The necessary parts: one salad spinner, some hair combs, a yogurt container, plastic lids, and a glue gun. The finished product: a manual, push-pump centrifuge that could be a lifesaver in developing world medical clinics. … A team of college students invented this low-cost centrifuge, which can be built for about $30, as a project for a global health class at Rice University. The teacher challenged them to build an inexpensive, portable tool that could diagnose anemia without access to electricity, and the tinkerers got to work.

The students, Lila Kerr and Lauren Theis, found that spinning tiny tubes of blood in the device for 10 minutes was enough to separate the blood into heavier red blood cells and lighter plasma. Then they used a gauge to measure the hematocrit, the ratio of red blood cells to the total volume. That information tells a doctor whether a patient is anemic, which can in turn help to diagnose conditions like malnutrition, tuberculosis, HIV/AIDS, and malaria. … “We’ve pumped it for 20 minutes with no problem,” Theis said. “Ten minutes is a breeze.” It has proven to be fairly robust. “It’s all plastic and pretty durable,” Kerr said.

If you think the multinational makers of expensive medical devices would fight a cheap innovation like this, then let me also introduce you to the Mac 400, a hand-held electrocardiogram developed by General Electric’s health-care laboratory in Bangalore, as reported in The Economist:

The device is a masterpiece of simplification. The multiple buttons on conventional ECGs have been reduced to just four. The bulky printer has been replaced by one of those tiny gadgets used in portable ticket machines. The whole thing is small enough to fit into a small backpack and can run on batteries as well as on the mains. This miracle of compression sells for $800, instead of $2,000 for a conventional ECG, and has reduced the cost of an ECG test to just $1 per patient.

The Economist goes on to explain, in a special report on innovation in emerging markets, what these developments represent: a reinvention of the product development cycle for markets with very limited resources. Like Japan before them, which developed lean production systems to compensate for a lack of physical space and material, India and China (and a few other smart entities) are developing production systems for buyers without much money, mobility or infrastructure:

[Companies] are taking the needs of poor consumers as a starting point and working backwards. Instead of adding ever more bells and whistles, they strip the products down to their bare essentials. Jeff Immelt, GE’s boss, and Vijay Govindarajan, of the Tuck Business School, have dubbed this “reverse innovation”. Others call it “frugal” or “constraint-based” innovation.

Chances are that you, like me, live in an affluent society and are familiar with unnecessary options. Most of us have more consumer choices than we need or could hope to sample, choices that don’t make our lives that much better or happier. Most of us have never used 80% of the buttons on a standard remote control or could even identify what they do. Most of us with elderly parents wish someone would invent a computer with only four functions: “Read email,” “Write email,” “Send email,” and “Check the weather forecast.” Most of us can, for a few cents, supersize the meal we just ordered, even though what we ordered was enough to satisfy us just a few moments earlier. Collectively, we’re hooked on the idea that more is better — and in our low-cost, resource-rich world, that’s an idea both easy to indulge and profitable to sell.

Frugal innovation is what the other 80% of the world needs. In places where resources are scarce but needs are great, solutions have to be affordable, reliable, resilient, easy to distribute, and easy to use. Consumers in these places don’t need the most complete, top-of-the-line, every-optional-extra product or service: they need something quick, sturdy and accessible, something tailored to their restricted circumstances. For a good example, watch this scene from Apollo 13, where the ground crew had to find a way to fix a carbon dioxide buildup in the capsule using nothing but the materials that the astronauts themselves had in their crippled spaceship.

Frugal innovation is also what the legal services marketplace needs. This marketplace, led by its dominant providers in the legal profession, has always tried to offer more and costlier services to more and richer clients, time after time. Its business model assumes that the ability and willingness of clients to pay whatever is charged for the most comprehensive services is inexhaustible, despite the reality that that particular market feature peaked long ago. We continue to focus our efforts on offering more and more services to fewer and fewer people at higher and higher prices. In the short run, hardly anyone benefits except us; but in the long run, we won’t either, because our product development cycle is now out of step with the growing reality of the marketplace.

Most people have very limited resources to spend on legal services, and I don’t just mean money. Obviously, the price of legal services is what discourages many people from seeking them out, but there are other and more acute resource deficits. Time is a big one: the legal process can be tortuously lengthy and complicated, especially in litigation. Moreover, lawyers are notorious for making clients wait months to hear from them. Even the process of learning about your legal situation and finding a lawyer who can help you is so diffused and decentralized that many would-be clients give up after the first hour of searching. In addition, most people work or have family responsibilities during the day; where do they find the time to make their way downtown to a law office during regular hours? These are resource shortages, just as a lack of money is. But by and large, the legal profession hasn’t concerned itself with these shortages, because we’ve made a good living serving the minority of the population that’s willing and able (or obliged) to purchase our services on our terms.

