A long look in the mirror

I don’t have much to say about “the Maclean’s cover” that hasn’t already been said, eloquently and accurately, by the CBA’s current and past presidents. The CBA was right to defend lawyers’ good name against an offensive piece of hack journalism. The less said about that article and the book that inspired it, the better.

But here’s the problem. Look beneath those shallow and cynical diatribes against our professional conduct, and you’ll find a few uncomfortable truths. Read the more legitimate but equally disturbing article about large firm life in the September 2007 Toronto Life. Hear the speakers at the CBA’s Canadian Legal Conference last month describe women lawyers who hide serious illnesses in order to protect their careers.

We damage our profession when we pretend that everything’s just fine in the practice of law. I’ve spoken informally with any number of lawyers and heard countless stories of frustration, worry, heartache and exhaustion. Big firm or small, urban or rural, many lawyers suffer from ineffective business models, uncompetitive practices, unfulfilling tasks, punishing workloads, and unacceptable behaviour by colleagues and bosses.

None of these issues has anything to do with the fundamental nature of being a lawyer — we’re no more susceptible to these sorts of problems than are accountants, architects or investment bankers. So much for the lie that lawyers are inherently unprincipled or miserable.

What these problems do have in common is a broken business culture. Compared to today’s successful organizations, the way lawyers structure their businesses, sell their services, treat their employees, market their practices and relate to their clients is obsolete and harmful. The poor workplace culture that afflicts many law offices can be traced to our outmoded approach to business — and our refusal to admit it.

National has been exploring these business and cultural problems for years. But the stories we’ve published are outnumbered by the ones we’ve had to abandon, because we couldn’t get enough lawyers to talk on the record.

Those lawyers who shared their stories with me informally were adamant that they would not be interviewed on these topics, not even under assumed names. They’re afraid to speak the truth, afraid for their jobs and reputations — and that’s as damning an indictment of the current system as I can think of.

We can summon the courage and honesty to address these problems ourselves — or we can continue to hide behind our professional walls and wait for more outside attacks to bring them down altogether. Which sounds like a better option to you?

This post first appeared as the editorial in the October 2007 issue of National magazine.

Mom and Dad, Esq.

Somebody asked me, after I returned to the office following three months’ parental leave, “Did you enjoy your time off?”

“I enjoyed the last three months immensely,” I said. “But trust me, ‘time off’ does not in any way describe it.”

If you’ve spent more than a few weeks raising a child hands-on, you’ll probably get that. If you haven’t, you might have a hard time understanding how parenting can be more work than the toughest law job — and can be more rewarding than the greatest law job, too. Similarly, I think most legal employers these days are either clued in to helping their lawyers be parents, or they’re not.

It’s been heartening to hear and read the stories of law firms that do get it: they accommodate within their work structures lawyers’ decisions to have kids. They understand not only the business advantages to that approach — retention, recruitment, and more (set out below) — but also that a law firm community that respects its employees’ personal lives is a triumph of professionalism.

And some firms don’t get it. Their business models can’t maximize production from young parents, and so they accept high turnover rates and the exodus of women lawyers as a tolerable cost of success. What strikes me, even more so than before I spent three months as a full-time dad, is how it’s the firms who are missing out here, not the lawyers. What sensible law firm wouldn’t want to employ a parent?

Parents are the ultimate multi-taskers, simultaneously juggling numerous duties — all urgent priorities and all mandatory — through hard work, organization and efficiency. That’s not valuable to firms trying to leverage the most work out of the fewest professionals?

Parents are tremendous dispute resolvers, balancing both the short-term demands and long-term interests of parties with deeply self-interested viewpoints, usually in high-stress situations. That’s not useful for clients who need conflicts settled quickly and calmly?

Parents are great listeners, reading between the lines of what they’re told and figuring out what someone really needs, earning their trust in the process. That’s not the very heart of effective client relations and marketing?

Parents function on much less sleep than they need. That’s not a survival skill in the modern law firm?

The business case for law firms to recruit and retain lawyers who are parents is clear. The business case for the billable-hour regime and the work-‘em-till-they-drop culture of many firms, which drive away these valuable professionals, remains a mystery to me.

