But that’s as much as I want to say about the schools, because what we’re really talking about in these conversations, when you get right down to it, is the competence of practicing lawyers. The legal profession is concerned with competence in two ways: at the start of a lawyer’s career (what I’d call Initial Professional Development, or IPD) and then throughout the course of the lawyer’s career (what we already call Continuing Professional Development, or CPD). Let’s begin with the first one and tackle the second one next week.

The bar has a self-evident interest in ensuring that new lawyers enter the profession with enough knowledge, skills and experience to provide reliable legal services at a purely functional level. It’s the responsibility of lawyers, as self-regulating professionals, to set and enforce these basic, minimum standards — to oversee this Initial Professional Development — in order to fulfill our mandate to protect the public in the provision of legal services. So far, so good.

Here’s the problem: Initial Professional Development for new lawyers is a mess. It’s been cobbled together from a mishmash of activities, some mandatory and some optional: a law school education, a summer stint in a law firm, a bar admission course, a bar exam, an articling or trainee contract, and so forth. These measures overlap in some areas and leave other areas completely unaddressed: a new lawyer might have sat through three primers on real property law, for example, but never have the opportunity to run a simulated mediation.

All these activities, moreover, are administered by a range of providers that rarely consult with each other to coordinate their efforts and that are, to a great extent, free to set whatever standards they like in planning and administering these activities. No jurisdiction that I’m aware of sets and enforces a comprehensive strategy and structure for new lawyer training. The bar has effectively outsourced Initial Professional Development to a series of for-profit providers without specifying the equivalent of an acceptable and enforceable Service Level Agreement to govern it.

We frequently complain that “law school doesn’t prepare students for practice.” But we’re missing the point. The point is that our sloppy, jury-rigged approach to new lawyer training is broken. It’s a glaring failure of self-regulation, and it’s what Initial Professional Development reform needs to address.

Consider three emerging alternatives to the status quo, and you can start to see the forces that will guide this reform process.

1. The training brokerage. In the UK, a contract lawyer agency called Acculaw has set off a minor earthquake with its entry into the solicitor training sphere (new solicitors are required to spend two years as “trainees” and pass a professional qualification course before recognition as full-fledged lawyers). Before now, firms would recruit and hire the trainees themselves, much as Canadian firms recruit articling students and American firms hire first-year lawyers. The difference is that UK firms are making commitments well over two years in advance of the day they’ll actually bring these trainees on board as solicitors, at which point the firm’s and the market’s circumstances may have changed dramatically.

Now, Acculaw will hire these trainees straight out of post-graduate law school and then “second” them to law firms as requested. The secondments (a maximum of three per trainee) will last between three and eight months. The premise is that the trainees will serve as a “just in time” resource for firms that want to hire potential new lawyers more sparingly and judiciously.

Acculaw says it will oversee the secondment and ensure that the trainees are, you know, trained. But how this will work in practice is anyone’s guess: we’ve never tried something like this before, so we don’t know how well, if it all, this will advance the goal of acceptably competent new lawyers. Most large and prestigious firms will continue to recruit straight from the schools and have their pick of the graduating litter, so Acculaw’s trainees probably will be viewed as the leftovers. Will this increase their attractiveness on the market? Probably not. But the UK is much farther ahead than other jurisdictions in sending work to LPOs and contract workers: trainee offers of all kinds have dropped nearly a quarter in the last two years. Many trainees will be happy to take whatever they can get.

Make no mistake: this is not a graduate-oriented initiative. Acculaw couldn’t be clearer that its customers are law firms and that its goal is to streamline the trainee recruitment process for efficiency and effectiveness. But this all came about because the previous system wasn’t serving the firms’ needs. That’s the lesson to draw from the early days of the Acculaw experiment: if law firms don’t like the lawyer training process, they will come up a risky and potentially problematic alternative. A centralized brokerage for Initial Professional Development, one where the company takes the trainees in hand and accepts ultimate responsibility for their competence, could work very well in theory, and I hope that’s where this goes. But it’s not hard to envision a less happy outcome.

2. The teaching law firm. Law professors Brad Borden and Robert J. Rhee attracted a lot of attention earlier this month with the suggestion that law schools own and operate their own law firms. In Prof. Rhee’s words, “graduating students [would] get trained in the practice of law for a fixed duration, similar to a judicial clerkship or analogously a residency for new doctors. The law firm would be run by senior attorneys who develop books of business, and it would be economically sustainable.” Response from the legal community was widespread — that last link contains an excellent analysis by John Hodnicki — and mixed interest with skepticism. My own reaction was that I’d be more interested to see law firms get into the legal education business. But there is definitely something here.

What the professors are suggesting is essentially the legal equivalent of a teaching hospital. (Surely you’ve watched House?) A teaching hospital, like all hospitals, is primarily concerned with treating the sick and injured; but a strong secondary purpose is to give med school graduates and interns an opportunity to experience and learn from actual medical practice on real patients, something that no amount of instruction or simulation can achieve. Senior physicians and staff supervise their work, of course, but the patient experience is undeniably different than it would be in a standard hospital. The expectations are also different, on both sides of the bed: patients of teaching hospitals are frequently low-income or uninsured. Teaching hospitals work by filling a number of gaps in the markets for both medical services and medical training.

