Heading in a new direction

It was February, and I was in Chicago. I was there to attend ABA TECHSHOW, for the first time in what felt like ages. And I was mostly hanging out in the trade show between sessions, meeting some Twitter friends in person for the first time and running into old friends who I’d first met here back in the ’90s. The conversations, as they tend to do, would inevitably turn to what we were up to these days. And in my responses, I found myself coming back to a recurring theme.

Work was fine, I said. I had several speaking gigs lined up for the spring and summer. But I was also feeling a little worn down and, if I was being honest, kind of burned out. There are only so many times you can stand in line to board an airplane, only so many times you can roll your luggage down a hotel hallway, and only so many times you can climb onto a stage and tell a group of lawyers things they didn’t really want to hear. I’ve always maintained, half-jokingly at most, that I only ever became a paid speaker so that I could afford to keep blogging — yet here I was, writing at Law21 less than ever before.

There were also the big-picture aspects. Were my presentations about innovation and the future of law firms really making any difference? Even if they were, did I want my epitaph to read, “He helped lawyers make more money?” I was becoming more concerned with access to justice, regulatory reform, and lawyer formation, blogging about these subjects more than about the practice of law, about which I felt I’d said all I could say. My kids were accelerating into adolescence. I’d passed the half-century mark myself. It really feels, I’d sum up, like I need to make a change. It feels like time to do something different — I’m just not sure what.

Four weeks later, we were all in lockdown, all my speaking engagements had been cancelled (except for one that was converted to online), and it was clear that all of us were going to get something different, with a vengeance. We were all going to take a different path now.

For my part, as the pandemic struck, I felt like everything I’d been writing and speaking about for the last decade had reached its culmination. There wasn’t much point in talking about how to prepare for the future of law anymore — the future was here, and either you were ready for it or you weren’t. Most of us weren’t. I was deeply discouraged by that — but I was also energized by the system-wide change that was about to get underway.

I began writing a series of posts about what the pandemic would do to the justice system and the legal market, and how we needed to start building the foundations of a new system and a new market now to replace the ones that the pandemic and its consequences would dismantle and sweep away. Only by the end of the series did I start to recognize that I’d been writing kind of an elegy for my own work in this area. If I ever get around to it, I’ll adapt that ten-part series into a short e-book and offer it free to anyone who’s interested.

All well and good. But there remained the minor issue of what I was going to do with myself for what looked to be 12 to 18 months of very few earning opportunities. Luckily for me, however, I did at least one smart thing during those first few weeks.

One of the engagements that had been cancelled was to help organize, speak at, and facilitate a meeting of the “Benchers” (elected lawyer directors) of the Law Society of Alberta, the regulator of lawyers and legal services in that province. This meeting was going to be devoted to a deep reconsideration of Alberta’s lawyer licensing and competence systems. I had already done a fair amount of research and laid some groundwork when the pandemic hit and the event was cancelled — but it was enough to confirm my early impression that these were enormously important subjects, critical to the future of the profession and its ability to serve clients and uphold the rule of law.

So I contacted the law society and said, essentially: I’m genuinely interested in this topic, and — given that I now seem to have a lot of time on my hands — I’d be happy to continue working on this until the meeting can be rescheduled, or to write a white paper for you, or something along those lines. That call led to further conversations, which led to a proposal, which led to an 80-page report and recommendations for lawyer licensing and competence in Alberta, which was accepted by the law society earlier this month and officially published earlier this week. You can read all about that report in this companion post.

I’m pleased with the report, and I’m immensely grateful to the law society for giving me the opportunity to write it. I’m especially grateful because writing the report, interviewing all the experts, and reading all the excellent research in this area, made me confident that I’d found my “next thing.”

The legal profession’s approach to how lawyers are educated, trained, mentored, licensed, and continuously monitored for ethical proficiency is slapdash, archaic, and grossly inadequate. With rare exceptions, we educate lawyers in isolation from how law is practised, we lazily and amateurishly assess their fitness to practise, we credential them and send them into the market much too early, and we fail to give them the ongoing support, tools, and professional infrastructure they need to lead a healthy and fulfilling legal career. The results of this massive failure are obvious everywhere you look in the legal sector — if you’re willing to see them.

  • It’s the infuriating #barpocalypse tragedy in the US, the worst thing ever done to any incoming class of lawyers in the profession’s history.
  • It’s the refusal or incapacity of law schools to adapt their missions to the piercingly clear needs of the legal profession and its clients — and the corresponding refusal or incapacity of regulators to demand better from their major supplier of legal talent.
  • It’s the abandonment of new lawyers to the cruel vagaries of the market, the terrible doubts of imposter syndrome, and the frequent consequent self-destruction of addictions and mental crises.
  • It’s lawyers’ lackadaisical approach to their continuing competence, so deeply ingrained that the cynical and useless “minimum CLE hours” system is not just the default standard, but is virtually sacrosanct.

We take ourselves so seriously as a profession. But we treat our professional formation and continuing proficiency with a degree of negligence that borders on contempt. This cannot continue.

This is where I’d now like to principally devote whatever talent and energy I can bring. I’d like to work with law schools, law professors, bar examiners, bar admission entities, regulators, professional development architects, law firms, and innovators of all kinds to help rethink, re-engineer, and reconstruct the lawyer formation process. My report to the Law Society of Alberta encapsulates my views in this area and serves as an example of the projects I can work on and the outcomes I can help deliver.

Coming in a close second on the list of “what I’d like to do now” is to work with regulators, governments, foundations, and community groups on the reconceptualization and reform of legal services regulation. I’ve been fortunate to provide some advisory services to other regulators over the course of this past year, and in fact, I’m strongly considering the development of a new strategic intelligence service for a limited number of institutional subscribers in 2021. If this sounds like something your organization might be interested in participating in, please let me know.

None of this is to say that I won’t also advise or write about law firms from time to time, or about other aspects of the legal sector. It’s a very big, complex legal world out there, and my interest in that world  is, like me, very catholic. I’ll happily hop onto an occasional Zoom webinar (or, less happily but inevitably, an airplane) to give a presentation about the present (not the future) of law.

But to any law firm that might have some interest along these lines, let me say: First go read this post, from my pandemic series. It contains a link to download my book about law firms (for free), links to more than two dozen posts about law firms that I’ve written since the book was published (also free), and as much wisdom as I can provide about law firms in 2020.

