More than a decade ago, in a post that captured the imagination of hardly anyone, I wrote about the need for “frugal innovation” in the legal services sector. Chief among the problems with the legal market, I said, is lawyers’ insistence on offering ever-more-elaborate services to ever-fewer people at ever-higher prices, ignoring the growing population with straightforward legal needs but little time or money to address them. Frugal legal innovators, I wrote,
will figure out the resource restrictions under which most people labour and will modify their products, services and delivery systems accordingly. They will relentlessly simplify and de-accessorize legal offerings, constantly asking themselves: Can we make this easier? Are there steps we could remove, features we could do without, elements that add cost without adding equivalent value?
But what I want to do in this post is apply the same reasoning to the lawyer formation process. What would frugal legal education and bar admission look like? What if we had only a very limited amount of time and money with which to train and licence new lawyers — how would we do it?
Let’s start by identifying the problem to be solved. Whatever its other merits and demerits, there are two things we can confidently say about lawyer formation in North America, in its current form:
1. It is too long. Hardly anyone believes that three full years of law school are necessary to provide foundational knowledge for the lawyer licensing journey. Most Canadian jurisdictions require an additional one-year articling term before admission, but that period of time is arbitrary: pandemic-shortened articling terms were deemed acceptable last year, and an alternative pathway in one province lasts just eight months.
To be clear, I believe new lawyers need much better and more detailed preparation for their careers than we’re giving them; but we’re using the current allotted amount of time poorly. We don’t know how long it really takes to fully develop a lawyer, because we’ve never purposefully designed a unified, end-to-end lawyer formation system.
2. It is too expensive. The average US lawyer starts their career $145,000 in debt. For the average Canadian lawyer, the figure is at least $71,000. Licensing fees add to this burden. But the cost of lawyer formation is driven less by features intrinsic to professional development, and more by the business models of the institutions that oversee and administer education and licensure. Lawyer formation doesn’t require labs and chemicals and machine shops; but you wouldn’t know that from its price tag.
Most people need significant socio-economic advantages even to contemplate the possibility of a legal career and devote several years to its pursuit. If you are not independently wealthy, heavy debt will drive you into higher-paying jobs with intense billing pressures or force you to take on work outside your expertise, ultimately to your and your clients’ detriment. The barriers scattered throughout lawyer licensure have produced a legal profession that is disproportionately white. And I need hardly add that the foregoing system will not produce affordable legal services.
How can we fix this? One way forward would be to “frugalize” the lawyer development system. What if we placed strict time and budget limits on the process of developing lawyers? What if we maintained (or ideally, raised) our thresholds for qualification as a lawyer, but radically downsized the time and cost required?
Assume that someone wishes to become a lawyer, but has, say, only 18 months and $18,000 to do it. Under our current system, that’s simply not possible. So let’s come up with a system in which it might be. Here are a few ideas to get us started.
● Move law school online, period. Subtract from a legal education the institutional overhead, room, board, and travel costs of attending a university in person. Subtract the time inflation caused by adherence to the law school’s semestered teaching timetable and its insistence on one-to-many, physically proximate knowledge transfer. The result would be an at-your-own-pace online law degree (of which, thanks to the pandemic, we’ve already seen proof of concept), faster and radically less expensive than the current version.
● In the alternative, individual legal academics and practicing lawyers could sell standalone courses approved by regulatory authorities, accessible online 24/7 with built-in knowledge assessments, on a core of mandatory subjects plus many others. Students could assemble their own qualifying law degree from multiple providers, learning as their schedule allows from their chosen experts in their preferred areas. Let’s stop thinking of law school as “a place you go to” and start thinking of it as “a developmental experience.”
● Our current system makes students spend three years in a classroom before even glimpsing the life of a lawyer. Lawyer education and experience could instead be administered concurrently, not consecutively, saving time while enhancing learning. The online courses described above could be interspersed with asynchronous skills and training modules and simulated virtual practices relevant to each course subject — here is an outstanding example. Or combine this idea with the next one:
● During or after completion of this online trifecta, we would find ways for aspiring lawyers to swiftly and affordably gain in-person lawyer experience. Regulators could require practicing lawyers to offer unpaid four-month internships to duly-registered law students as a requirement of continued licensure. Or they could coordinate similar opportunities with legal aid or public interest organizations in the student’s home town or nearest city. The goal is to help students learn the law and experience the law simultaneously.
● A purely online experience would, however, fail to provide the socialization element of lawyer development, whereby aspiring practitioners build friendships and networks by learning and working together. These elements have real value, so the frugal lawyer development process would require and help enable regular in-person (once the pandemic allows) meet-ups in larger communities, or Zoom sessions among more geographically dispersed students, or better solutions waiting to be invented. Distance legal education has a long history.
This is just the barest outline of what a frugal lawyer development system might look like — obviously it has gaps and flaws. But while some of them can be filled and fixed, others don’t need to be. Frugality, as I argued back in 2010, is not about doing the same things you did before, only more cheaply. It’s about re-envisioning what you’re trying to achieve and and re-engineering how you’re going to achieve it.
There’s a growing consensus that lawyer licensing requires radical reconsideration. So which elements of lawyer licensure add cost without adding equivalent value? Cavernous lecture halls in limestone buildings? Qualifying credentials burnished by a coat of arms and a football team? Hazing rituals disguised as entry examinations? You could probably assemble a pretty lengthy list just based on your own certification experience. Undertaking this effort collectively, as a profession, could lead to extraordinary advances in our theory and practice of bar admission.
The pandemic has already demonstrated that we can educate, train, and license lawyers differently than we did before. This is a golden opportunity to convert that temporary experience into a permanently better one.