The winners of the 21st-century legal marketplace, however, will include those who offer frugal legal services. They’ll figure out the resource restrictions under which most people labour and will modify their products, services and delivery systems accordingly. They’ll strip down their offerings to the bare minimum to ensure functionality, remove unnecessary features, and automate and externalize as much of their process as possible — not just to streamline costs, but also to give clients hands-on access to those services, to be used on their terms. Frugal innovators will relentlessly simplify and de-accessorize legal offerings, constantly asking themselves: can we make this easier? Are there steps we could remove, features we could do without, elements that add cost without adding equivalent value? Can we make this mobile, scalable, adaptable, or 24/7-accessible? If you’re not asking these questions, I can promise that your future competitors — both inside and outside the profession — already are.

There are three good reasons why lawyers should embrace frugal innovation. The first is that it opens up much of the dormant legal market, teeming with would-be clients who can’t afford much but are absolutely willing to pay it. It’s a categorical falsehood that you can’t make money on low-cost products in low-income markets; ask Wal-Mart and McDonald’s, to name just two consumer-friendly corporations, about their most recent quarterly profits. There’s only one rule for turning a profit: spend less than you charge. The recent leaps forward in technology, automation, project management, unbundling and other cost-reducing measures in the law have provided lawyers the tools to do this. Frugal legal services can generate a profit, so long as they’re offered in an efficient, systematic, cost-conscious way.

The second is that frugal innovation in the law would go a long way towards making access to justice a reality for millions of people. Regular readers will know how outrageous I find our current complacency with a legal system that’s accessible only for institutions, the well-off, and the very poor. The unacceptability of heart disease running rampant in India, with only clunky, immobile, expensive ECG machines to deal with it, is what led GE to develop the Mac 400. What is the legal profession — specifically, what are our biggest, richest, GE-equivalent law firms — developing to meet the needs of millions of people whose lives are harder than they need to be because they can’t afford traditional legal services?

And third, frugal innovation in the law will lead lawyers to rediscover the power and attraction of the basic. We’ve developed a fondness for complexity, not only because it pays more, but also because it satisfies our risk-averse need to cover off all possibilities. Most clients, however, don’t need all or even most possibilities covered off. They just need something they can afford that meets their present demand. They understand that the less you pay for something, the more you take your chances — they accept this trade-off all the time, in every industry and walk of life, and they’ll accept it in the law too, if we just give them the opportunity. It’s time we ended our infatuation with expensive complexity and began offering affordable simplicity again.

Lawyers, as much as anyone else, have become hooked on the “more is better” fallacy; in the future, thanks to frugal innovation, less will be better. Less will be more profitable, more market-aligned, and more socially necessary than ever. The only thing we really need to change, in order to get there, is our minds.

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.

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“Eighty percent of the poor in the United States are unable to afford a lawyer or find pro bono help for their civil legal problems, according to the American Bar Association.” That sentence, from an American Lawyer article last month, is not only embarrassing. It’s also an omen.

The article in question, titled “Unmet Needs,” was part of a special series on pro bono in the United States, including AmLaw’s list of the top 100 pro bono-friendly law firms and a powerful critique of big-firm pro bono by Deborah Rhode. The latter piece highlighted how pro bono at many firms is less an exercise in professional and public responsibility than it is an opportunity to enhance associate recruitment and retention and score some easy PR points. The result, Rhode points out, is that the clients most in need — the “sob stories” and “difficult clients” referenced in the article — are the least likely to get pro bono help from these firms.

It reminded me of a conversation I had last year with two senior local practitioners. Both lawyers were partners in national firms; both were also extensively involved in volunteer and community activities. They were lamenting the pro bono culture that had taken hold in law firms, especially among newer lawyers. Young associates were constantly clamouring to do pro bono work for one socially aware organization or another. “What I’d like to see,” one lawyer said, “is a lot more of them go down to family court and help out some of the unrepresented litigants there. That’s where we need pro bono help right now.”

Pro bono assistance of that kind is just the sort of “unmet need” that the American Lawyer article was talking about. The writers spoke with legal aid and pro bono lawyers across the US and identified five “needs baskets” where the demand for pro bono work is great and the supply from big firms is limited:

1. Representing military personnel
2. Helping the unemployed
3. Easing the load in family court
4. The cracking pro bono infrastructure
5. Serving the rural poor

The first category might be uniquely demanding in the US (and perhaps also Great Britain) right now, but the other four needs baskets are present in virtually every common-law jurisdiction. AmLaw was focusing on pro bono and large law firms, but it seems to me that this is part of a larger pattern of areas systematically under-served by lawyers.

It’s almost received wisdom in our profession that many practitioners couldn’t afford to hire themselves if they needed a lawyer, a statement that I suspect is at least a little exaggerated. But for many people, especially those in the categories above, it’s no joke: they flatly cannot afford to hire a lawyer for anything more than the most basic tasks. Legal assistance is a service that middle-class people, with help from family members and savings accounts, can just about manage. It’s something that working-class people struggle terribly to afford. But for the poor and unemployed, it’s legal aid, pro bono, or nothing. And thanks to the recession, legal aid systems are being cut back in the US, the UK and Canada, while the number of people applying for legal aid is growing.