Send that post to your lawyers and professional staff — it’s the next best thing to having me in person, and a whole lot less expensive. If you’d still like to engage me to speak or to advise your leadership about future strategy, that’s awesome — please drop me a line. (And if you’re looking for other speakers in this area, well, I’m cooking up something for next year in that regard too).

None of this will happen overnight — this website, for one thing, now needs a complete overhaul, which I’ll be starting on in the new year. (While I’m at it, I should probably replace a photo that was taken during the Obama administration).

This change in direction isn’t something I’m undertaking lightly or without lengthy consideration — I’m moving away from an area in which I have a pretty decent track record and into an area in which I don’t. But I’m also feeling very good about this decision, that it’s the right thing for me to do and the right direction for me to go. So many opportunities are opening up now, for all of us, to re-examine “what we’ve always done” — and what we might now do instead that’s better, more meaningful, and more attuned to people whose needs are greater than our own.

Thank you for reading this far, and for indulging this update on what I’m up to. I sincerely wish you a safe, satisfying, and recuperative holiday season, and a better year ahead for all of us. May your own roads and horizons brighten with every step forward.

Lawyer licensing and competence in Alberta

I’m very pleased to let you know about Lawyer Licensing and Competence in Alberta: Analysis and Recommendations, a report written by me for the Law Society of Alberta. The law society’s Benchers (the elected lawyer directors of the province’s legal services regulator) accepted the report and all of its recommendations earlier this month. Preparations are now underway to implement the recommendations over the coming months and years.

For the inside story of how I came to write this report, and why it signals a new direction for my own writing and consulting career, please see this companion post. Here, however, I’d like to explain how the report itself came about, what its primary recommendations are, and why I believe it signals an opportunity for other jurisdictions to re-examine their own licensing and competence systems and bring them into the 21st century.

First, some background. Here are the essentials of how you become and remain a lawyer in Alberta:

  • Earn a degree from a Canadian law school or a certification from the National Accreditation Committee of the Federation of Law Societies of Canada.
  • Complete the bar admission program administered by the Canadian Center for Professional Legal Education (CPLED).
  • Complete a term of articling (one year of supervised practice apprenticeship with an Alberta lawyer in good standing).
  • Once called to the bar, annually assess your learning needs, choose a series of learning activities that will advance your proficiency in these areas, and report those activities to the law society.

This combination is unique in Canada: although three other provinces (Manitoba, Nova Scotia, and Saskatchewan) also engage CPLED to conduct their bar admission program, only Alberta does not use a “minimum number of CLE hours” system to ensure ongoing competence. (Indeed, Alberta stands alone in Canada and the US on that score.)

But back in February (which seems like a very long time ago), the law society decided to suspend lawyers’ CPD filing requirement while the system itself was reviewed and overhauled. That decision was triggered by uncertainty about whether the “self-assessment and learning activities” system was generating actual learning activity and whether the system had sufficient accountability to achieve that result.

But there were other issues at play. In 2019, the law societies of Alberta, Manitoba and Saskatchewan received the results from a survey of current and former articling students in those provinces. The news was bad: About one-third of all respondents reported discrimination, harassment, or ineffective learning environments or experiences during their articling term.

The law society had other concerns, too. It was worried about the degree of competence possessed by lawyers in their first few years of practice. It noted (as have other jurisdictions) dwindling levels of engagement in continuous learning by more senior lawyers. It recognized the dangers of an aging profession with insufficient retirement and transition plans. And it saw that BIPOC and internationally trained lawyers carried heavier burdens in all these areas.

I was engaged in April to write a report analyzing these issues and making recommendations to improve lawyer licensing and competence in Alberta. Although law school and legal education were outside my commissioning scope, I was otherwise encouraged to draw whatever conclusions seemed to me fit and justifiable. Five months, 25 interviews, 80 pages, and 30,000 words later — and with the absolutely irreplaceable support and assistance of law society staff — I handed in my draft report. Three months later (last week, to be precise), the law society accepted the final report and all of its recommendations.

To find out every last detail of this document, I’d obviously suggest you read the full report (or at least the executive summary at the start). But for present purposes, and in necessarily broad strokes, I’ll summarize my major recommendations and observations below.

1. Nobody has a greater impact on a new lawyer’s early career than the lawyer with principal supervising authority during their articling term. Supervising an aspiring lawyer is accordingly a privilege to be earned, not a right to be asserted. Any lawyer who wishes to act as an articling student’s principal should successfully complete an application process and training program to qualify for the role.

2. Articling suffers from several defects and inadequacies, but its biggest fault is that it is the sole method by which Alberta lawyers can gain their required supervised practice experience. The law society should develop new “pathways to practice” that provide consistency, defensibility, and accessibility, to supplement (and conceivably to soon replace) articling, such as a Law Practice Program, an integrated practice curriculum in law school, or a law society-sponsored “teaching law firm.”

3. There is no evidence that Alberta lawyers in their first three years of practice pose an outsized competence risk. But these lawyers, like early-stage lawyers everywhere, are credentialed and sent into the market before they are ready. The law society should provide a mandatory annual fleet of training, knowledge, and support programs in law practice management, business operations, client relationships, and other practical areas of critical importance for new practitioners in their first three years.

4. Articling students and new lawyers receive inadequate levels and types of supervision, particularly when it comes to their formative and restorative development (transitioning to practice, receiving mentorship, maintaining mental and emotional health). Every new lawyer should be automatically “opted in” to one of Alberta’s two outstanding lawyer mentoring programs (with the option to opt out for any reason).

5. Alberta’s self-assessment and learning outcomes CPD system is fundamentally sound and represents best practices in professional adult education worldwide; the province should not switch to an hours-based system. But the current system should be improved, by training lawyers in the art of skill self-assessment, focusing more on learning outcomes than activities, instituting random audit checkups to ensure lawyers’ compliance with their learning activity commitments, and periodically providing mandatory activities for all lawyers in areas of core competence less likely to be addressed individually.

6. Lawyers with more than 20 years at the bar present demonstrably lower levels of competence risk, and senior lawyers generally find most CPD activities lacking in relevance or utility. The law society should provide these lawyers with an optional CPD system that allows them to fulfill their learning requirements by engaging in a program of mentoring, new lawyer education and training, and public legal education and service.