In theory (and at Chicago-Kent Law School, in practice), a “teaching law firm” could work equally well: senior law school students and recent graduates, under the supervision of experienced lawyers, engage with clients, research issues, try to resolve problems and generally learn the ropes of being a lawyer while getting the hang of billing and collecting for legal services. Given the likely clientele, the legal work would likely focus on criminal cases, custody and support disputes, immigration and refugee matters, landlord and tenant conflicts, and so forth. That sounds like a law school legal clinic, but those operations are underfunded and are not, so far as I know, operated like businesses. To succeed, a teaching law firm would have to train lawyers not just to practise law but also to run a profitable business. The profits would probably be minuscule, but the point is that the graduates would learn that a law office is not a charity.

It’s worth wondering, however, whether law schools are the best institutions to operate these teaching law firms. Mitchell Rubinstein points out an important acknowledgment by the professors themselves: “this law school law firm would have to be staffed by attorneys, not by the professors. The major problem with law school professors today is that many, if not most of them, are simply incapable of practicing law and many never had. But this is what we have, for the most part, training the lawyers of the future.” If a law school opens a law firm and has to bring in outside lawyers to run it, we have to ask why the law school is involved at all. Teaching hospitals are often associated with universities, but universities and med schools have a better reputation within the medical profession than law schools enjoy in theirs. And there are very few med school professors who’ve never treated a live patient. This may be a good idea in search of the right home.

3. The expert application. A third possible route for ensuring the competence of new lawyers is a technological one: the use of expert applications. Earlier this month, I received a demonstration of a fascinating new application by a company called Neota Logic, founded by respected knowledge management pioneer Michael Mills. Neota Logic is essentially an applied knowledge management system: it automates lawyers’ knowledge and expertise to create step-by-step processes for solving low- and medium-grade regulatory, compliance and advisory problems. Michael sometimes refers to it as “Microsoft Excel for compliance.”

Neota Logic users log in and enter the relevant data on the regulatory or compliance issue facing them; the system prompts them to answer a sequence of questions based on the data it’s receiving. The system guides the user through the process of entering the data, choosing the paths dictated by the responses, and arrives at the same result that an expert lawyer would have reached. It’s not only a cost-saving system that reduces the need for lawyers — it’s also a quality-control system, through the creation and application of a legal database that’s informed by, and collectively better informed than, all the lawyers whose expertise underpins it.

Neota and other expert applications to come will have a massive impact on legal workflow generally, and I’ll look at that in more detail later this fall. But what really struck me was that in the firms where it’s bring used, Neota has emerged as an associate training tool. The lawyers who’ve used it refer to it as the “partner at your shoulder” system, or more colourfully, the “Guardian Angel.” It performs essentially the same function as having a partner sitting in a chair next to the associate, asking her all the right questions, checking on her responses, and guiding her towards the right conclusion. This type of mentoring is something we wish every law firm partner would devote the time and energy to provide; we also know that extremely few ever do. So an expert system that trains lawyers as they perform could be a fine alternative.

It’s worth noting that none of these three innovations — training brokerages, teaching law firms, and expert applications — has come from the practicing bar or professional regulators. That’s not really surprising, considering lawyers’ track record when it comes to developing innovations; but I do think we’re pretty decent at adopting innovations once they’re available. Olswang has already signed on to the Acculaw system, some law firms are already using Neota, and lawyers of all kinds found the “law school law firm” to be worth a close look. I’d like to see bar associations and lawyer regulators consider these and other emerging options for Initial Professional Development as possible external solutions to the new lawyer training fiasco we’ve foisted on ourselves thus far.

If we’ve learned anything from our current situation, it’s that Initial Professional Development has to be taken seriously as the first and fundamental competence responsibility that comes with self-regulatory status. This will probably sound very familiar to you, but: just because we’ve always ushered lawyers into the profession this way doesn’t mean it’s good enough, or that we should keep on doing it this way. Multiple players have something to contribute to new lawyer training, including law schools, law firms and private-sector providers; but at the end of the day, the organized bar has to pull it all together, decide on a new approach, and enforce it. And “the end of the day” had better arrive very soon.

What I saw and heard at ILTA, about document assembly and contract standardization and reverse auctions and KM advances and outsourcing services and a host of other developments, is that the storm we’ve been warning about for the past few years has finally broken (read the linked articles for more details). Tired of waiting for law firms to lead change, the market has itself developed tools and processes to provide the certainty, efficiency, transparency and cost-effectiveness that legal services have long needed. Clients love these innovations and are telling law firms to use them, even (and especially) where they conflict with firms’ traditional ways of working and making money. And firms are obeying, with the vague but dawning realization that they’re now being told how to do their jobs.

What’s happening is this: law firms are finally losing control of the legal marketplace.

Law firms used to dictate the terms upon which legal services were performed — work assignment, work flow, scheduling, timeliness, format, delivery, billing, pricing, and many others — because buyers had no other options. Those options have now emerged, powered by technology and driven forward by market demand.

• They promise legal documents not just faster and cheaper but also, incredibly, better, in terms of quality and reliability.
• They promise greater efficiency and transparency in the previously laborious RFP-driven process of choosing and pricing law firms.
• They promise real-time integration of world-class legal knowledge into the legal work production process.
• They promise alignment of a legal task’s value with its performer’s skills, qualification and location.
• And at ILTA, they demonstrated delivery on all these promises and more.