If you’re a lawyer with a conscience, that should bother you a great deal. But even if you’re without a conscience, you should still be worried by this trend, because it’s about to dovetail with another trend and lead to some serious consequences: lawyer shortages outside urban centers are starting to become endemic in some countries.

Canada: “43 percent of lawyers practising in [B.C.] are now over the age of 50 … in the last 10 years, the numbers of lawyers aged 51 to 60 has doubled, with an average age across the province of 47 years old. In small communities, the aging of the profession is even more pronounced, with an average age of over 50 years old.”

Australia: “[M]any rural and regional practices do not have enough lawyers to service community needs, with 43 per cent of principals indicating that their practice currently does not have enough lawyers to service its client base. The problem looks set to escalate, with a large number of lawyers – many of whom are sole practitioners – looking to retire from practice in the next five years.”

Japan: “The dateline is Yakumo, a small city of almost 20,000 within a legal district of about 50,000. Journalist Norimitsu Onishi reports that it is not unusual for cities five times that size to have not a single lawyer.”

The root causes of most lawyer shortages are the same: aging practitioners ready to wind down their practices, not enough young lawyers willing to move to smaller communities to replace them. It’s not surprising that the US, a country with more than one million lawyers, doesn’t have many lawyer shortages, but less heavily populated states like Maine and Idaho are reporting such shortages already. Many industrialized countries are facing the prospect of communities without enough lawyers to serve the local population.

So from one direction, we have growing numbers of people in dire circumstances needing but not getting lawyers’ help. And from the other direction comes a growing number of non-urban centers without enough lawyers to meet residents’ legal needs. Without question, the demand for legal services is growing — but the supply of these services, how much they cost, and where and to whom they’ll be delivered all lie within the control of lawyers. And as we’ve seen, we can’t always count on lawyers to put the public interest ahead of their own interest when deciding how their supply will meet that demand.

So how do you think this is going to end? Faced with a legal profession unable or unwilling to provide affordable legal services to clients whom and in communities where they have little economic interest, do you suppose governments will stand idly by? Do you think they won’t wonder why it is that lawyers and only lawyers are licensed to provide the great majority of legal services? Do you think they’ll continue to believe that the Unauthorized Practice of Law is a legitimate restraint on the delivery of legal services? Do you think they’ll ever consider that lawyers are anything other than facilitators of legal services delivery?

If you think all these things will come to pass, that the status quo will roll along unchecked, then more power to you. But if not, then you might yet come to believe that the era when lawyers were in control of the legal services marketplace is drawing rapidly to a close.

The idea that we’d be better off with fewer ambulances and more fences is starting to catch on within the profession. But there’s an important question in there: how many fences do you really need? Is it possible you’re installing more fences than can be justified by the reduced risk of accidents? And as sellers of both fences and ambulances, are lawyers sufficiently objective to be the ones making that call?

Ron Friedmann got me thinking about all this with two insightful and provocative posts about reducing corporate legal spend. He argues that institutional clients “need to do a better job assessing risk and deciding what warrants legal attention,” and draws an analogy to the US health care system which, by many accounts, costs so much in part because of rampant unnecessary treatment. If clients took the time to review all their legal spending and figure out what percentage could be eliminated with an acceptably small increase in risk, they could lower their legal spend without dramatically increasing the company’s exposure.

The idea that companies are over-protecting themselves against risk and therefore overspending on lawyers is compelling. Obviously, there are legal costs that can’t be eliminated — if the government tells you to comply with a given regulation or face prosecution, you’re going to comply. But if you separated corporate legal spend into two piles — one for “we need to do this or we’ll go out of business” and “we’d better do this to make sure we’ve covered all our bases” — you might find the second pile a lot higher than you expected. And if you weighed the savings of not covering a given base against its reasonably foreseeable consequences — not the possibility, but the probability of trouble — you might decide you’re buying too much legal risk aversion.

I can see more companies doing just that — figuring out what they can live without in terms of legal coverage and proceeding to live without it. The lawyer’s argument against that, of course, is that even the smallest detail overlooked can lead to devastating liability consequences in court. But as the rise of “good enough” continues, especially in what figures to be an economically difficult period of time to come, I can see rules and regulations being interpreted in similarly “good enough” fashion — threshold standards being lowered slightly, breaches looked upon more leniently, etc. In the aggregate, it could add up to a collective consensus that not every stone needs to be unturned and not every potential risk needs to be run by the lawyers. If that came to pass, the impact on lawyers would be profound.

In his posts, Ron specifically notes he’s excluding consumer legal spending from the discussion. But if anything, I think the reverse applies to the way individuals buy legal services: I think they underestimate risks and under-purchase legal protection. How many people buy and sell a house without using a lawyer, bypassing expertise and institutional protection in order to save a few hundred bucks on a transaction worth hundreds of thousands of dollars? How many people die intestate every year, even with children and extensive assets, because they just never got around to making a will? How many litigants choose to make their own way through our labyrinthine court system?