7. Sole practitioners are the backbone of access to justice for individuals and families, especially in smaller communities; but they are unfairly under-resourced and overburdened with management duties compared to their colleagues in larger law firms. Lawyers who wish to start sole practice should be required to complete a training program to provide them with the knowledge, support, and resources to help them practise effectively and competitively. Given the risks to their clients of a sole practitioner’s incapacitation, these lawyers should also be required to create and file with the law society a business continuity plan.

I also made several observations throughout the report (or during my preparation of it) that were not submitted as actual recommendations, but that I felt warranted attention:

  • The airtight separation of legal knowledge and legal practice in law school is fundamentally wrong and needs to be addressed at the earliest feasible opportunity, through a collaborative process involving multiple justice system stakeholders.
  • Lawyers who are Black, Indigenous, persons of colour, or internationally trained suffer systemic discrimination and unfair treatment throughout their careers but especially at the outset. This needs to be addressed and corrected.
  • CPLED’s bar admission program, which focuses on lawyer skills and experience and does not include anything like a “bar exam,” is a best practices model for lawyer licensing that every other jurisdiction should study and emulate.
  • “Graduated licensing” is an impractical solution to a different and fundamental problem: Lawyers enter practice three to five years before they are truly ready to serve clients effectively. We must reform lawyer formation altogether.
  • “Minimum hours of CLE” is an antiquated input-based learning measure that provides no assurance lawyers have learned anything that will help them serve clients or practise law more effectively. CPD programs should abandon it.

There are several other aspects of lawyer licensing and competence assurance that are worth further exploration, but the law society did not engage me to write a scholarly treatise on the subject. My report aimed to be as practical and implementable as could be managed, given the realities of limited budgets, lawyers’ deep aversion to change, and the small matter of the pandemic. Most of all, I wanted to give the people at the law society a realistic blueprint for making incremental but important improvements to the province’s lawyer licensing and competence systems.

That last point gives me an opportunity to acknowledge with gratitude everyone at the Law Society of Alberta who was instrumental in bringing this report to fruition. Among the lawyers, I want to single out Ken Warren Q.C.  and Stacy Petriuk Q.C., Chair and Vice-Chair of the Lawyer Competence Committee, as well as all their colleagues on that committee; among staff, there are too many people to thank individually, but I want to highlight CEO and Executive Director Elizabeth Osler Q.C. and, in particular, Deputy Executive Director Cori Ghitter, without whom (as I said in the report’s closing lines) the report could not have been written.

I’d welcome any feedback that you might have about this report or the points raised in this post. And if you’d like to read my less diplomatically phrased observations about the state of lawyer development, licensing, and ongoing competence today, I invite you to read about my new career focus and the back story to this report, right here.

The end of serendipity

I plan to write about law firms a little less often in future, as part of a shift in the focus of my work (more about that in an upcoming post). But lately I’ve been thinking about the lessons law firms have been learning (or not) from the pandemic, and I wanted to share some thoughts about why managing and leading a law firm is going to become a lot more work in future.

To start us off, this American Lawyer article suggests that the “law firm leadership playbook” has been rewritten over the last several months. I think this is not quite correct. What’s happened is that many law firms have realized they don’t really have a leadership playbook as such — their leaders and managers, if I can extend the football analogy, are often sent onto the field without any plays at all. Consider some of the observations in the article about how much more difficult management has become during this crisis:

“…[W]e have to be really intentional about reaching out and making sure people are OK, mentally and physically. It’s not something any of us have ever trained for …  [I]t requires a lot more responsibility and time of our current leaders.” The remote environment … “has taken a big toll… because of the new demands of virtual management. [Managing partners] spend significantly more time managing.”

You’d have thought that managing is, you know, what managing partners do — it’s right there in the title and everything. In reality, of course, most managing partners are not trained for the role — they’re “managing” temporarily and part-time, keeping their practice running on the side with minimum lights and power until they can return to their real job full-time. This is a feature of law firm management, not a bug. Low-intensity management is standard in law firms because lawyers don’t like being led or managed. Actual leadership and trained management are not part of traditional law firm culture.

What if you had a pandemic and nobody came to be managed?

A consultant quoted in the article makes this connection more explicit:

“There’s a lot of concern out there about firm culture and what the glue will be that holds a firm together when people are not running into each other in the office, particularly with engagement and retention.” … In the past, a leader’s job could often be accomplished “just by bumping into people during the day, but now it has to be a lot more deliberate—and some are not up to that challenge.”

Now, what’s interesting is that the way law firms have gone about managing the firm and building culture is remarkably similar to the way in which they have gone about developing their junior lawyers: putting everyone together in the same space and hoping they run into each other in a constructive fashion. Consider the following claims made about the challenges of professional development when everyone’s working from home:

I’ve heard all these concerns expressed by managing partners I’ve spoken with — when people aren’t around each other physically, when junior lawyers can’t cross paths with senior lawyers and pick up work opportunities, how will they learn? How can they develop their business and professional skills? How can they absorb the firm culture, and how can that culture flourish if we’re not all together all the time?

But the answers to these questions, while obviously important, are less significant than the unspoken assumption upon which the questions are based — that the only way to really train and manage and acculturate lawyers is to have them show up in person and brush past each other many times a day.

Maybe that’s true. But if it is, law firms have a problem, as illustrated by this AmLaw article about the fundamental changes coming to legal workspaces post-COVID. A commercial real estate company’s survey of law firm personnel that asked people where they now want to work produced some noteworthy results:

Somewhere between 50% to 80% of [staff] would prefer to work completely remotely, although they may not get their wish. Even a majority of partners have said they wish to be in the office between zero and two days a week. Associates, likewise, appreciate the flexibility of working from home but also value the human interaction, collaboration and training they get in the office; 30% to 40% would like to come in less than two days a week. 

We are not going back to the “everyone in the office at the same time, all day, five days a week” law firm. Whatever its merits and demerits, that model has run its course, and something different will take its place. When it does, law firms will have to find new ways to train junior lawyers, manage senior lawyers, and build and maintain firm culture. More specifically, they’ll have to do these things strategically and intentionally.

Many law firms, it’s becoming clear, have been substituting mere physical proximity for planned and purposeful efforts to build culture, teams, and professionals. They’ve been content to set lawyers to work side-by-side in the same physical office and assume that culture and development would just follow automatically, like shy teenagers mixing at a high-school dance.