But the emergence of these options isn’t the real story. The real story is that firms are buying these new products and services, not selling them. They’re taking marching orders about their use, not issuing them. They’re accepting the new realities of the marketplace, not inventing them. Law firms are now drifting to the periphery of the marketplace, trading places with technology-driven outsiders whose own importance increases daily. Law firms, whether they realize it or not, are settling into a new role: sources of valued specialists called upon to perform certain tasks within a larger legal system that they did not create and that they do not control.

New providers and new technologies are not going to replace lawyers. But they are going to marginalize lawyers and render law firms mostly irrelevant.

Lawyers are smart, knowledgeable, creative and trustworthy professionals who, unfortunately, suffer from poor business acumen, terrible management skills, wildly disproportionate aversion to risk, outsized revenue expectations, and a business model about 25 years out of date. The market won’t abandon them — they have unique and sometimes extraordinarily valuable skills and characteristics — but it will find the best use for them: expert specialists with limited influence over the larger process.

Law firms are widely decentralized partnerships that charge on a cost-plus basis, retain no earnings from year to year, and pray every morning that their best assets will walk back through the same doors they exited the previous night. That’s not good enough. The new legal market demands systematization, collaboration, transparency, alignment, efficiency and cost-effectiveness within and among its providers. A few law firms have already adapted these traits, and some more will follow. Some law firms are so powerful they won’t have to change. The rest are in grave danger.

Here’s a revealing thought experiment to illustrate these points. Consider the flurry of investments and acquisitions that have taken place in the legal technology area recently. I’ve already written about Google Ventures’ $18 million investment in Rocket Lawyer and LegalZoom’s acquisition of $66 million in venture funding. During ILTA, Aderant acquired Client Services and CompuLaw for an undisclosed but certainly massive sum. And in the biggest news of the week, Hewlett-Packard purchased Autonomy, which among other things is a leading e-discovery provider, for no less than $10 billion.

With those figures in mind, ask yourself: what would you pay for a law firm? What price would you meet for any of the world’s ten largest law firms? Some very smart people discussed that question during a conversation at ILTA, and we reached this likely conclusion: nothing. Not a cent. Because really, what do law firms have to sell? They have no patents. They have no unique business methods. They have little unique knowledge. They have few long-term client commitments under contract. They have limited goodwill. Their only real assets are a handful of partners with great technical expertise or amazing rainmaking skills, and these assets can leave anytime with no penalty. What, precisely, would you be buying?

I said at the outset of these posts that lawyers and law firms need to decide carefully what they do and how they do it if they want to remain profitable and valuable. Let me instead suggest more questions for lawyers and law firms to ask themselves in order to even remain in the conversation.

What: Identify your inventory — what you sell to clients — and determine how much of it involves the application of lawyers’ high-value performance or analytical skills. Assume that the price for everything else you sell will plummet, and that you’ll be able to stay in these markets only if you adopt various high-efficiency systems. Absorb the reality that you will need many fewer people within your law firm to be competitive in these areas.

How: Study the means by which you accomplish the work you sell to clients and determine whether and to what extent you can adopt new technologies and processes to be not just more efficient, but also more effective in terms of quality, relevance and responsiveness. Don’t think in terms of adapting your current approaches; think in terms of starting from scratch. Use your creativity and ask: How should we go about doing what we do?

Who: Identify every person who receives a salary or a draw from your firm and ask: what is their primary contribution to the firm? Good answers will include proven business development skills, outstanding professional expertise, and amazing management abilities. These are your irreplaceables, and you’re probably underpaying them. Everyone else will require a clear demonstration of why they occupy a place in your office.

Where: In association with the previous entry, determine the best physical location for the services you provide. We are past the time in which a law firm’s four walls house all or almost all of its functionality. Some services might best be performed in a suburban location, others in a home office, others in a low-cost center elsewhere in the country or in the world, and others from a server farm.

Why: This might be the most important question of all, and I posed it in an article last month: what is the point of your law firm? I don’t mean generating profits for partners; I mean your marketplace purpose. Why do you exist? What specific need for what specific audience do you meet? If you disappeared tomorrow, who would find the loss irreplaceable? Believe me when I say: The market is asking you that question right now.

We’ve begun crossing over from the old legal marketplace to the new one. Lawyers still have outstanding value to offer in certain quarters, but we need to concentrate our market offerings around that value, and we need better platforms for our services than traditional law firms provide. We need to understand what technology is doing to legal services and either adopt that technology, adapt to the client expectations it’s creating, or leave. We need to understand our role in this new market and appreciate that it does not lie at the center of the legal universe. We’ve missed our chance to lead the new market, but we can still flourish inside it. It’s up to us.

Welcome to the crucible.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.

Tomorrow, I’ll look at what’s happening inside the legal profession. Today, I want to talk about what’s happening outside it, starting with last week’s most dramatic news: $18.5 million in venture capital announced by online legal service Rocket Lawyer.