This post first appeared as the editorial in the July/August 2007 issue of National magazine.

Disaggregation and legal publishing

Here’s a neat thought: disaggregation of legal texts. Law books probably lend themselves better to this approach than other disciplines precisely because of the law’s extreme specialization. I can see a defence lawyer downloading only those entries in Martin’s Annotated Criminal Code that deal with DUIs, entirely bypassing the sections dealing with murder, aggravated assault and other crimes that her client base hardly ever brings in.

The larger question this portends is the future of the professional textbook itself. Just as the pop-music album eventually will be replaced by individual track download sales — relieving both artist and listener of the tedium of all those “filler tracks” — I can see massive legal texts being replaced by specialized PDFed chapters that are, in effect, mini-books on very specific subjects.

Carswell’s current business model doesn’t support commissioning, editing, selling and printing a 60-page book on, say, defending a securities class action launched by investors outside North America. But a 60-page mini-book that costs almost nothing to produce yet can find a very small and specialized niche market with huge demand? The profit margins on that model look real good. It’ll be “Legal Publishing Meets the Long Tail,” and the results could be both dramatic and a boon for lawyer consumers.

This post originally appeared as a comment to a post at Slaw on June 19, 2007. 

Divided profession, collective governance

For your consideration: here’s a list of all the governing and/or regulatory bodies for health-care professionals in the province of Ontario:

College of Audiologists and Speech-Language Pathologists
College of Chiropodists
College of Chiropractors
College of Dental Hygienists
Royal College of Dental Surgeons
College of Dental Technologists
College of Dietitians
College of Massage Therapists
College of Medical Laboratory Technologists
College of Medical Radiation Technologists
College of Nurses
College of Occupational Therapists
College of Opticians
College of Optometrists
College of Pharmacists
College of Physicians and Surgeons
College of Physiotherapists
College of Psychologists
College of Respiratory Therapists
College of Denturists
College of Midwives

I’m sure other provinces and states have similar lists of regulatory bodies, many of them statutorily created or empowered. Now here’s a list of all the governing and/or regulatory bodies for legal services providers in Ontario:

Law Society of Upper Canada

If you were a member of the public, mightn’t you conclude from this comparison that while health-care services are diverse and specialized, legal services are one big amorphous blob? Dentists don’t govern psychologists and pharmacists don’t decide who’s fit to provide massage therapy, but apparently, a lawyer is a lawyer is a lawyer. Continue Reading

Is stewardship dead?

Maybe not quite, but in the context of most professional law firms with more than just a handful of partners, it’s on life support and the priest has been called in.

I honestly don’t know of any midsize or larger law firms, at least, that operate other than “to maximize the wealth of the current shareholders.” Talking about stewardship — propounding the idea that you’ve inherited something special and precious from those who came before you, that you don’t “own” it the way you own your car or your jacket, and that you’re compelled to pass on that legacy intact and improved to those who follow — that would be speaking a foreign language in most current partnership meetings. Certainly there are exceptional firms out there, but they likely operate so differently from the competition as to be exceptions that prove the rule.

I don’t think this is because of rampant employee turnover and lateral departures — they’re symptoms of stewardship’s absence, not a cause. I do think that, among law firms anyway, aggressive growth — “national” and “global” strategies meant to maximize business intake — have stretched the traditional model of a law firm beyond any coherent meaning. I mean, come on — an 800-member “partnership”? Can you seriously contend that the hundreds of lawyers nationwide or worldwide whom you’ve never met — who share only a letterhead and a remuneration plan with you — are your “partners” in any but the most formalistic sense of the word?

True “partnership” implies elements like trust, shared values, common commitments — it involves a conscious recognition that you and I hold the same approaches to professionalism and client service, and a decision to proceed together towards our shared goals. Receiving an e-mail in Montreal announcing that the Calgary office has admitted a new litigation partner whom you’ve never met and likely never will, that doesn’t cut it. Law firms that grow beyond a certain size and jurisdiction inherently can’t be much more than a loose affiliation of constantly revolving outside counsel. In this context, “stewardship” simply can’t apply.