Individuals’ failure to avail themselves of lawyers isn’t entirely, or even mainly, their own fault, of course. Too often, lawyers have either failed to adequately market the value and importance of their services, or allowed their prices to balloon past the point where many people can afford to hire a lawyer without help from family members or government programs. In my ideal world, you couldn’t get a  driver’s license until you’d filled out even a basic will, and you couldn’t get a marriage license without having to take a basic course in family breakdown, support, custody and access — both at low costs.

Unless and until that comes to pass, lawyers have an obligation — not just for business reasons but also for social ones — to let people know how important these sorts of fundamental legal instruments are and to ensure they’re accessible to the majority of potential buyers. And at the other end of the spectrum, lawyers also have a responsibility to help their institutional clients tell the difference between “need-to-haves” and “nice-to-haves,” and to place the focus of their services firmly on the former. A trusted contractor won’t replace your garage if a repair will do just as well; trusted lawyers do the same.

Over the years, legal spending patterns have become habit-forming: institutions have gotten used to buying ever more risk-avoidance services, while individuals have gotten used to buying only those services that circumstances require them to buy. It would be reasonable, in an extended period of economic malaise, to expect those habits to change. Lawyers who want to stay ahead of dangerous curves like that should spend time thinking about what their clients absolutely require, and changing what they sell — more of some things, less of others — to match.

Essentially, WLB was shorthand for the widespread sense that the demands of a legal career had outstripped the personal benefits it conferred — or, as my father used to say, “There’s not much point in earning a living if you can’t live the living you’re earning.” WLB was applied most frequently within the context of large law firms, where even jaded observers would admit that billable-hour targets had escaped any rational trajectory. Across all firm sizes, though, people looked at the law and saw a career where effort and satisfaction were headed in opposite directions. It was not irrational to think that this could stand some improvement.

(It’s important to recognize, by the way, that WLB was not exclusively a Millennial issue. Lawyers of all ages reported dissatisfaction with the perceived effort/reward ratio of their careers, especially in larger firms — though Gen Y was the most willing to talk about it, at length. Remember that WLB was also often used to describe the plight of older small-firm lawyers whose clients had come to demand legal services far more quickly and cheaply than before, catching the lawyer in a vise between ever more work and ever less time. Wherever legal work seemed to grow beyond the boundaries of “worth it,” we heard about WLB.)

Most lawyers seeking WLB were really seeking an answer to the question: “Does a legal career have to be all-consuming and exhausting?” As to that, I’ve written before that lawyers now work long hours thanks to a competitive economy and our own inefficiency, and that we’ll always have to run fast enough to keep up with our clients. But during the economic bubble, lawyers who asked that question often perceived that the answer was “no.” The demand for legal services sufficiently outstripped the supply of lawyers, such that lawyers could start to dictate the terms of their availability to employers and sometimes even to clients. The whole thing got wrapped up too often in buzzwords like “personal fulfillment,” “family time,” and WLB, but what it really came down to was lawyers’ rational response to market conditions. They had a chance to get more rewards for their time and effort — unfortunately, many of them chose those rewards in $160,000 annual packages.

Now, of course, the market has changed just a little. After 10,000 lawyer and staff layoffs at large US and UK firms, even the most active WLB boosters have toned down talk that might earn them the dreaded “entitlement” label. Articles and posts that reference the term “work-life balance” now do so in an environment of cold pragmatism: Ashby Jones at the WSJ Law Blog and Dawn Wagenaar at The Complete Lawyer provide good recent examples. Realist observers like Dan Hull and Scott Greenfield have gained the upper hand in the WLB discussion — check out this slam-bang debate at Legal OnRamp about “work-life balance” generational expectations.

Where proponents of “work-life balance” went off-track, to my mind, was that they argued the duty to ensure a satisfactory proportion between a lawyer’s work and the rest of her life was an institutional responsibility — that it was up to the law firm, basically. The  firms disagreed, and all they had to do was wait for the marketplace to turn their way to make that clear.

Law firms aren’t going to unilaterally change their business models for the sake of WLB. No law firm ever budged an inch on its billable quotas or offered associates more money and perks because its partners genuinely felt they should be nicer employers — appeals to conscience at partners’ meetings don’t have a roaring record of success. Firms change their working conditions as the talent market dictates. In a seller’s market like the one we’ve just had, they play nice; in a buyer’s market like this, they don’t. If almost every potential legal recruit said, “I’m not going to work at that firm — the demands are ridiculous and the benefits to my career aren’t nearly worth it,” and did so for several consecutive years, then you’d see the firm think about changing its business model. That didn’t even happen during the boom, and I doubt it’s going to happen now.