Pursuant to our rules about spoilers, we will not actually reveal the end of “Serendipity.”

In a word, law firms made serendipity a core element of their culture. They hoped that random encounters generated from the shared use of narrow office corridors would render unnecessary any efforts to actually exercise leadership or develop professional skills or build firm culture. Let lawyers be who they are and work as they like — culture will happen naturally. Let juniors attach themselves to partners and follow them around — they’ll learn the ropes on their own. (And if the juniors most successful at attracting partner attention happen to be overwhelmingly white and male, hey, what can you do?)

If the foregoing scenarios describe your firm in whole or in part, start thinking about how to build culture, management, and professional development systems intentionally and strategically. Some suggestions:

Culture: Every good article about intentionally developing a great law firm culture returns over and over again to two fundamental features: your firm’s purpose and its values. Why does your law firm exist? If its purpose is only to make money for the partners, it will always struggle to draw and keep good people. If it’s only to carry out whatever clients want, it will never stand out as truly superior or praiseworthy.

And then, what values animate the firm? Choose the ones that matter above everything else and make clear to everyone their primacy — where necessary, by requiring anyone (and I mean anyone) who violates those values to leave immediately. Force the issue of culture and values: Don’t make hazy declarations of good intentions while letting people do what they like. No good culture ever developed laissez-faire.

Leadership: The first rule of lawyer management has always been, you do not talk about lawyer management — never suggest to lawyers that they are obliged to follow a prescriptive set of rules about how to go about their business. But lawyers’ emotional frailty about being managed is unprofessional, and law firm leaders and managers must stop coddling it.

Tell lawyers what you expect of them, and hold them to it. Don’t let star lawyers attain diva status. Require people’s participation in difficult conversations. But most of all, legitimize management and leadership as essential standalone roles. End the silly tradition that leaders must also bill work and bring in clients. Hobbyist leadership is over. Law firm management is real, hard work. Treat it that way.

Professional Development: It’s not a coincidence that the pandemic has slowed associate development and left junior lawyers adrift. A crisis reveals an organization’s true priorities, and many firms have made very clear where their newest lawyers rank among their concerns. But it also reveals that, lacking physical proximity, most firms simply don’t know how to train new lawyers.

In future, a mix of online training, creative team-building exercises, and continuous mentoring will complement in-person experience on those occasions when your people can’t gather physically. So take this opportunity to reconfigure your suddenly available office space into a dedicated professional development centre. It’s nice that you really want to get back to the office. But “the office” isn’t going to be what it once was.

This is obviously a huge challenge for law firms — but it’s also a great, once-in-a-lifetime opportunity. Most aspects of law firm culture and infrastructure evolved inadvertently, through everyday practice, decades ago. They seem random and irrational because of how they came about, making them especially ill-suited to the 21st-century (post-)pandemic world. This is a chance to put aside all those old ways of doing things and replace them with smarter policies and practices — deliberately designed, expressly intended, and systematically rolled out.

You inherited a law firm model that was built almost by accident. Bequeath to your successors a model that was assembled very much on purpose.

Burn the ships

Someone emailed me the other day to ask whether I had contracted COVID-19, because I hadn’t posted anything here in several months. I took that as a hint to start writing again.

I’m fine, fortunately, and so is my family, and I sincerely hope the same is true for you. I’ve been active on Twitter throughout this time, and I’ve published three columns at Slaw as well. My absence from Law21 since May is owed primarily to a major project that came my way in the spring and just wrapped up a couple of weeks ago. I’ll be posting separately about that when the project is officially unveiled early next month, since it also marks a significant shift in the focus of my work that I’ll talk about at more length then.

For the moment, though, here are a few thoughts about our progress through the first year of the pandemic and what seems likely to happen over the course of the next one.

● After most Western nations slammed the brakes hard in the spring and slowed the ascent of the curve, we eased off too soon and too quickly, egged on by toxic leadership and hamstrung by confused messaging. We could have learned from New Zealand, South Korea, Vietnam, Australia, Rwanda, Scotland, Uruguay, and other national successes. Instead, we insisted on getting up and going outside while the tornado was still churning. The results were predictable and are terrible — surging cases and hospitalizations, overflowing ICUs, and (in a couple of weeks’ time) rapidly rising death rates.

● As a result, the next few months are going to be really hard. Even if we all went into “full lockdown” tomorrow, which we won’t, the hospitalizations and deaths of people who caught COVID-19 weeks ago are already “baked in.” If the US handles its Thanksgiving as poorly as Canada handled ours last month, you can count on the current surge lasting past Christmas. Some states have already hit ICU capacity; other states and provinces will follow, and it’s an open question whether hospitals and health-care systems in these places can survive it.

● It’s been a terrible year. But there is reason for hope. The recent announcements of very successful vaccine trials from Pfizer and Moderna are well ahead of the schedule most experts had expected. Our understanding of SARS-CoV-2 has vastly increased since March — it’s a multi-system disease rather than a respiratory illness, and we’ve developed better protocols for treating it and helping people survive it. Even though too many people refuse to wear masks, millions more do. And let’s be grateful that everything about fighting this pandemic will get easier starting January 21, 2021.

● I originally figured the pandemic had at least two to three years to run, and I made my projections accordingly. The unprecedented speed of vaccine development inclines me to revise that estimate downward. But. An announcement by press release is not the same as a vaccine in people’s bodies. We don’t know how long any of these vaccines confer immunity. Producing, bottling, distributing, and deploying (in two doses) hundreds of millions of vaccines across just one continent is a massive logistical challenge. Now multiply that tenfold worldwide. Until the pandemic is over everywhere, it’s not really over anywhere.

Among other things, this pandemic has been an object lesson in change management. People don’t like change and will resist it; you can frighten them into change for a while, but the fear wears off and complacency creeps back in.

What you need to do instead is explain what’s happening as best you can, identify the goal you’re trying to achieve and why it’s important, and tell people clearly what they need to do and how they need to do it in order to help achieve the goal. (I’ve just written a cover story for ABA Law Practice magazine on this very topic.) We did that reasonably well in April; by October, we had lost the thread. We need to get it back.