Rocket Lawyer, if you’re not familiar with it, provides legal forms that online users can fill out, store and share on the Web. For $20 a month, reports Forbes, consumers can also have their documents reviewed by a real lawyer and even get legal advice at no additional cost. It boasts $10M in annual revenue and 70,000 visitors a day. The $18.5M figure, by itself, is less significant — rival LegalZoom recently announced a $66 million VC infusion — than the identity of the secondary investor in Rocket Lawyer, Google Ventures.

It’s important to note that this is not Google Inc. we’re talking about — Google Ventures invests in (it does not acquire) companies independent of Google, and it supports a range of startups that develop things like carbon-neutral fuels and yeast-based antibody discovery platforms. No one is suggesting that Google Inc. will take over Rocket Lawyer, make its forms free and sell ads on the content — although you know what, that’s more than merely plausible. But note what Google Ventures’ Wesley Chan says in Rocket Lawyer’s press release:

We see a large market opportunity for legal solutions that are easily accessible and affordable to users. Rocket Lawyer’s combination of an intuitive user-driven front-end with a strong technology-based platform uniquely positions the company to scale and deliver the type of “wow” user experience that online customers love.

Note the drawing cards for GV: ease, accessibility, affordability, user-driven, user experience. They have nothing to do with the intelligence of the lawyer or the quality of the legal offering and everything to do with the manner in which clients find and access legal services. As I’ve said before, convenience is the new battleground, a fight for which law firms still haven’t even shown up.

Those same features are what drew Google Ventures to its first foray into the legal sphere: Law Pivot, a legal Q&A website that allows companies (especially startups) to confidentially (or, as of yesterday, publicly) receive low-priced, crowd-sourced legal answers from a roster of private lawyers. Similar to Rocket Lawyer, LawPivot gives lawyers a platform to market their legal services by sharing advice and engaging in discussions (the company’s personalized search algorithm provide users with relevant lawyers to provide answers to their specific legal questions). Again, note the words of Wesley Chan in the announcement:

There are inefficiencies in the delivery of legal services, and there is a huge opportunity for a technology-driven disruption in the legal industry. The LawPivot team has created an intelligent online solution that connects companies to the legal answers they need.

Those are the two key terms we need to focus on: inefficiencies and disruption. Those of us who scan this marketplace have been warning for years that the legal profession’s backward business model is in the gunsights of aggressive entrepreneurs that want to exploit those inefficiencies and push lawyers out of the driver’s seat. Well, Les voila.

Because here’s the thing: neither Rocket Lawyer nor Law Pivot are doing anything that even an average law firm couldn’t have done already. The former has created a client-facing document assembly system that provides channels to licensed lawyers who can review the completed documents and answer more complex questions. The latter offers lawyers the opportunity to engage directly with potential clients and demonstrate their expertise through the dissemination of their real-world knowledge. Law firms have had the capacity to create these services for years, but they’ve been unwilling or unable to risk changing the nature of their business.

Both Rocket Lawyer and Law Pivot (and LegalZoom and Epoq and many others both present and future) have recognized that the production of legal documents and the provision of legal insight have become so systematized, routinized or borderline-commoditized that their market value has fallen below law firms’ profitability thresholds. So they have converted the legal advice process and legal document assembly system into marketing and business development opportunities for lawyers. And they have one simple goal in mind: to replace the law firm as the primary platform by which clients find and engage with lawyers. That is a realistic goal, and both their ideas and their execution have been good enough to interest Google Ventures and other investors.

I guarantee you will see more of these deals financing more of these operations in future, and when the UK finally launches Alternative Business Structures, watch the stream turn into a flood. But the fundamental trend to understand here is the legal marketplace finally recognizing and responding to the inefficiencies lawyers have created in the delivery of legal services. The result will be disruption for lawyers and upheaval for law firms. Tomorrow, I’ll talk about what that’s going to look like.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.

And as always, I’ll post the column here as well:

For the record, I don’t intend to buy one. At least, not for a few more years and not until the inevitable upgrades, improvements, fixes, and content distribution changes have run their course. But well before the iPad 3.0 arrives, the original version will have had a serious impact on the computer industry, on the production and distribution of content, and yes, on the legal profession.

I won’t recap everything that’s been said about the iPad in the mainstream and legal communities — Reid Trautz and The Wired GC have two solid takes — but it’s worth noting that the reaction has been mixed (and not just to the name, which I think will fade to non-issue status in relatively short order). The iPad has been criticized for its failure to shift paradigms, to be the next big thing that the iPhone was. It’s just a small Netbook, or a big iPod Touch, say the critics: not a game-changer, not everything it could have been. So let’s start with a quick word about what the iPad does appear to be.

The iPad is a mobile content consumption device. It isn’t optimized to play music, record videos, create documents, take photos, make phone calls, or do any of the other functions whose absence has been criticized. I suspect that’s for two reasons. One, Apple already has a fleet of devices that do these things very well and has no interest in rendering them redundant or obsolete. And two, the convenient consumption of content is actually an extraordinarily deep and rich field that no one has, up until now, really set out to harvest. The iPad is optimized to allow its owner to access as much content as possible as easily as possible: it’s light enough to carry around with ease, equipped with a screen big enough to read with ease, and set up to access the internet with ease. That’s an immensely powerful functionality — when people are able to get whatever they want easily and conveniently, it changes all their expectations and creates completely new standards of service and satisfaction.

That’s all well and good, you say. But does the arrival of the iPad mean anything for lawyers? I think that in three different ways, the answer is yes.