The thing is, “work-life balance” is a lawyer’s personal choice and responsibility. If money and “prestige” are that important to you, you’ll sign up to work 3,000 hours a year at a law firm, and you can reap the rewards and suffer the personal consequences accordingly. If keeping your work hours within a predictable box is important to you, you’ll be seeking out public-sector jobs or setting up a practice with just enough reasonable clients to pay the mortgage — and you’ll always have one eye on your bank statements. When we talk about “balance” in lawyers’ lives, we’re really talking about the tradeoff everyone has to make between compensation and lifestyle. If WLB stood for anything, it was for the fact that we all have the right and the obligation to make that tradeoff on the terms we want.

But here’s the caveat, and here’s where “work-life balance” proponents were right –  most lawyers in their first several years of practice don’t really have that choice. There are two institutional flaws in our system that hurt our newest colleagues. First, there’s the unspoken symbiosis between law schools and law firms — the former charge students huge amounts of money and provide little practical lawyer training, allowing the latter to hire low-skilled and heavily indebted graduates to fill virtually the only positions lucrative enough to pay off their loans. And secondly, billable-hour targets for associates at more than a few firms simply can’t be achieved without damage to one’s health or ethics, or both. These problems are neither natural nor inevitable — they result from our neglect of the system, and they annually damage our profession’s standards and morale.

In the heyday of WLB, we were at least starting to talk about these things, and the whole debate should have shined a light directly on them. What we were groping towards, under the banner of WLB, was the gnawing sense that most everyone starts their legal career behind the eight-ball for no particularly good reason. Now that the moment has passed, I worry that WLB will be relegated to the status of a mere generational quarrel during a freak economy. We need to do better than that. There are still some serious institutional problems for our profession to resolve — dealing with them openly and effectively would be the kind of legacy “work-life balance” deserves.

“Relatively early in the 20th century,” [Dean Erwin] Chemerinsky observes, “preparing lawyers for the practice of law was relegated to the bottom rung of law schools, and the top law schools didn’t see it as their primary mission. Could you imagine if a school graduated medical students or dental students who never treated a patient? Yet most law students have never had a client.”

The new school aims to change all that, starting with its first year, when law students will be introduced to the practical tools of their profession through a lawyering-skills class that integrates clinical experience. Then, in their second year, students will work through simulated fact situations, honing their skills in a particular field of civil or criminal law, so that when they are ready to register for a third-year, semester-long clinical course, they will already have a working knowledge of how to represent clients. “My central vision for the school,” says Chemerinsky, “is that we will do the best job of any school in the country in preparing students for the [actual] practice of law. A top-quality clinical program is key to achieving this.”

Among UC-Irvine’s other goals is to encourage more interdisciplinary study among law students and produce a healthy ratio of graduates taking public-sector jobs. It’s a bold experiment, and the odds are long against it, but there’s no better time than this for a new kind of law school to take root within the profession. Perhaps needless to say, I think this is a great idea.

But what really caught my imagination, and sparked a whole other line of thinking, was one other aspect of the UC Irvine model: thanks to funding by a clutch of law firms, the university plans to offer every student a full scholarship — that is to say, free tuition. That’s a concept that, among other things, cuts to the heart of what law schools are for. If the idea behind a law school is to turn out the world’s best lawyers — and UC Irvine appears to be aiming that way — doesn’t it make sense to remove barriers to that goal raised by the ability of the best candidates to afford the program? And in turn, doesn’t that get us thinking a little about the role of the marketplace in the formation of lawyers and the services they will eventually deliver?

This ended up, interestingly enough, dovetailing with a growing discussion within journalism circles about the future of the newspaper. You’ve certainly read enough articles about it and heard me talk about it here before — the fact that most everyone accepts newspapers are dying (and TV is next) and that the web is the immediate future, but that no one knows how to build a profitable business model that can sustain a news-gathering organization.  Premium subscriptions, micro-payments, online advertising — it’s all been tried and nothing has really worked yet. So now people are starting to talk about radically different solutions.

In The Guardian, Maura Kelly looks at non-profit newsrooms and start-up media organizations like GlobalPost. But interestingly, Bruce Ackerman (of Freakonomics fame) and Ian Ayres effectively combine these two approaches and have proposed (also in The Guardian) national endowment systems for investigative journalism:

In contrast to current proposals, we do not rely on public or private do-gooders to dole out money to their favourite journalists. Each national endowment would subsidize investigations on a strict mathematical formula based on the number of citizens who actually read their reports on news sites. …

[C]ommon sense, as well as fundamental liberal values, counsels against any governmental effort to regulate the quality of news. So long as the endowment only subsidizes investigative expenditures, in-depth reporting will get a large share of the fund – provided that it generates important stories that generate broad interest.

The endowment must monitor media hits and circulation counts. This is doable. Advertisers already rely on independent audits. So can the government. Some governmental monitoring of financial matters is also necessary. News organizations would otherwise be tempted to obtain subsidies for marketing and business operations. Without minimizing the problems involved in institutional design, the creation of an effective and disciplined national endowment seems entirely realistic.

