claims and result in satisfied clients; CLE providers unaffiliated with traditional legal institutions will do surprisingly well. Internet-delivered CLE will be the norm, not the exception. Adult learning techniques will replace the tired lecture-hall presentations so common today.

–> If lawyer self-governance is ever seriously threatened, state actors might decide that lawyers haven’t been doing a good enough job of educating themselves. Government directives that legal training must become more rigorous might prove quite appealing to entities that would benefit financially from every extra year required to enter the profession.

–> In the end, lawyers might require as many as six years of training before being allowed to practise law – which would bring them more in line with other professionals, such as doctors, who currently face more gruelling paths to the lofty status and revenue heights they share with many lawyers.

Addendum: I think that this issue is most clearly viewed not by asking “What can law schools do to better prepare students for the Bar?”, but “How can the Bar better prepare new lawyers to enter it?” This puts the onus for private-practice training where it belongs — on private practitioners. The Bar should start with a brand new lawyer’s first day on the job and work backwards: what should our newest colleague have learned before now in order to hit the ground running? Then go as far back as necessary to fill that order. The goal is not to try putting old heads on young shoulders — much of what lawyers need can only be learned with time and experience — but to ensure that new lawyers can fulfill even minimum standards of business competency and client service.

Of course, if the Bar does ask these questions, it may find itself turning less and less often to law schools, for which private-lawyer training is not the main priority, for the answers. And that may lead to an entirely new way of viewing legal education.