1. Mobility. In the beginning, there was the briefcase. If a lawyer had to venture outside the cozy confines of his law office, he stuffed the relevant papers and books into a briefcase and set off (if he was heading to a trial or discovery, a junior would trundle after him pushing a mini-trolley stacked with boxes). Then came the laptop, which allowed the lawyer to carry not just the relevant files for his case, but also all the files in his office. And now has come the iPad, which will allow the lawyer to access everything he has ever produced in any location (through MobileMe or DropBox) and on the entire internet. Through each evolutionary stage, the lawyer can transport more and more information on ever-smaller and lighter items, until he gets to the point where he is essentially a walking law firm.

So I think the one trend that the iPad will really accelerate is the movement away from the physical plant of a law firm. Manufacturing still requires workers to come together in a centralized factory, but the same can’t be said of knowledge industries like law. There are fewer and fewer reasons for lawyers to come to work every day in the same facility — physical law libraries are dwindling, files and documents reside on servers or in clouds, and smartphones have untethered lawyers from offices and landlines. As hourly measures of productivity begin their long decline, “face time” at the firm will become less important. Collaboration, the benefit most often touted for lawyers’ proximity to each other and a key to legal services in the future, is and will become more possible through multiple means, most of which involve distance. The iPad, along with its coming competitors and future iterations, has a good chance of being the breakthrough technological development that finally does away with “four walls and a door” as the default definition of a law office.

2. Publishing. As noted above, the iPad is designed for the consumption of content, not the creation of it. Lawyers create more content than the average professional and tend to consume somewhat less, but what they do consume is largely the work product of legal publishers. Case law reports, legislative updates, legal research databases, leading texts, legal periodicals, and so forth, all constitute the heart and soul of legal publishing houses. The iPad is a mobile reader with internet access, and the obvious way in which lawyers will use this device is for these sorts of materials. This will fundamentally change the way in which legal publishers go about distributing their content, just as the iPad will change (and is already considered the only viable option to stop the collapse of) consumer newspapers and magazines.

The thing about legal information is that you need it when you need it, not when you can get back to the office or find a wi-fi spot for your laptop. Hence the appeal of legal research tools for mobile devices: just before the iPad premiered, FastCase generated a lot of buzz in the blawgosphere by announcing a free legal research app for the iPhone. But the iPhone, as even its adherents will admit, is too small to be used for extensive text review (and the BlackBerry even more so). The iPad promises to make legal information instantly accessible and convenient to read, so it won’t be long before lawyers consider mobile electronic access the default format for legal information and reject printed materials that will seem bulky and cumbersome. How soon will this happen? If nothing else, give it three years for the current crop of law students, who will be among the profession’s earliest iPad adopters, to make their way into practice, then see what happens. That’s three years in which legal publishers need to shift their internal processes to accommodate new delivery, pricing and updating mechanisms for their content.

3. Design: Last fall, The Economist ran an article (subscription required) about the coming battle among Microsoft, Google and Apple for supremacy in cloud computing. Each of the contenders has an advantage: for Microsoft, it’s money (although neither Google nor Apple is exactly cash-poor), and for Google, it’s technology (although again, smart people abound in all three companies, as well as in dark-horse contenders like Amazon and Facebook). But if I had to bet on a winner — if not in the cloud, then in the industry generally — I’d say it’s Apple, for only one reason: design. Apple beats Microsoft, Google and every other competitor when it comes to the user interface — or, more colloquially, the customer experience. People enjoy using Apple products, and “enjoy” isn’t a word you normally associate with technology. At the end of the day, money, intelligence, functionality and so forth become ubiquitous and undifferentiated — your killer app can be topped almost before your new product is on the shelves. But a great user experience is a difference-maker: not only is it hard to replicate, it almost inevitably leads competitors to imitate rather than fight.

You can probably see the application to law firms. With few exceptions, lawyers are very smart and law firms are very good at delivering legal services. “Excellence” isn’t a competitive advantage in the law and hasn’t been for decades. So firms look for other ways to stand out from the crowd. Unfortunately, extremely few succeed. Most law firms operate in almost identical fashion: they pitch clients the same way, complete their tasks the same way, bill their work the same way, and treat their clients the same way. Any client who has had the opportunity to sample the offerings of multiple law firms can attest that, for practical purposes, they really are all the same. No wonder clients, especially these days, are so focused on price and especially on predictable fees: they’re hunting for something, anything, they can use to tell one law firm from another.

There’s only one silver bullet here — only one thing that a firm can do that its rivals can’t match and its clients will love: the customer experience. From marketing to client intake to processes to results to invoices to follow-up, how a firm relates to its clients throughout the life of a retainer is the most important element of all. The design of your firm — the experience your clients have before, during and after retaining your services — is critically important, because it’s unique to your firm, it’s 100% focused on the customer, and it can’t be copied. My Edge International colleague Gerry Riskin wrote about this more than three years ago in an article called “Intelligent Design for Law Fims“:

You’ve heard of practice management — but do we discuss “Practice Design”? Not yet. If law firms truly want to capture the attention of the marketplace, to stand out for all the right reasons, they need to start thinking more about how they present themselves to the market and how they deliver their services. By committing time and resources to law practice design, innovative firms would open up whole new frontiers of competitive advantage over their rivals.