The driving theory behind these efforts to save journalism is that investigative reporting – finding out what people don’t want to tell us — is a public good that’s too important to be left to the vagaries of the market. Just as we don’t rely on privately run firehouses to keep our cities from burning down, we can’t rely on privately run media companies to bring pressure to bear on our society’s power brokers. Newspapers, as Seth Godin says, wrap two cents of journalism with ninety-eight cents of overhead and distraction. Investigative journalism suffers from the tragedy of the commons: everyone benefits from its existence, but hardly anyone is willing to pay for it by itself. By removing (or at least reducing the impact of) market forces from its implementation, we can help investigate reporting to flourish and deliver real benefits of transparency and accountability to our society and its institutions.

What does any of this have to do with UC Irvine’s law school and its full-scholarship program? Think about this: what if every law school in the world had free tuition? (Or, more accurately, no tuition.) What if interested third parties covered all the costs of legal education in order to ensure it was done properly, freed from the shackles of market pressures and US News & World Report silliness? Now think about this: what if lawyers were free?  What if we decided that the provision of legal services was so important to the operation of a just society that market mechanisms preventing access to justice should be removed? What would our profession look like then?

Well, it’s a safe bet that our graduating law school classes would be far more diverse, especially socio-economically: the built-in bias in favour of applicants from wealthy backgrounds would fade. It’s also a safe bet that a law school curriculum designed to maximize the benefit of each graduating lawyer to the public good would be incredibly different from what most law schools now offer. Also very different would be the qualifications required of the people offering the courses.

What would become of the private bar? Remember, lawyers in this system aren’t charging fees directly; they’re billing the government or a non-profit entity for their work (but not, I’ll wager, for their time). Rationally, the funding organization would want to create certain standards of competent advice and productive service; it would be interesting to see which ones they came up with. Law firm compensation and advancement likely would not be based on hours billed but on other criteria — perhaps client satisfaction, risk reduction, value generation and so forth. Solos would be plentiful, mega-firms less so. Millionaire lawyers, like millionaire media and performing artists of the near future, would be rare. More people would go into the law not to make money, but to serve society. (Many doctors are already familiar with this sort of model, and I think those who have to answer to a for-profit entity would describe a very different quality of service than those who answer to a non-profit entity.)

This is, I readily admit, a thought exercise rather than a practical or even fully desirable scenario; think of it as Imagine for lawyers. There would be plenty of complications and downsides to a publicly funded legal profession. But there are plenty of complications and downsides to our current professional setup too. Today, law is a private-sector business that provides what is very arguably a public good. It’s fair to surmise that at least some of the difficulties and tensions between lawyers and society result from that misalignment.

If lawyers were considered a public good — if everyone knew and could access all their rights, could easily build legal risk management and problem avoidance into their lives and businesses, utterly free from worries about the direct cost because we were all collectively funding it for our mutual benefit — what sort of legal profession would we end up with? What would we lose? What would we gain?

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Media: I’ve been disappointed with how the MLM (mainstream legal media) has been covering the financial turmoil. Most of the focus at the legal media giants has been on which law firms have bagged the corporate work on the breakup, merger or bankruptcy of which financial behemoth. I’m not reading a lot about the human toll of these institutions’ collapse, or about the implications for the corporate legal sector as a whole. And I’ve yet to hear anyone ask the question that people were asking in the wake of the Enron scandal: where were the lawyers? Many global law firms grew very rich off the same hideously complex financial instruments that everyone is now denouncing as having been clearly unstable and unsustainable. Did lawyers not see the disaster coming, or did they prefer not to look that deeply or that far ahead? It’d be nice if the periodicals that lionized these lawyers in the good times asked these questions in the bad.

Clients: Very few lawyers (especially among readers of this blog, I’m guessing) count among their clients the world’s largest banking and financial institutions. But every lawyer has clients who read newspapers and watch television news, and these latter two vehicles have been brimful lately with dire comparisons (do a Google News search for “worst crisis since the Depression” and marvel at the results) and grim forecasts. Ratcheting up their audience’s anxiety levels is great for business, but the end result is a population-wide injection of stress. Bottom line: your clients are probably worried about the handbasket they’re in and where it’s heading. Now might be a good time to drop them a line with some reassuring words and making yourself available to talk (not on billable time, obviously). You don’t need to provide them with expert financial analysis; but you might provide them with an attentive ear, a sympathetic outlet for their anxiety, and a simple reminder of what lawyers are supposed to do: care sufficiently about their clients to be available in difficult times.