The recent deals whereby major law firms have become the single source for a multinational’s outside legal work — Tyco and Evershed’s, Linde and DLA Piper — look more and more to me like the future of large law firms: really, really big corporate legal departments, half-inside, half-outside. That’s fine for them, but I look forward to the day when these firms no longer burn so brightly in the profession’s imagination that they set the tone and expectations for how other law partnerships are expected to define and conduct themselves.

I always tell law students to remember that large law firms are the exception, not the rule. Hopefully, stewardship still runs silent and deep among smaller firms, and will stage a major comeback as the nature of lawyers’ business associations continues to evolve in the years to come.

This post originally appeared as a comment to a post at David Maister’s blog on March 22, 2007.

Going to town

There’s been a lot of discussion lately about the numerous factors leading to the continuing contraction of the legal profession in smaller urban centers and in rural outposts. Here’s another one: competition for legal talent. Large-center practice is operating at unprecedented levels of profitability these days; even if small-center practices were still reasonably feasible, large-center practices are now so lucrative that it’s hard for any but the most diehard devotees of small-town life to pass up the opportunities in urban Canada.

The law societies of British Columbia and Ontario have produced reports on this subject, and both identify it as a serious matter for the profession. I’m not entirely sure that it is, for a couple of reasons.

First, that belief presumes that a shortage or absence of lawyers in small centers results in reduced access to justice in those locations. Lawyers have long believed that only they can really provide legal services competently, even as the alternative legal services market (primarily paralegals, but also including title insurers and do-it-yourself will CDs) continues to flourish every year. It would hardly behoove the LSUC, for instance, to maintain that lawyers are a sine qua non for access to justice when the LSUC itself has battled successfully to gain the right to regulate paralegals.

Before we decide that only lawyers’ services pass the threshold of providing access to justice, maybe we ought to let someone else try. If lawyers really want to ensure the best possible world for access to justice, they should help throw open the legal-services marketplace to as many competitors as the market will allow, and let clients sort the wheat from the chaff. Perhaps needless to say, I don’t think that’s going to happen. Continue Reading

Family values

Big news: most law firms no longer consider a lawyer’s decision to start and raise a family to be an implicit violation of the employment contract. Many women lawyers can now take nine months or more of maternity leave and return to find their jobs still waiting for them and their career prospects not greatly dimmed.

This is good news, of course, and I applaud the architects and pioneers of parental leave acceptance. But in many firms, parental leave allowances are simply part of an effort to staunch the hemorrhaging of young talent. Firms have learned that if they want to keep young lawyers around, they could start by accommodating these lawyers’ desire to have kids and to be with them during the first several months of their lives.

But that young talent probably will continue to drain away regardless, because it’s not just about getting time with a newborn. Consider that for many of these lawyers, the hard part comes when they return to work and find the firm demanding exactly the same hours and dedication it did pre-leave — if not more. I know a lot of ex-firm lawyers for whom that was the breaking point.

Why do so many lawyers still have to choose between a fulfilling career in a law firm and a fulfilling role as an involved parent? There are always tradeoffs, naturally: you can’t be a high-powered, high-paid lawyer and still spend hours on the playroom floor with your kids. But lawyering and parenting don’t have to be mutually exclusive. And more to the point, the firms seem to keep mistaking the symptoms for the problem.

Law firms are businesses trying to turn a profit. But they’re hamstrung by how they go about it — by their addiction to the billable-hour system. When you sell your services, compensate your workers and evaluate your future partners on the volume of hours billed, you will disproportionately reward those lawyers who have few if any commitments outside the office.

If time equals profitability, and if profitability equals profile and promotion, a firm inevitably will exclude lawyers who want or need to spend time away from work (a group that remains overwhelmingly female). There are thousands of excellent lawyers who fall into that category. They form a vast pool of top-quality resources that continue to slip away from firms addicted to the billable hour system. Is the system worth that?

This post first appeared as the editorial in the March 2007 issue of National.

