Could clients drive firms to do more pro bono?

Australia, the legal profession’s innovation laboratory, is busy delivering another dose of fresh thinking. The state of Victoria is requiring all law firms that take on legal work for the government to perform pro bono work as a condition of the retainer — specifically, to the tune of 5% to 15% of the total value of their government contracts (most choose 15%). According to an article in the May 2008 issue of the New South Wales Law Society Journal, the scheme is now being considered for introduction countrywide.

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. Continue Reading

Restoring the culture of trust

Seth Godin served one up on the legal profession last week, and he wasn’t even trying. He was writing about marketers and their responsibility to serve a greater interest than the narrow, short-term goal of increasing a client’s sales. He identified two points at opposite ends of an aspirational spectrum — statesmen and lawyers — and told marketers to choose between them. His critiques of lawyers are devastating for their matter-of-factness:

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. Continue Reading

Professionalism reloaded

The Law Society of Upper Canada has just published the papers submitted as part of the Chief Justice’s Tenth Colloquium on the Legal Profession, which was held here in Ottawa last month and at which I appeared as the keynote commentary speaker. If you’re battling insomnia and would like to read the full, 6,700-word version of the brief remarks I delivered, you can find my paper here. But take the time to review the other papers too, especially those submitted by Margaret Ross and Justice Michael Moldaver — all these works contain challenging and provocative thoughts that every lawyer should take time to consider.

Life after lawyers

We need to start thinking about what the post-lawyer justice system is going to look like.

I can see how this might be an absurd or even heretical notion to some people. But there’s reason to believe that lawyers won’t be an essential part of the legal system in the future — and if so, our profession has to come to grips with what would mean, for us and for society generally.

I’m thinking about this because we’re preparing our cover story for National’s June issue, on the problems faced by family courts across Canada (and quite likely, in other jurisdictions) caused by self-represented litigants. if you’ve been inside one of these courts lately, you know what these problems are: backlogged dockets, mistreated witnesses, judges obliged to act as de facto counsel, wasted court time — and paying clients in the middle of it, wondering why they bothered to hire a lawyer since their spouse is doing nicely without one.

But here’s the problem: it’s been like this for more than a decade. We wrote about the pro se crisis in an October 1999 cover story titled “Who needs a lawyer?” (Sorry, no link — this was the Pleistocene Era, Net-wise.) And at a certain point, crisis becomes commonplace: we simply adjust to it. I think we’re perilously close to that stage in family law right now — people are getting used to the idea that family justice is a lawyer-optional event.

I’m coming to think that family law is the canary in the coal mine. Every day, more things that used to be the exclusive bailiwick of lawyers are automated, down-marketed and commoditized by non-lawyers. You already know this if your practice involves transactional matters like wills and real estate. But the pro se trend in family court shows that litigators aren’t immune either — as if the rise of mediation didn’t make that clear years ago.

We still talk about how we can “fix the problem” of people going without legal representation. But there are two big elephants in the room that few lawyers seem interested in talking about. The first is that the cost of retaining our services makes us largely inaccessible to all but the rich and the very poor, and that as long as we operate in a rarefied, self-regulated, protected marketplace, those costs are not going to fall.

The second is that a family court system with fewer lawyers and more self-represented parties is, no question, slow, inefficient, lopsided and chaotic. But you know what? It still works. Courtrooms still open their doors every morning, support is still mandated, and custody is still awarded — with or without lawyers’ involvement. We should be extremely nervous about the message that’s sending to the general population about just how indispensable we really are.

Lawyers are now a luxury good, but we increasingly deal in commoditized services. If you want to know where that disconnect leads, drop by your local family court sometime.

Professionalism revived

If you’re interested, here’s a version of the remarks I delivered this morning at the Chief Justice’s Colloquium on Professionalism here in Ottawa. Many thanks again to the organizers for inviting me to speak!

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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. Continue Reading

Seeing justice through clients’ eyes

At the moment, I’m working on a paper about professionalism in the law, tying it closely to lawyers’ mandate to serve the best interests of others, including clients and the public. I thought you might be interested in this brief excerpt; I’d certainly be interested in your thoughts about it in return:

There is a fundamental disconnect between how lawyers view the justice system and how clients view it. Lawyers are trained, from the first day of law school, to get the right result, no matter what. We are steeped in the idea that justice must always be done and must always be seen to be done, whatever the costs.

The underlying theory of the common-law adversarial system reflects this: two learned advocates, zealously advancing their clients’ cause, will produce for an independent judge the means by which the correct result can be identified and proclaimed. The costs involved in reaching this result, in terms of time, money and impact on people’s lives, are, from the lawyer’s point of view, of secondary importance to the overarching goal of the system: justice must be done.

To see an illustration of this philosophy, consider the discovery process, a major contributor to the length and cost of trials. (Needed reforms to the process were endorsed by former Ontario Associate Chief Justice of Ontario Coulter Osborne in his recent civil justice report.)