What about the legal sector? When I wrote my mini-series about law and the pandemic in the spring, my feeling was that we were in for a lengthy period of intense difficulty that would likely overwhelm parts of the legal system, but that would also create both the mandate and the opportunity to survey the damage done and come up with new and better ways to run law firms, educate law students, and administer justice. I figured that 2020 would begin a lengthy period of pain and endurance, but that 2021 would begin to generate progress towards improvement and eventually transformation.

In the event, I’ve been pleasantly surprised by the amount of progress that’s been achieved already.

Lawyers took to working from home like fish to water. Six months after lockdown, I don’t know any firms with more than 30% of their workforce in the office every day (most are around 15%), and that number will not grow over the winter. I think everyone-here-all-the-time law offices are done. We’ll see a few people WFH full-time, some in suburban satellite offices (maybe practice groups), and some in the main office a few days a week or full-time. But law firm culture and professional development, both built on the everyday physical proximity of lawyers,  won’t mesh with that, creating more change.

● Some law firms began getting serious about changing up their business models. More than a third of the AmLaw 100 now has a captive law company (or ALSP, if you prefer), and while COVID didn’t cause that surge, it surely accelerated it. Firms have also ramped up their commitment to technology, not just for remote work, but investing in software companies directly, merging to acquire software, designing platforms to help clients buy software, or even building and selling software of their own.  (To say nothing of standalone legaltech investments.) Law firms finally seem to be diversifying their means of production and sources of revenue.

● The biggest shift to this point has occurred in legal services regulation. Utah got the ball rolling by launching a regulatory sandbox that will allow unauthorized providers of legal services to operate on a pilot-project basis while the regulator assesses their reliability and effectiveness. British Columbia followed suit earlier this month, and California is still thinking about it. Expanded roles for para-professionals have also been approved or are being considered in Utah, Arizona, Minnesota, BC, and Ontario. But Arizona went furthest of all, to throw out Rule 5.4 against sharing fees with non-lawyers altogether.

● Not all the news has been good, of course. The justice system has responded less well than I’d hoped, but about what I realistically expected. Zoom hearings are nice and all, but courts’ troubles are multifarious and deeply rooted, while most of the solutions and better ways put forward are still theoretical. I’ve had some encouraging conversations with law school deans, but legal education still has a long way to go. Bar admission in the US has been an infuriating fiasco (#barpocalypse and #bloodybarpocalypse tell you what you need to know), while bar admission in Canada … well, check back here next month on that.

That’s as concise an overview as I can provide of an astonishing six months of upheaval in the world and in the law. For the balance of this post, I’d like to examine the one thing that, to my mind, really stands between where we are today — as lawyers, yes, but also as people and as members of our communities — and where we need to go.

In the final entry of my “pandemic series” in May, I wrote:

We need to appreciate that COVID-19 isn’t only, or even primarily, a public health crisis. It’s a political system crisis, in which a serious threat to public health fully reveals and further exacerbates the failure of disintegrating political systems, public institutions, and social norms. COVID-19 is not “merely” a crisis like the 2007-08 recession — it’s a catalyst, perfectly timed both to signal and to bring about the end of one era and the beginning, for better or worse, of another. The old world is passing away, mostly because it was time for it to pass away and to be replaced by something else.

I still believe that to be true. I regard the pandemic as the culmination or logical end point of a well-worn path of choices and a warning to respond and adapt urgently to their consequences. But what matters more is what you believe about the pandemic, and what everyone else believes, and why.

The distinguishing feature of the last six months has not been an unexpected mutation or heightened deadliness of COVID-19 — it’s essentially the same virus now as it was last December. The key feature of the last six months is what people decided to do about the virus. A remarkably large number of people decided to do very little, to keep living their lives the way they did last year, and many governments chose to allow or encourage those decisions.

Why did people make these choices? Maybe they didn’t want to believe COVID-19 was real. Maybe they believed it was real, but wanted it to be just a random bad thing, an “act of God” with no more meaning than an earthquake, something to be gotten through and moved past.

But I think that in most cases, it was because if people really accepted the truth and seriousness of COVID-19, then they would have to stop living one kind of life and start living another, for an unknown period of time. They would have to let go of the world they knew. They could not, or would not, do that. They weren’t ready.

Here’s another lesson about change management: People don’t change their minds. They change their hearts. They make a decision, consciously or unconsciously, to feel differently about something, and once they feel differently, then it’s the work of a moment to think differently and then act differently.

You’ve experienced this if you’ve ever decided to leave a job. Once you’ve accepted the offer from your next employer, it doesn’t matter that you’ve got two weeks left at your current job — you’re already gone. Your heart is no longer there, and your body can’t wait to follow it out the door. You mentally and emotionally crossed over, and suddenly your present became your past and your future became your present.

All of which brings me to the legal sector. Just as in everyday life, many lawyers are resisting the call to leave behind the traditional “legal world” and start building the next one. They recoil from the prospect of losing the old and familiar environment for the delivery of legal services, and they desperately hope for the disruption to be temporary.

They might very well get their wish. I remain deeply skeptical that the actual deployment of vaccines will go smoothly, and I find projections that we’ll all be “back to normal” by the spring very hard to believe. But I’m obviously not a medical expert, and I’d of course be delighted to see the pandemic brought under control as soon as possible. I’d like to see my kids back in school, to dine out, to travel again. I’d like to see an end to people’s suffering.

But that happy event would risk overshadowing the unhappy reality that our old legal system (not to mention our old world in general) still needs extensive repair at least and complete replacement at most. It would risk obscuring the reality that we have travelled a long way down an unsustainable path, and that if we hop right back onto that path whenever COVID-19 is tamed, we will inevitably wind up in crisis again. In the immortal words of Ed Yong, “Normal led to this.” Going back to “normal” will just bring us right back into the downward spiral.

You might very well feel torn right now, between your admirable hope for a better legal world and your understandable desire to get the old world back. If you work inside or operate or lead a legal entity of any kind, you might experience this feeling as wanting to hedge your bets, to hang back in a holding pattern, to wait and see if change really is necessary or if we can kick the can down the road once again.

But pause a moment, and look down — there are countless cans littered around our feet right now, all of them kicked there by us time and time again in the past. It’s COVID-19 that’s disrupting our lives right now; next time, sooner than we would like to suppose, it’ll be something else. How many “temporary disruptions” do you think we’re going to experience? How many more warnings of imminent system failure do you suppose we’re going to receive?

