I bring news from the places where lawyers gather. In addition to presenting at several law firm retreats in 2019, I’ve also spoken to meetings of law firm administrators, law firm knowledge officers, legal industry analysts, and law students and professors. As you might imagine, these are disparate groups that tend not to agree on a whole lot.
Yet consistently, in audience questions and hallway conversations, one common concern kept arising at all these events — that the lawyer development system is in serious trouble and could be headed towards collapse. This post is intended to describe the problem and propose potential ways for us to avoid what might otherwise be a professional disaster.
Let’s start by defining our terms. By “lawyer development system,” I mean the structured yet largely informal process by which a law student on her first day of classes eventually becomes a confident, competent lawyer providing legal services of value to clients. Obviously, this process stretches well beyond one’s call to the bar: Way back in 2010, I suggested that it takes seven years for a first-day law student to reach that point, although in a brief survey I conducted in 2017, some lawyers said it took an additional five to ten years after graduation before they felt like a “reasonably confident and competent lawyer.”
So by these lights, the lawyer development process requires anywhere from seven to thirteen years of a person’s life, starting from their first day of law school. I need hardly point out that in most countries, we credential lawyers three or four years into that process and expect them to bill well over a thousand hours annually by the end of their fifth. Much of the lawyer development process, therefore, involves experiential learning on real client matters, long before the point of confident competence has been reached.
Most importantly, responsibility for the lawyer development process is diffused throughout the legal ecosystem, with no single entity holding full authority over and answerability for the process and the results. This is what I mean by “structured yet informal” — if it takes a village to raise a child, then it takes an entire legal market (including law schools, bar examiners, law firms, and clients) to raise a lawyer, without anyone technically in charge of the whole process.
I personally think that’s a pretty ragtag way for one of the world’s great professions to sustain itself. But to all the criticisms we can level against this system, one defence is hard to refute: It works. Lawyers are here, and we provide people with legal services, and the world hasn’t ended. It might not be a thing of beauty, but the system works.
Until it doesn’t. What people in law firms and law schools have been telling me over the course of this year is that they’re deeply worried about the lawyer development system. Specifically, they’re saying: “We don’t know where the next generation of lawyers is going to come from.”
Let’s start with one of the legal profession’s oldest truisms: Law schools don’t teach people how to be lawyers. Not only is this inarguably true, I don’t see how it could be otherwise. If it takes an average of 7 to 13 years to really “become” a lawyer, law school can do no more in its three years than get the ball rolling. Law schools are not set up to teach people how to deliver legal services to clients, and they can’t be reconfigured to play that role without gutting them and converting them into completely new entities. If we want to have lawyer development academies that mix classroom instruction with supervised work opportunities for ten years before granting a license to practise law, that’s fine; but that’s not the world we currently live in.
And anyway, law schools haven’t had to “teach people how to be lawyers,” because the profession has effectively outsourced this job to the private sector. Most lawyers’ early development time — say, between three and eight years after their first day of law school — is spent working for more experienced lawyers (usually in law firms) rather than directly for clients. The well-worn path looks like this:
- Step 1: Get hired as a new associate at a law firm.
- Step 2: Work really hard.
- Step 3(a): After a period of six to twelve years, accept an invitation to join the equity partnership, after which you can continue to work really hard while getting a cut of other lawyers’ revenue.
- Step 3(b): Alternatively, anytime between the first and twelfth year on the job, leave the firm to join (i) another law firm, (ii) a corporate or public-sector law department, (iii) sole practice, or (iv) some other type of employment inside or outside the legal market.
I expect that would describe the path into the legal profession for at least 90% of the lawyers reading this post, as well as for their colleagues and supervisors. It’s so ingrained into the profession that we scarcely notice it anymore. We take it for granted that once we leave law school, a wide range of private businesses will welcome us into the working profession and pay us an annual salary to bill thousands of hours to clients while learning the intricacies and nuances of law practice.