Dear client:

Probably you were expecting a greeting card from me — ‘tis the season, after all. The standard wintertime scene on the front, generic wishes inside for a joyful holiday, peace on earth, that sort of thing … you probably get one from your dry cleaners and your local MP, too.

Well, I’m not doing that this year. Instead, I thought I’d take this opportunity to pass along a few important things I think you ought to know.

First of all, I’m really delighted that you’ve retained me as your lawyer. Like the airlines say, you had your choice of many competitors, and I’m glad you came to my office rather than anyone else’s. You’ve been satisfied, and sometimes downright thrilled, with the good work I did for you. I’d like you to know that means a lot to me.

Secondly, I wanted to give you advance notice that I’m investing in some new software, which I expect will improve my efficiency and upgrade my practice overall. The software’s not cheap, but its price will be covered by the savings I expect to accrue, so I won’t be passing on the cost to you, and you’ll benefit from a higher quality of service.

Thirdly, I won’t be in the office as often next year. On the advice of friends and family, I’ll be taking more vacation time, including three straight weeks in the summer — I’ll make sure your interests are well-looked after by reliable colleagues in my absence. Why the extended time off? I finally figured out that no matter how important I might think I am to my clients, I’m the farthest thing from indispensable — we lawyers need to remind ourselves of that every so often. I’ll send you a postcard.

Finally, I’d like to give you my annual reminder that while I’m a good lawyer, I’m not a miracle worker. I can’t answer your question five minutes after you e-mail it to me. I can’t make your ex-supplier, ex-spouse or ex-employer behave rationally or treat you fairly. I can’t change the rules by which the law operates. And I can’t turn back the clock so that the whole thing never happened.

But here’s what I can do. I can deliver the insights and advice you need. I can help you plan a better life, business or career from here on out. I can be your trusted partner and advisor as you make important decisions. I can look after your interests and give you my best counsel, even if it’s something you don’t want to hear. I can keep your confidences and sympathize with your frustrations.

In short, you can count on me to be on your side, no matter what. Because I’m your lawyer.

Thanks again for the opportunity and the privilege to have you as a client. I’ll give you a call early in the new year to see how things are going and whether there’s anything I can help you with.

Oh, and have a joyful holiday. Peace on earth.

This post first appeared as the editorial in the December 2006 issue of National.

Law practice in the 21st century

This article was first posted at Slaw on September 29th, 2006.

Earlier this month, I visited San Francisco for the first time. I’d long been fascinated by the thought of a city built on a geological time bomb, and walking its streets was quite an experience.

Everyone knows there’ll be a massive seismic rupture underneath the city someday. But San Franciscans are neither hot nor bothered by it; they go about their lives in their historic city. Their chances of being engulfed in an earthquake remain extraordinarily small, and there’s nothing they can do to prevent it anyway, so why worry?

I think you could draw a few parallels between San Francisco and the legal profession. Great forces are in motion, seismic change is in the offing, and while prosperity reigns today, ripping upheaval is inevitable. I don’t pretend for a moment that lawyers are threatened with annihilation – so long as there’s law, there’ll be lawyers – but after the strike comes, we’ll have trouble recognizing the landscape. Continue Reading

21st-century legal education

This article was first posted at Slaw on September 28th, 2006.

I wasn’t much of an articling student. I worked hard, but not smart: my learning curves were more like sheer cliff faces. I’m sure I wasted a lot of clients’ money and lawyers’ time during my year of service, and the firm was right not to ask me back.

In retrospect, I can see many things I should have done differently. But at the time, I was seriously peeved that no one had prepared me for this, that I hadn’t the first clue of what the practising Bar required. That’s been a pretty common experience for many new lawyers before and since.

Many lawyers blame the law schools, using overworn clichés like “ivory towers” and “here in the real world.” But law schools aren’t trade schools, and I don’t think they ought to be. A good legal education teaches students that the law has a history, a purpose and a soul, that law matters; it’s an incredibly rich and fulfilling experience that gives us the right to call ourselves “professionals.”

But law schools will have to adapt to changing circumstances in the years to come; they won’t really have much choice. Continue Reading