While I dislike its colonialist connotations, I do feel like the appropriate metaphor right now, for those of us able to lead change in the legal sector,  is to “burn our ships.” We need to commit, truly and fully, to change for the better in the law. We need to take this opportunity to transform the legal world and run with it. If we hesitate — faltering at this fork in the road, yearning to keep all our options open — we risk missing this chance to open up some distance ahead of the tsunami that’s still gathering behind us, gaining speed.

A door to the future has been pushed open by awful circumstances, which hopefully will soon end. But do not let that door close. Wedge it open, and help lead others through it. The sea is still rising behind us.

Pandemic X: To the class of 2020

This tenth and final instalment in what became a “pandemic series” of posts isn’t a standalone entry so much as an epilogue to what I’ve written over these past six weeks. Mostly, it’s a message to the graduating law class of 2020, although it also applies to the subsequent cohorts of 2021 and 2022, and to recently called lawyers as well.

This pandemic will be a turning point for all of us, but especially for you. A new set of external conditions beyond our control now governs everyone’s day-to-day lives and will do so for the foreseeable future. That’s the backdrop against which the first years of your legal careers will unfold. Let’s talk about what that means for you and what you can do about it.

Law Firm Jobs

The most obvious disruption for the class of 2020 (and those that follow in its wake) will be your post-graduate employment. Midsize and large law firms, which account for roughly half of all first-year lawyer hiring in the US and Canada, are laying people off, reducing partner draws and cutting employee salaries. Summer and associate programs are being postponed, cancelled, or converted on the fly into remote onboarding.

It’s not hard to see why. The prospect of a global economy destabilized for at least two years, as a virus tears through populations and severely constrains economic activity, is making law firms deeply concerned about their future. They are going to sharply reduce what they regard as non-essential activities — and you should be aware that in most law firms, the only essential activity is keeping partners happy and well-paid. Law firms’ lawyer population is therefore going to take a significant hit over the next couple of years.

I’ve been warning for awhile now that law firms will hire ever-fewer new associates, as more entry-level client work normally assigned to inexperienced junior lawyers stays in-house, is redirected to specialized law companies, or is given over to software programs. Our current and coming economic seizures will likely compress years of this gradual reduction into several months of substantial cutbacks in lawyer employment.

So one outcome on the other side of the pandemic will be that larger law firms will no longer be the default career starting point for tens of thousands of new lawyers every year. On balance, this isn’t entirely a bad thing.

Working as an associate in a law firm is excellent training for continuing to work as an associate in a law firm and, if that’s your dream, someday working as a partner in a law firm. But “law firm lawyer” is only a plurality of all law jobs today and will be a minority of law jobs throughout your career, and it doesn’t prepare you especially well for the other options.

There are obviously financial and brand-association advantages to starting out with a well-known law firm —  but there are steep costs as well, and risks to your personal well-being. Ultimately, there’s nothing magical or inherently meritorious about working in a law firm, and it shouldn’t be your default entry point into the law.

Your Next Jobs

What should be your entry point? During this crisis, it should be anywhere you can rack up some experience, build some skills, and add some contacts to your network while pulling down enough to pay your bills another month. Let’s dive into that.

What kind of experience? Ideally, it will include on-the-ground problem-solving, as you help individuals and organizations move from a problem to a remedy in real time, learning as you go how to handle people in crisis. It will include opportunities to look outside “the law” for solutions, working with people from other technical and professional backgrounds and appreciating just how much they know. It will include occasions where you have to make the best call you can with limited information, hopefully with colleagues and supervisors to help you deal with the inevitable times when you get it wrong. This is exactly the kind of experience your future employers, colleagues and clients will prize.

What kinds of skills? In addition to the triage responsiveness described above, there is an almost overwhelming array of “future lawyer skills” to choose from, any of which will make you a more valuable and effective lawyer. I’ve written extensively about these skills. Researchers have studied them. Law schools are offering graduate certificates in them.  Regulators are starting to provide and require them. Legal operations professionals, whose ranks will expand significantly this coming decade, have provided extensive resources for them. Review these lists, identify the skills that attract you the most, and look for opportunities (paid, if possible) to develop them first-hand.

What kinds of contacts? There are almost no bad contacts to make in the legal world, and I hold out hope that the legal profession’s traditional helpfulness towards new practitioners will survive the pandemic. But I say again: Break out of the lawyer bubble. Connect and collaborate with other service providers and technical experts. In particular, build out your demand-side networks, from in-house counsel to legal operations professionals to small businesses to community organizers to advocates for the marginalized to government officials. Use Twitter to find people and LinkedIn to connect with them, or more modern platforms better suited to your demography.

There will be some full-time jobs out there to be had, but I suspect that most of the opportunities that surface in the coming months will be shorter-term, project, flex-time, and informal. If that’s what’s available, grab it and use it to get experience, develop skills, and/or make new contacts. Push your law school’s career services people to point you in promising directions here, and don’t hesitate to draw on every contact you’ve made during your brief time in the legal community for help.

You could also form “search parties” with your law school friends and classmates to hunt for opportunities, pooling your findings in a spreadsheet or Google Doc and meeting online once a week to compare notes. Think of it as study group for legal employment — each member contributes some research and benefits from everyone else’s efforts. You might uncover an ideal opportunity for someone else, and they for you. (No better way to develop your collaboration skills, too.)

The bottom line is, if you can wrangle some paying work that allows you to survive these next few years while ticking even two of the foregoing three sets of boxes, you’ve done really well for yourself. And if you can land something steadier and more structured that delivers these benefits, that’s even better.

But many new lawyers won’t be fortunate enough to fall into either of these categories, and the reality is that you might be among them for awhile. If so, then the only other point I can make, and I want to make it very strongly, is that there is absolutely nothing wrong with you if that turns out to be the case. None of this is your fault. You and your cohort drew the short straw. History found you. It’s not right, and it’s not fair — but it’s not your fault. I’m not sure if enough people have told you that.

That’s as much as I can usefully tell you about dealing with this tsunami and learning to tread water as it continues to surge inland. So I want to take the balance of this post to talk about what it means to launch a legal career in tandem with a global health crisis and severe recession. In order to do that, we need to understand as clearly as we can what’s really happening out there.

The Nature of This Crisis

Many people have correctly observed that we can’t “go back to normal,” that the post-pandemic world will be fundamentally different from the one we left behind in March. That’s true, but it doesn’t tell the whole story: that the “normal” world we left behind was an unsustainable, slowly collapsing mess.