Not every law firm does a good job of developing lawyers, of course. At many law firms, the quality of these early years of lawyer development is pretty abysmal: On-the-job experience substituting for actual training, trial-and-error learning taking the place of mentored instruction, and crushing billing pressures outweighing almost all other considerations. But this system more or less does the job of getting new law graduates from knowing nothing about law practice to knowing something about it, inside a (relatively) quality-controlled environment.
To be clear, law firms don’t play this critical role in the lawyer development system just to help the legal profession. It’s not an act of charity. They do it because they can bill their associates’ time spent working on basic, low- to medium-level tasks, pay them less than the revenue they generate, and pocket the resulting profits. And even though attrition will cost them most of these lawyers over the years, one or two will make it through this gauntlet ready to buy equity in the firm and keep the place solvent for another year. The rest of those new hires will eventually fan out across the legal market and keep the lawyer landscape populated.
This entire system, however, with all its benefits and faults, rests on a single and increasingly fragile foundation:
- Step 1: Get hired as a new associate at a law firm.
Law schools, bar admission personnel, and (without realizing it) clients all assume that law firms will keep doing what they’ve been doing for years: Hire new lawyers and show them the ropes. The entire lawyer development system hinges on law firms acting as that bridge out of law school. If law firms were to stop doing that, or even to severely curtail their new-lawyer hiring, it’s not an exaggeration to say that this system would simply break down.
I submit that we’ve already entered this process, right now. It looks like this:
1. The “low- to medium-level tasks” that used to occupy associates’ time have been migrating from law firms to more cost-effective performers such as software, ALSPs (including a growing number of law firm spinoffs and subsidiaries), and clients themselves. These tasks are routine and highly procedural, yet law firms still want to perform and bill them the same way they perform and bill highly specialized partner tasks. That value mismatch means firms have difficulty competing for this work. The US economy has been surging for almost a decade, yet “the overall growth trend for demand for law firm services [in that time] has been essentially flat to negative in every year.” That lost demand for law firm hours is very probably “associate work” that is no longer being given to associates.
2. As the volume of (formerly) “associate work” coming to law firms declines, firms respond by employing fewer new lawyers. It’s not as if firms actually need more than a handful of new associates in any given year to become future partners — the rest are hired only to bill hours, and if there are no hours to bill, why hire them? The essential Prof. Bill Henderson crunched the data last year and found that the number of entry-level jobs in private practice in the US declined from 20,611 in 2007 to 16,390 in 2017, a 20% drop. Large law firms, which shoulder about a quarter of first-year lawyer hiring, brought in 139 fewer first-year lawyers in 2017 than in 2007, even though these firms’ non-first-year lawyer population grew by nearly 40% during that time (from 65,212 to 90,867).
3. Now consider that the migration of low- to medium-level tasks from associates to more efficient providers has only begun. The development of technology for automating basic legal work is accelerating, along with growing acceptance (by both buyers and sellers) that legal work should be carried out by the most appropriate performer or platform. The Law Society of England & Wales studied this phenomenon and concluded that “the number of jobs in the legal services sector will be increasingly affected by automation of legal services functions” — in fact, it estimated that over the next 20 years, the equivalent of 67,000 full-time legal jobs will be consumed by technology. Note that the US has about 10 times as many lawyers as does England & Wales.
In “Legal Professionals of the Future: Their Ethos, Role and Skills,” Prof. John Flood writes that “the effect of automation here could be dramatic, in that if junior associates were to be gradually culled from firms, the entire reproduction of the legal profession could be jeopardized, since law firms are structured around associates being promoted to partnership.” Joe Patrice at Above The Law calls this the path towards “the death of the junior attorney,” writing: “Sooner rather than later, firms are going to slow their junior hiring and focus on a narrower range of candidates. … If the training regime for young lawyers isn’t addressed, the population of competent attorneys … will simply dry up.”