Apple doesn’t get everything right, but it does ensure that everything it makes and everything it does puts the customer experience front and center. How many law firms can honestly say that? How many lawyers can say, and back it up with evidence, that the ways in which they work, communicate and bill their services are designed and delivered with the client’s complete personal satisfaction in mind? If your firm wants to have a fighting chance at making it through this coming decade in one piece, then it needs to take a lesson from Apple: design matters. If the customer is delighted, you win.

The iPad doesn’t do everything, but it doesn’t need to. It does what it does really well, and it makes its customer feel good doing it. There are a lot worse mottos your law firm could adopt.

Right now, everything I’ve written at Law21 is also stored on Sympatico’s email servers somewhere. I’ve also saved all those messages into a Word file, which is stored on my hard drive and therefore on Carbonite’s backup system too. Later this month, I’ll probably copy that Word file onto a thumbdrive as well. (Printing out all 180,000 words on the blog would require more than 400 pages, so I think I’ll stop short of taking backup to that extreme.)

The reason why I take all these steps was amply illustrated yesterday when URL-shortening service Tr.im shut down with no advance warning. All of the stats it was tracking have disappeared, and all the links it created could be gone by Jan. 1, 2010. If you’ve been following me on Twitter, this could be problematic, since I’ve been using tr.im links for a few months now. (I switched from tinyurl.com and eventually from bit.ly simply because tr.im bought me one extra character to play with,vital in Twitter’s 140-character universe.) It’s a bigger problem for me, though, because I’ve been using Twitter as a micro-publishing tool, so I’ll now need to go back, click on all those tr.im links I posted, and resave them using some other method. That’s assuming, of course,  Twitter keeps my old posts — Robert Scoble, for one, isn’t sure they even exist anymore.

Tr.im’s sudden demise is a wakeup call to every lawyer who blogs, twitters, or otherwise employs social media as marketing, communications, publishing or client relationship tools. (Not to mention those who use URL shorteners for legal citations, as this engaging conversation at Slaw demonstrates.) We all learned this lesson the hard way back in the late 1990s and we may be about to learn it again: the online ecosphere is incredibly fragile.

Massive platforms that appear ironclad-strong from the outside can be hollowed out or ripped up on a moment’s notice. Look at Bloglines, the first and only feed reader I’ve ever used — Michael Arrington notes today that it could be on its last legs. Or look at Friendfeed, which has its devotees among lawyers — it was bought by Facebook yesterday and could quite easily disappear within Facebook’s gigantic digestive system. Twitter itself was taken down with alarming ease last week by a hacker attack aimed at just one blogger (and Facebook didn’t fare much better). WordPress is and has been a fabulous platform for this blog — but if it disappeared tomorrow, what would happen to Law21?

Lawyers are constantly advised to use these new online social tools, as well they should. But it’s easy to forget that Facebook, LinkedIn and Twitter are not permanent features of the landscape — especially since none of them has yet come out with a sustainable business model. You do take a risk when you invest time and money in them. In no way is that risk big enough to justify giving up on these tools and platforms — but neither should you regard them as failsafe. As Scoble says, “whenever you put your data in other people’s, or other company’s, hands, you are taking a pretty significant risk.”

Scott Vine at Information Overlord chimes in to predict that the e-book reader (Kindle, Iliad, Sony, etc.) represents the light at the end of the tunnel for legal publishers: “[I]f I were a lawyer, who could have all the legal journals I wanted and all the legal texts I wanted – displayed as they would be in a ‘traditional’ print run – all on one device that I could keep in my desk or take with me to client meetings etc., then I would be a very happy bunny.”

Like Scott, I think e-book readers are the future of legal publishing, especially if their creators take to heart some of Seth Godin’s many recommendations for the Kindle. The second-most important application for e-readers in the legal context, I think, will be the hyperlink: the ability to leap from the book on your lap to a relevant page on the Net with 0ne click. You could click from a judicial interpretation or expert analysis of a statute or regulation directly to the most current version of the statute or regulation itself; imagine how that would reshape publications like annotated statues or criminal codes. Or think about footnotes on steroids: instead of just a reference to another work of significance, you get a link to the work itself.

But I think the killer app for legal e-books will be RSS. As every law librarian and legal researcher knows, the drawback to law books lies in post-publication developments. Looseleaf updaters have been around for ages, and have never become less laborious to insert one page at a time. Legal publishers tried issuing new CD-ROMs every month, but I don’t think that really caught on. Online research services remain the most reliable source of updated legal information — but not only do they remain expensive, they also require you to seek out the information you want. But what if the information you needed sought you out?

An RSS-enabled legal e-book would update itself. An authoritative Court of Appeal case at the time of publication might later be overruled by a Supreme Court; within days or even hours, the e-book would automatically change to reflect that. The proclamation of statutory amendments or the coming-into-force of regulations would download themselves while you sleep. Bulletins from tax authorities or rulings from securities commissions would appear with that little yellow “New” tag. A legal book — be it a casebook, a reporter series, an annotation — would become a constantly self-refreshing authority, truly the latest word in the law.