We all saw the same things: political dysfunction and xenophobic tribalism, loss of faith in institutions and social norms, decaying physical and societal infrastructure, staggering inequality and the shredding of the social contract, accelerating environmental breakdown, and widespread addiction and loneliness. So many problems, so few solutions and a dwindling capacity or inclination to seek them out. Why would we want to go back to that?

We need to appreciate that COVID-19 isn’t only, or even primarily, a public health crisis. It’s a political system crisis, in which a serious threat to public health fully reveals and further exacerbates the failure of disintegrating political systems, public institutions, and social norms. COVID-19 is not “merely” a crisis like the 2007-08 recession — it’s a catalyst, perfectly timed both to signal and to bring about the end of one era and the beginning, for better or worse, of another. The old world is passing away, mostly because it was time for it to pass away and to be replaced by something else.

The same can be said for the pandemic’s impact on law. You’re probably aware that the legal system’s failure to provide adequate access to justice has massively worsened over this past decade. You might have heard that lawyers are overworked, overstressed, and more prone than most to depression, substance abuse, and suicide. You know only too well that your own path into this profession has driven you hundreds of thousands of dollars into debt while giving you little preparation to deliver legal services. Some of you might even live in a place where you have to show up in person during a pandemic to write a bar exam.

All of this is “normal.” None of it is right. The gap between what we’ve been doing in the law, and what we should be doing, has grown too large. The pandemic is now forcing us to reckon with that gap, to come to grips with how it developed and to deal with it once and for all.

Here’s how the gap developed: Over the last 40 years, demand for legal services exploded in terms of both volume and complexity. But supply failed to keep pace — although the number of lawyers increased, our service delivery remained narrowly simplistic, our justice infrastructure became dangerously archaic, and our legal institutions stubbornly refused to adapt to changing needs. We could never have produced enough lawyers and built enough courthouses to meet the surge in demand, but we went the opposite way — lawyers blocked the entry of new providers, judges rejected the use of technology in courts, and both stood by while governments eviscerated justice system funding. The resulting scarcity of authorized providers and the absence of robust systems drove the price of legal services beyond the reach of all but the rich and the corporate, creating massive backlogs that delayed and denied justice while preserving the profitable status quo for a select few.

This was just not sustainable. Our old legal institutions — judicial, regulatory, educational, private-sector — have been worn down to exhaustion trying to serve new legal needs they were never designed or updated to meet. Now comes the pandemic, to present us with the bill for our neglect and to ring down the curtain on this turbulent era in the legal services sector.

And now come the people who will lead us into the next era in legal services. Now comes you.

The Part You Will Play

It’s very important to me that you understand this fact: Your legal career will outlast this pandemic. Your legal career, in fact, is going to bury this pandemic — you will be sailing along as a happy, successful, fulfilled lawyer when COVID-19 has long been just a bitter memory. You’ll be active in the law, or in business or in your community, well into the 2050s and 2060s. “I started practising law in a pandemic” will be how you begin a familiar story to your grandchildren.

You will not be defined by this pandemic. Lawyers who entered the practice of law in 1929 are not known today as the Stock Market Crash Generation. Those who entered it in 1933 are not remembered as the Depression Generation. They are all collectively known as the Greatest Generation. They are remembered not by what was done to them, but by what they did. The same will apply to you.

You will be defined by, and remembered gratefully for, the mandate you accepted to renew the law and build a better legal system. You responded to an unexpected change of plans, and an unfair burden placed on your shoulders, with courage, compassion, and creativity. You recognized that the law was trying to solve complex new challenges with old worn-out institutions, so you kept the finest principles underlying those institutions and threw out the junk and wreckage that had accumulated around their foundations.

You entered the law encumbered with debt and anxiety, but unencumbered by the cultural baggage of “the way we’ve always done things” or by allegiance to self-preserving barriers to change. You decided that law firms ought to be smart businesses where a diversity of ethical professionals solved law-related problems and provided good counsel at a fair and predictable price to clients who trusted them. You decided that legal needs could be met by a wide range of trustworthy providers at different price and complexity points, or by free automated systems for the simplest matters. You decided that civil justice should be a universal public utility and the court system should only manage conflicts between the state and its people.

Or maybe you didn’t do any of these things, but you did an array of others. It doesn’t matter what your accomplishments ultimately end up being — it matters that you entered a legal system in desperate need of revitalization and renewal, and you took on the job, because it needed to be done and it was worth doing. And because you’re a lawyer, and that’s what you do.

I have immense confidence in both your willingness to take on this role and in your ability to absolutely crush it. I said earlier in this post that “history found you” — but in truth, you are exactly who we needed history to find. You are smarter and more capable than any generation of lawyers who came before you, and you will prove your resilience, your reliability, and ultimately your wisdom throughout this crisis. You will lead.

We all need to buckle up for the roughest ride of our lives. We’ll all play our part in the dismantling of a broken legal system and the design and construction of a new one. You’ll have plenty of help along the way, probably more than you’ll know what to do with. But most of us will be stepping off this bus in the coming years and decades, whereas you’re going to be here for the whole trip. The first problem you’re going to solve as lawyers is the legal system itself — and believe me, after that, everything else is going to feel like a walk in the park on a sunny day.

This pandemic, and the legal system crisis it’s catalyzing, are going to be incredibly tough. But you’re tougher, and you’ll win. Go get it.

Pandemic IX: Law firm transformation

Someone asked me the other day my opinion on where the pandemic is taking the legal profession, given my status as a “legal futurist.” I’ve never much liked that term and have never used it to describe myself, so I was happy to reply, “You know, I think we’re done talking about ‘the future.’ There’s not much point anymore. The future’s here.”

SARS-CoV-2 has convulsed the world and created extreme uncertainty in every facet of our lives, such that there are few benefits of trying to predict, today, what the world will look like after the crisis ends. Predictions based on what data? Relying on how much evidence?

We can make educated guesses and we can map out various scenarios, and I don’t want to discourage those attempts. But we know less than 10% of what we’ll eventually know about this disease and its impact on humanity. We’re in a whiteout blizzard; we need to wait for the storm to ease a little before we can start to make out the unfamiliar terrain around us.