Are law firms aware of this issue? Of course. But they are neither structured nor incentivized to do anything about it. They are far more interested in acquiring established partners with mobile clients to boost immediate revenue (even though those efforts frequently disappoint), in shrinking the size of the equity circle (thereby growing profits for those inside), and delaying partnership admission for their remaining associates as long as possible. They are fixated on maximizing short-term partner profitability, and first-year associates could not be further removed from that goal. Rightly or wrongly, law firms do not consider the future of lawyer development to be their problem. They are increasingly less willing and less able to take on this job.
So whose job is it? I come back to my initial observation that the lawyer development system has been outsourced to and diffused among many different stakeholders. Each of those stakeholders will be happy to tell you that it’s someone else’s job to train and develop lawyers; none of them wants to step up and take on this immensely important (and expensive) responsibility. But the outsourced-and-diffused solution has just about run its course, and something has to replace it — something unified, principled, systematic, and clear about its purpose and goals.
For my money, there’s only one correct answer to the question of whose problem this is, and who is responsible for finding a solution. In a self-regulating profession, responsibility lands squarely on the professional regulator. Whether that’s a state bar, a state court, a law society, or a special regulatory board, this entity is statutorily charged with ensuring that the lawyers who deliver legal services to people and businesses are competent, trustworthy, and reliable. That is job #1. If the entity cannot do that, then it might as well close its doors and forfeit professional self-regulation to the government. (Governments might be only too happy to take on the job if they feel lawyers aren’t up to it.)
Too many regulators are currently obsessed with pursuing “unauthorized” legal services providers, or with defending their own territory, or even with laudable goals like increasing access to justice. I submit that none of these activities is as central to the self-regulatory mission as saving and enhancing the lawyer development system, and I believe that regulators should make this their primary focus immediately. Governments can punish malevolent or rogue legal providers through criminal prosecution, and they can increase access to legal services by legislating open markets and restoring public funding for legal aid. But only lawyers can fix the lawyer development system.
How could we go about this? Here’s one suggested route forward for a professional legal regulator to consider.
- Drop all the extraneous activities and functions described above and concentrate your limited resources and political will on this subject.
- Identify the core professional competencies lawyers must possess at various stages of their development. Canada and Great Britain have already done this for you, although neither jurisdiction has yet implemented these competencies as part of their lawyer admission regime.
- Accredit any educational or training institution that will develop these competencies in lawyers over a minimum period of five to seven years at the start of lawyers’ careers. Inform law schools that they can keep their accreditation if they agree to deliver these competencies and prove they can do so.
- Invite law firms interested in participating in the development of competent lawyers to submit detailed plans for the hiring and close supervision of lawyers, in conjunction with an accredited competence delivery institution.
- Credential lawyers in stages, much as novice drivers are allowed to drive only at certain times and with adult passengers, or as medical interns are licensed only to carry out certain basic procedures. Abandon the absurd fiction that a newly called lawyer is entitled to do anything a veteran lawyer can do.
- Be fully transparent about this process to government and especially to the public. Let people access detailed assurances about the nature, quality, and reliability of what they’re getting when they hire a lawyer.
The foregoing is only an outline, and professional development experts can surely improve on it. But I don’t see that the task in front of us can be accomplished by anything much less radical than this. Law schools would fall and rise, creating a brand new educational landscape for lawyers. Professional self-regulation would be transformed into what it should always have been: keeping our own house in order so that society is demonstrably and thoroughly well-served by lawyers. Lawyers themselves would become confident and competent much earlier in their careers, accelerating their timelines for delivering real client value and improving their mental and emotional well-being in the process. By resolving one impending crisis, we can tackle and solve many other lingering problems.
It’s time to stop blaming law schools for not doing regulators’ job. It’s time to recognize that law firms won’t do this job anymore and shouldn’t anyway. It’s certainly past time to stop making clients do this job through lawyers’ trial-and-error learning process. It’s time the legal profession took the privilege of self-regulation seriously by unifying, clarifying, redesigning, and transforming the lawyer development system.