Lawyers are trained to believe that anything that can be construed as potentially evidentiary should be made available for them to sift through. Inclined by both nature and training to be thorough to the point of perfectionism, lawyers want access to every stone for the purpose of turning it over. Similarly inclined towards risk aversion, lawyers fear missing any relevant point, no matter how small, and are accordingly driven to ensure that every box has been checked. The result is a massive overabundance of attention to the trees and too little regard for the forest. Continue Reading

Page 123, and More

It’s a holiday in many North American jurisdictions today (including mine — someone decided that a day off in mid-February needed the patronizing label “Family Day”), and I’m at home working on a couple of projects anyway, so this seemed like a good day for something a little lighter. From Michel-Adrien Sheppard at SLAW comes this neat meme about random wisdom: open the nearest book, turn to page 123, read down five lines and write out the three sentences that appear next.

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?

If I had two billion dollars

There is persuasive authority for the proposition that if I had a million dollars, I’d buy your love. So what would I be able to buy with two billion dollars? Apparently, a whole lot of wide-eyed attention and breathless commentary from various legal media outlets. That’s pretty much all I’ve seen over the last few days after Latham & Watkins, DLA Piper and Skadden Arps each announced that it had broken the $2 billion revenue barrier in 2007.

Now, if this is the sort of thing you like, then the foregoing links will give you more than enough to pass the weekend, what with the debates over total firm revenue versus profit per partner versus profit per equity partner, each metric relatively able or unable to determine the richest and/or most profitable large law firm in the world. For myself, I’d like to step back here and suggest that the more we obsess over law firms’ enormous revenue or profit figures, the farther away we travel from why we’re in this gig in the first place.

It bears repeating that lawyers, like the laws that enable their businesses, exist for the purposes of clients, not the other way around. I constantly see lawyers get that formula backwards, viewing clients primarily as a means to their own ends rather than as ends in themselves. Our profession is deeply immersed in the concept of clients as sources of work, suppliers of problems, lifelines of status, fonts of revenue — as entities from whom we receive, rather than to whom we give. A lot of lawyers, subconsciously or otherwise, regard clients as holding value only insofar as they provide us with the raw material of lawyering.

Kant could have told you how categorically important it is to treat people as ends in themselves, that striving to enable another’s dignity and happiness is the overriding purpose of human relationships. That, fundamentally, is why law remains an important calling and (done right) an immensely fulfilling vocation. It’s no coincidence that law, medicine and ministry — each centered on alleviating unhappiness and enhancing the human condition — were the first three lines of work to be considered “professions.” If we want to understand what we mean by professionalism, we need to remember where the word came from. Continue Reading

It’s still not funny

I can understand why a lot of people tell lawyer jokes. I will never understand why some lawyers do.

Jokes about people in positions of authority — political leaders, clergypeople, doctors and lawyers — trace their lineage back centuries. They’re grounded in people’s real need to exercise some sort of control over or resistance to the authority these figures represent. If you can’t topple el presidente, you can at least mock him, safely, behind closed doors. Lawyers have been powerful figures in society for as long as the profession has been around, so it’s natural that jokes have evolved as a way to cut lawyers down to size and bring them down to a more everyday level. That’s understandable and, from a social point of view, entirely healthy.

My problem with most lawyer jokes is that they’re abusive. Good humour turns on incongruity or unexpected developments; the humour in most lawyer jokes, such as it is, turns on the execrable nature of the lawyer. To the extent he speaks or acts in the joke, the lawyer is greedy, dishonest, stupid, destructively selfish, amoral and nihilistic. (And note that many lawyer jokes don’t even require the lawyer to be more than a silent caricature — he’s just the dead object in the road in front of which there are no skid marks.)

Jokes that hinge on people being lumped into a category aren’t jokes, but stereotypes — if the jokes were really funny, they wouldn’t have to lean on the crutch of prejudice. They dehumanize people, denying them the dignity to which they are fundamentally entitled and making the “joke” easier to swallow. The lawyer in the worst lawyer jokes is not a person to be humbled, but a thing to be abhorred. Yet that doesn’t keep people like the pending Republican nominee for president from telling a particularly unfunny and cruel lawyer joke to boost his own popularity. Continue Reading

The rookie says thanks

I’m going to borrow a page from David Maister‘s blog and take a moment at the start of each month to say thanks to other bloggers who did me the honour of linking here over the past few weeks. I’m brand new at this game, and I genuinely appreciate the warm welcome to the blawgosphere I’ve already been extended. So, many thanks to Simon Fodden, Paul Caron, Amir Kafshdaran, Omar Ha-Redeye, Simon again, Dennis Kennedy, Ron Friedmann, and Steve Matthews, not to mention commenters Amir, Susan and Tybalt. Grazie mille, folks!