Community: A lot of people have lost and will yet lose their jobs in this crisis, and the burden of cleaning up this mess will be borne around the world and well into the future. Harder times than many of us are used to could lie ahead. So this seems like an appropriate time to think about those members of our community who couldn’t dodge these bullets, or who already suffer from misfortune on a greater scale. We’re about to launch our annual United Way drive here at the office, and as the campaign chair, I see and hear a lot about people in our community who never had a chance to get where we did, or who suffer daily from poverty, abuse and mental illness. Lawyers talk a good game about giving back to the community, and many walk that talk — but we need more to step up. They say lawyers thrive in both good and bad times; if so, then it’s even more incumbent on us to help out where and when we’re needed.

Stock market analysts are talking detachedly these days about all the investing opportunities this crisis affords. You might want to give some thought to the personal, client and community opportunities that are opening up as well.

You know, I read a book a few years ago that helped reshape how I view geopolitical and sociological change. The Fourth Turning contends a whole bunch of things, not all of which I necessarily buy, but for present purposes, the most significant is that roughly 80-year chunks of history can be divided into four “seasons,” and we’re now firmly into Winter: a period of destructive crisis. Whereas the preceding Fall (by my estimate, from the mid-’80s to 9/11) was a time of institutional unravelling and decay, Winter is a time of dynamic upheaval, when an old civic order is replaced with a new one. Change and reform that seemed impossible in the Fall come fast and furious in Winter, and there’s no guarantee the change will be for the better.

Looked at in this context, the waves buffeting the legal profession can be understood as part of a cyclical pattern of evolution rather than an unforeseen bolt of upheaval. We’ve been talking about reform in the practice of law for decades — the first article calling for the death of the billable hour probably dates from the Jurassic Era — but the social and institutional paralysis of the past couple of decades has frustrated these efforts. Now, though, greater forces than simple goodwill are in motion, and boulders that once seemed impossible to move now suddenly shift with greater ease than ever. All of which means it’s time for us to pause and take stock of where we’re trying to go.

Look, if you’re reading this blog, you’re aware of the changes manifesting themselves in the law, and probably you’d like to see things change for the better: a more effective and fulfilled legal profession, a more informed and satisfied client base, a more focused and responsive legal education system, a fairer and more accessible justice system, a more collaborative and innovative spirit of lawyering. Those of us so motivated constitute a small minority in the legal community, but we’re growing. And I’m greatly cheered by the thought that at this time of crisis in our profession, we have the means and the opportunity to help direct the forces of change into positive channels, and to help make the profession better than it is and maybe even as good as it needs to be.

But there’s no sugarcoating the fact that change is frightening and really hard. Success, or at worst survival, in a Winter of crisis depends on letting go of old institutions and structures while holding tightly to the higher meanings and principles built into their original architecture.

Today’s highly compromised traditional law firm structure could happily crumble, so long as the professionalism, collegiality and sense of service that underlay its original construction survived the wreckage. Every law school in the world could close tomorrow, so long as the ones that opened the next day retained from their predecessors the duty to deeply inform the consciences of their students in stewardship towards clients and justice for all. The changes that are coming are no cause for panic — they’re natural, they’re inevitable, and you can ride the waves they create if you’ve bound yourself not to the trappings of our metamorphasizing profession, but to its binding values.

So when the waves hit you and your current platform, be ready. You can survive the dismantling of your platform, no matter what it is and how big a crash it makes when it falls, so long as you’re ready to leap, and so long as you’ve packed the essentials: a big picture of the changing landscape and an ample supply of the timeless characteristics that make this profession great.

Wherever you are, stay poised to move quickly. The safest place to stand during an earthquake is in a doorway.

The idea is not universally popular. Opponents raise two main objections: that reducing pro bono to a commercial consideration undermines the altruistic nature of the work for both provider and assistee, and that it’s unfair to single out lawyers when no other suppliers of professional services to government face the same obligation. Supporters counter that the government is leading rather than mandating, that the requirement is far from onerous, that legal services are uniquely in need of pro bono provision, and that many law firms now take pro bono seriously as a fundamental element of the business, driving up its adoption throughout Victoria.

I think it’s a great initiative, especially because it seems like a work in progress. One of the firms involved in the program suggests two improvements if it goes Australia-wide: that the government increase its legal aid and community legal sector funding, to make clear that pro bono is not and never will be a substitute for legal aid; and that the government continues to be prepared to waive conflicts claims in pro bono cases involving the government as a party. Add these two elements, and this might be pretty close to a perfect system.

In fact, I think it’s exportable — and not just outside Australia. While it’d be great to see governments in other countries adopt this program, I don’t see any reason why large corporate clients couldn’t do the same thing.

Multinationals’ legal budgets can far exceed what your average state or provincial government spends on outside counsel. Why not create an arrangement by which law firms that want these companies’ work carry out a minimum amount of pro bono, tied (as in Victoria) to the value of the client billings? The company benefits from the good PR (especially if it already has a corporate social responsibility program), the firm benefits from a deeper client relationship (and the chance to give its young lawyers meaningful work on pro bono matters that can impress the client), and the people or organizations who receive these services get the help they need.