Legal publishers wouldn’t be able to sell annual or subsequent editions of popular texts; but they would be able to open up a whole new market of real-time knowledge refreshment. The speed and accuracy of updates could become  points of competition between publishers (a category that could include the established giants as well as upstart individuals or bloggers).  In addition to downloading the new Supreme Court ruling, a publisher could also offer access to an analysis of the decision by its in-house expert, perhaps as a value-added part of the user’s monthly subscription that enables the downloads. Online CLEs regarding a recently revised subject area could be advertised as part of the update.  Or how about access to relevant wikis to which other e-book users contribute?

In ways like these, the legal e-book could become a dynamic, full-scale legal knowledge portal — 24/7 Net-connected, automatically updated, linked to a community of writers and readers, plugged in to a collaborative legal knowledge world well beyond the written word. That would do more than revolutionize the legal publishing industry — it would help change how lawyers view and use legal knowledge.

First, if you haven’t checked out JD Supra lately, you might have missed this handy new feature: a Facebook application for streaming your legal documents. JD Supra Docs allows legal professionals who publish their work on JD Supra to make their documents and professional qualifications automatically available to their friends and contacts on Facebook. Every time you post a new document on JD Supra, it will automatically stream to your Facebook profile. Steve Matthews nicely sums up what JD Supra is doing here with the term “social legal documents.” That’s a concept worth leaning back and thinking about for a while — it represents an important part of the law’s future in a wired world.

And speaking of wired lawyers, Richard Granat of the eLawyering blog dropped me a line to let me know about the ABA Law Practice Management Section’s James I. Keane Memorial Award for Excellence in eLawyering. James Keane founded the ABA’s eLawyering Task Force, which looks at ways lawyers can use the Internet and other electronic resources to deliver legal services to the “latent market” of people of moderate means. One of my core beliefs is that latent legal services represents the future of the profession — lawyers will lose much of their traditional work to technology, commoditization and new competitors, but they’ll gain much more through the innovative provision of proactive or constructive services to currently unidentified and untapped client markets. So I’d like to help encourage the kind of service recognized by this award, about which you can learn more right here.

Finally, Susan Cartier Liebel of Build a Solo Practice LLC, a very deserving ABA Journal Blawg 100 finalist, decided to provide her own “Best of the Blawgosphere” list, on which Law21 is humbled to appear. Then she challenged all of us to do the same: create a list of recommendations of those blogs you believe others should learn about and publicize on your own blog.  Let’s take the idea behind the ABA 100 and expand it.  Let’s make December of every year the month we introduce our readers to new blogs of note. Let’s give everyone who blogs for education or love of writing and who does so with consistency and quality a pat on the back for a job well done.

Victoria Pynchon of the Settle it Now Negotiation Blog was first out of the blocks with this great list, so I thought I’d give it a shot as well. To paraphrase Susan, this is by no means an exhaustive list, just a sampling of blogs that are doing great work and that deserve and will repay your time and attention. All these blogs, to my mind, merited the ABA’s notice, but not all made the final list; I’ve provided a link where you can cast your “people’s choice” vote for those that did. In no particular order, here they are:

the [non] billable hour — Matt Homann has a gift of seeing the legal profession from exactly the right perspective to make us think differently about how and why we practise law.

3 Geeks and a Law Blog — For my money, the best new law blog out there. Greg Lambert, Toby Brown and Lisa Salazar are thinking years ahead about lawyers and technology.

Adam Smith, Esq. — Extraordinary insights about global law firm management by Bruce MacEwen, who might be the best pure writer in the blawgosphere. Vote here.

What About Clients? — You don’t throw around a word like “fearless,” but that’s exactly how to describe Dan Hull and Holden Oliver’s blog, which demands unapologetically that lawyers put clients first. Vote here.

Build a Solo Practice LLC – Already mentioned above, but Susan’s blog has joined Carolyn Elefant’s touchstone blog My Shingle as absolute must-reads for solo and small-firm lawyers. Vote here for both.

Empirical Legal Studies — The legal profession has an aversion to metrics. Prof. William Henderson is rectifying that by showing that we can, in fact, measure what we do. Vote here.

Strategic Legal Technology – Legal process outsourcing isn’t about lowering costs so much as it’s about rethinking how legal services are produced. Ron Friedmann is quite simply the LPO thought leader.

KM Space — What I just said about LPO applies equally to knowledge management, the key to the profession’s future. Read Doug Cornelius and you’ll get why KM matters.

Law Is Cool – To my mind, a glaring omission from the Blawg 100′s Student list. I’m politically distant from this student-run blog, but its voice and perspective, especially on social justice issues, is irreplaceable.

In Search of Perfect Client Service — Patrick J. Lamb’s Valorem Law Firm walks the talk on client-oriented legal services, and his blog is an invaluable resource for lawyers who want to follow.

Finally, I’ve been remiss in not yet drawing your attention to three Canadian blogs that made the Blawg 100 cut. You should go vote for them, and you should definitely read them. (Update: please also consider this to be their 2008 Clawbies nominations.)

FP Legal Post — Jim Middlemiss’s team at the Financial Post‘s blog tracks corporate law developments in Canada and worldwide, often irreverently. Maybe the only example anywhere of mainstream media getting the blawgosphere. Vote here.

Precedent: The New Rules of Law and Style — Welcome to the future of legal publishing. Precedent is also a young lawyers’ magazine, the rare one that authentically possesses that demographic’s voice and perspective. The online columns are terrific. Vote here.

Slaw — The talent on this roster, led by Simon Fodden, is unbelievable. The contributors’ list is a who’s who of Canadian (and increasingly, global) law bloggers. It’s not just the best law blog in Canada — it’s one of the best law blogs, period. Vote here.

What’s interesting is that most conversations about “reducing costs” are one-dimensional. They focus on the client getting the same kinds of services from the same kinds of law firms at a lower price; or, more concisely, the same-old same-old for less. They don’t envision rethinking the source of the services, or more importantly, the ways in which those services are produced. Ron Friedmann points out that when looking at ways to control costs, in-house counsel tend to focus on pricing elements — rate freezes, flat fees, discounts, alternative fees, and so forth — while ignoring the potential savings of reforming the process by which legal services are provided:

Where, for example, are efforts to require matter budgets, application of best practices, automation, risk analysis with decision trees, document assembly, and proper use of KM systems?… Real costs savings mean changing the process, focusing on how lawyers practice. The profession needs to overcome its “I am an artiste” attitude and develop better ways of working.

Both lawyers and clients have succumbed to the long-standing lawyer assumption that the price of legal services is directly connected to its cost. Lawyers produce work today pretty much the same way they produced it 60 years ago: through the individual-focused, time-insensitive application of principles and formulas to fact situations. Some time back, they figured out how much it costs them to do that, built in a percentage for profit, and arrived at a selling price for clients. And every year or so, to reflect both inflation and inflated earning expectations, they raised those prices. It’s an insulated, self-sustaining system in which price = cost + profit margin.

Here’s the really important thing that’s happening right now: the price of legal services is finally becoming uncoupled from the costs lawyers incur to produce it. Partly through efforts to identify the underlying value of a service to the client (something unrelated to lawyers’ cost), and partly through the relentless advances of technology and globalization, legal services price has been liberated from lawyers’ costs and is starting to establish its own gravity and orbit. Consider these examples just from the past week or so:

- In-house counsel getting legal work done differently: “[W]hat caught my eye, however, was the part about less work going to outside firms. … If inside resources are relatively flat (a high likelihood today), then in-house counsel are doing something. Among many possibilities, here are four that come to mind: (a) pulling back on more generic work (redefine as low-risk and perhaps non-legal); (b) trying to re-use or re-cycle some work, and have it done by non-legal personnel (including clients); (c) using technology to automate or streamline work; or (d) have it done by “non-law firm” firms, whether here or offshore (flat rate or fixed price).” (Wired GC)

- In the downturn, more legal work outsourced to India: “The nature of the work already has changed. When Ankita Mullick joined Pangea3 three years ago from a Mumbai law firm, she spent time researching U.S. laws on drug labeling. This year, she has done work for banks on auction-rate securities, which have been a factor in the crisis on Wall Street. ‘The sophistication is increasing,’ says Ms. Mullick.” (WSJ)

- Outsourced patent work to hit $200M in 2012: “The Indian patent services industry has grown significantly in the past three to four years to include about 50 vendors with 1,500 professionals, according to a release about the new report. … The area lends itself to such overseas outsourcing because it typically entails ‘manpower intensive and process-driven services.’” (law.com)

- Practice support lawyers to become online service: “This week, I saw an online demo from Practical Law which has taken the PSL concept, married it to technology and is offering it as an online service. … Under an annual subscription fee, you can run searches, browse subjects, compare international laws and even generate quality first-draft documents. And when you hit the wall and need assistance, they have a team of PSL-like lawyers available to help you. They’ve termed this approach ‘know-how” services….’” (3 Geeks & A Law Blog)

- Social media offering opportunities for new firm models: “Although social media will not cure cancer or the common cold, it will provide the opportunities for the new law firms to emerge. It will be the arena where the new leaders will identify, develop and build their tribes. We are already experiencing how social media and social networking are allowing lawyers and clients to easily meet and connect. And the rules are changing every day. The era of the institutional client, who was handed down, without thought or concern, from senior partner to junior partner, year after year, is dead. Clients are no longer constrained by the ‘top’ firm in their marketplace. Clients can easily go out and explore their options.” (Legal Watercooler)

- Corporate KM systems pulling way ahead of law firms’: “Law firms will struggle with this concept, as ‘savings’ means less time to complete legal work, which means lower billables and revenue. A key piece of [Conoco]‘s system is compensation rewards for those who save the company money. Law firms will actually benefit from more efficient work processes, but since the efficiencies benefit clients and are not rewarded via compensation, law firms will struggle to drive this type of knowledge sharing and change.” (3 Geeks & A Law Blog)

Law firms have, from time immemorial, justified internal expenses with the line, “We’ll pass the cost on to the client.” We’re now entering an era in which whatever it costs a lawyer or law firm to render a service has at best a tangential relationship with the price that service commands. In order to turn a profit, firms will be forced to streamline their costs of production, whatever they might be. “Price” is what the ever-more sophisticated market will bear; “cost” will be whatever the lawyer incurs to deliver its services; and rarely shall the twain meet.

It’ll be the need to turn a profit in the face of all these liberating forces that will finally force firms to take Ron’s advice and rethink how they work. All the price discounts in the world won’t keep it at bay.

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.