Of course, many law firms already have pro bono programs in place; but many more don’t, or maintain them mostly as a recruiting tool and retention pacifier. That’s largely because pro bono isn’t the integral part of many law firm cultures that it once was, for a variety of historical, economic and generational reasons.

I don’t think lawyers are intrinsically less inclined to help the less fortunate than they used to be. But I do think one of the victims of the gradual debasement of law firm culture is the once-common notion that providing legal help to worthy causes is a natural, everyday part of the business model. The firm that considered pro bono a nice optional extra used to be the exception; nowadays, it’s more the rule. Drafting clients, both public and private sector, into the pro bono effort could do wonders to galvanize law firms to reverse that trend.

And wouldn’t it be great, for both lawyer and client, to know that every new matter assigned, every new retainer accepted, means someone else somewhere in desperate need of a lawyer’s help is going to get it?

Lawyers are sworn to be advocates. It’s their duty. They take a side and they argue it. They’re not supposed to tell the truth, they’re supposed to argue a point of view. … Marketing culture has become a culture of lawyers. Apparently, marketers are now advocates sworn to argue on behalf of a client. ….

The lawyer works with constituents who fully expect him to be an advocate. The judge, the clients and the jury (hopefully) understand that he is making a case, not telling the truth. Marketers work in a different world. As marketing has transformed from a specialized subset of business to a ubiquitous element of society, marketers still have the chance to be believed. But trust belongs to statesmen, not lawyers. People don’t say, “I trust her, she’s the lawyer for the other side.”

Lawyers have a choice to make, too. We can reinforce this reputation as skilled and dangerous weapons to be deployed and applied as needed, at a time when trust is becoming intrinsically important to business and consumer relationships; or we can make a real effort to reinvigorate the role of trust in our professional culture, giving it to and expecting it from each other and our clients.

What’s most disheartening about our poor reputation for trust is that lawyers are amazingly trustworthy as individuals, possessing (in my perhaps biased view) more courage and moral fiber than can be found in many other walks of life. And this doesn’t evaporate upon human contact: many lawyers have thriving direct relationships of trust with both colleagues and clients.

The problem is that our professional culture has come to view trust as just too risky — the fear of exploitation and disappointment has had a disproportionate impact on our willingness to trust, and that has damaged the standards to which we hold ourselves and each other. Every lawyer thinks he or she is trustworthy, but for some reason is reluctant to extend that belief to others.

So we don’t trust our colleagues to live up to their partnership commitments or act in the firm’s best interests; we don’t trust our juniors with important cases or meaningful client contact; we don’t trust opposing counsel to act in good faith; we don’t trust clients to behave reasonably or honourably when reviewing our work or our fees. Day by day, trust plays a less and less important part in our views and decisions; we come to expect, perhaps based on a few direct or anecdotal examples, that everyone else out there is playing the system, and we come to believe that trust is naive.

But lawyers can’t do without trust; it’s oxygen to us. If we don’t subscribe to the importance of truth and faithfulness in our relationships (and note that “trust” and “truth” share a common Old English ancestor, trēowe or “fidelity”), we’re just not ourselves. Two people who understand better than most this central role of trust in the lawyer’s life are David Maister and Charles Green. A decade ago, David wrote an article called A Matter of Trust, which identified the essential role of trust in professional relationships:

I will trust you if I believe that you’re in this for the long haul, that you’re not just trying to maximize your own short-term benefits of our interactions. Trust is about reciprocity: You help me and I’ll help you. But I need to know that I can rely on you to do your part and that our relationship is built on shared values and principles. … [T]he more you are trusted by your clients, colleagues and subordinates, the more you will get from them and the more you will thrive professionally and personally.

And just today, Charles made a blog post about the significant role that trust plays in improving the overall state of a profession:

Most service providers over-rate credentials and a track record, and underrate the power of telling the truth—all of it. Honesty, transparency, truth-telling, full disclosure—these are the things that lay bare motives, and convince others that nothing is being hidden.…

[I]n almost any population (all right, so maybe Wall Street might be an exception), the willingness to behave at a level of trustworthiness beyond the norm for that population will itself tend to raise the level of trusting as a response. Simply put, people respond to trustworthiness in a reciprocal manner.

It’s easy to assume the worst about others, to let our actions be guided by the fear of exploitation — it absolves us of the need to take the risks of believing. But you know, nobody ever said law was easy, and trusting others can be one of the hardest parts. It’s time we engaged this challenge.

So we need to make trust fashionable again. We need to again make trust — the courage to give it and the honour of receiving it — the highest goal and the best accolade for lawyers, so that those unwilling to (or unworthy of) trust are seen as the exceptions, not the rule. We need to demonstrate that trust is better, more rewarding and more appealing than all the fears and negativities that are infecting our professional culture. We need to make sure lawyers are never presented as the opposite of statesmen again.

Take a deep breath. Make the effort. Be a lawyer worthy of trust — and start treating your colleagues and competitors as if they’ve made the same choice.