What I’ve instead striven to provide in this series is not so much prediction as prescription: Here’s what we can do right now to get through the initial onslaught of the storm, and here’s what we should do to start building better structures and systems to replace the ones that won’t make it through to the other side. I don’t think we should expect more of ourselves than that, at least until the outlines of our situation become clearer.

In today’s entry, the second-last in this series, I’m not even going to do much prescription, because been there, did that. I’ve spent much of the last 10 years recommending a new purpose and business model for law firms — as you might know, I wrote a book on the subject almost three years ago.Law is a Buyers Market - book cover thumbnail

So the first thing I’m doing today is making that book — Law Is A Buyer’s Market — essentially free for anyone who wants it. The hard-copy version is out of print, but you can download the PDF right here and distribute it as widely as you want. You can also still buy the Kindle version at Amazon, where I’ve reduced the price to US$2.99, the lowest Amazon will allow.

Secondly, I’m going to provide links to articles about law firm strategy and management that I’ve written in those intervening three years. You can consider these links to collectively constitute a de facto second edition of the book, or additional chapters that I would have included had they been written before the book was published.

    1. Clients. How can we prioritize our clients’ interests above all else? How to improve our law firm client experience and Is our law firm fulfilling its purpose?
    2. Service. How can we measure and improve our client service? A simple measurement of client value and As good as it gets?
    3. Business Model. How should we reconfigure the business of our firm? Rethinking law firm productivity measurement and Break the law firm business model
    4. Practice Groups. How do we manage our practice and industry groups? Law firms’ shopping mall problem
    5. Partners. How do I manage my powerful partners? Who really owns our law firm? and Don’t fear the rainmaker
    6. Associates. How should we rethink our associates and talent development? The revenue-neutral associate and Law firm culture and the “war for talent”
    7. Pricing. How should we price our services? The problem with value pricing and The rise of market pricing
    8. Compensation. How should we (not) compensate lawyers? How compensation plans are wrecking law firms
    9. Diversity. How do we completely change our approach to diversity? Law firms’ problem with women
    10. Technology. How should we incorporate AI into our firm? Getting over technology and Thinking differently about legal AI
    11. Innovation. How can I encourage more innovation in the firm? Faster horses and What will lawyers do now?
    12. Collaboration. How can I encourage more collaboration in the firm? The reality of collaboration and The price of collaboration
    13. Culture. How do we strengthen our law firm’s culture? Re-personalizing law firm culture
    14. Wellness. How can we ensure our lawyers’ wellness? Crushed and How to make less money
    15. Change Management. How can I lead change in my firm? Changing the lawyer assessment system and How to bring about change in law firms
    16. Future. How do we plan for our firm’s future? We’re here for a good time, not a long time and Fight the future
    17. The Big Picture. What does the really big picture look like for law firms? The cause of, and solution to and The new legal economy

And thirdly, in the balance of this post, I’m going to share with you my early thoughts about how this pandemic and its aftermath will eventually change the nature of law firms of all sizes, especially large full-service firms.

To be clear, this isn’t a prediction about the future of law firms — we don’t have nearly enough data yet. Nor is it a deeply detailed blueprint for the completely transformed law firm — I’m still working out what that might look like, and when I finally do, the result will probably be a major standalone article rather than a blog post. But I think I can delineate the outlines of one possible “future law firm” at this stage:

The thing about law firms is that they have always been home to two warring forces: the interests of the firm, and the interests of the firm’s individual partners. I wrote about this idea years ago here at Law21, and it constituted a cornerstone concept of Law Is A Buyer’s Market.

The interests of the firm include growing the business of the firm as a whole, building strong relationships with clients, amassing a powerful knowledge and data core, developing standalone lines of revenue independent from individual lawyers, and other goals consistent with making the firm as a business entity more capable, independent, and dominant in its chosen markets.

For the most part, the interests of individual partners run counter to these goals.

  • Whereas the firm wants to strengthen ties to key clients, so as to reduce the risk that the client might someday depart the firm along with their relationship partner, the partner wants the opposite: weak ties with the firm that virtually oblige the client to follow the partner wherever they might go.
  • Whereas the firm wants the partner to cross-sell the services of their colleagues in order to generate more business, the partner wants to avoid any risk that the cross-sold lawyer will disappoint the client (bad) or absolutely delight the client (maybe worse).
  • Whereas the firm wants consistency of retainers, communication, pricing, and billing, in order to maximize brand value, the partner wants complete autonomy to run their business the way they want, and to keep the firm brand from overshadowing their own.
  • Whereas the firm wants to grow overall revenue and profits, so that a rising tide will lift all boats, the partner doesn’t care all that much whether anyone else’s boat floats a little higher or lower, because the partner is concerned with only one vessel: their own.

You could think of these opposing forces as “centripetal,” or centralizing (the firm tries to strengthen the forces that pull key elements of the firm towards the centre), versus “centrifugal,” or decentralizing (the partners react against these efforts by asserting their own autonomy, keeping firm management within tight boundaries, and threatening to fly the coop if they don’t like how things are going).

Now, as you already know if you’ve worked in a law firm anytime during the last 30 years, individual partners have been winning the war against their firms so thoroughly that they look like the Harlem Globetrotters wiping the floor with the Washington Generals. Centrifugal > centripetal, and it hasn’t been close.

But the other premise of my book was that after countless years of ignominious defeats, the law firm as an entity was mounting a comeback. Driven by factors such as dedicated and professional leadership, the unstoppable rise of technology, and the growing power of a dominant and differentiated brand, firm managers and leaders were starting to assert more control over individual partners and enabling their firms to act more institutionally than they ever had.

And there was reason to think that the comeback was accelerating. As firms set up more subsidiaries, created more R&D functionalities, and brought in more technology-powered client-facing sources of revenue that they controlled and directed centrally, rather than being dependent on individual partners, the firm’s power base would grow and those centripetal forces would become stronger.

That was the theory, at least — a pretty good one, if you ask me. And I still think that for many types of legal service providers, that’s the model that will eventually win out. But the pandemic has exploded onto this battlefield, and in the initial stages at least, it is lending its strength to the centrifugal, decentralizing forces within law firms.

Consider some of the early impacts and likely knock-on effects of the pandemic:

  • At the most basic level, physical distancing requires everybody in the firm to stay away from each other, working from home and connecting only by audio and video, thereby weakening the ties that everyday physical proximity help to bind.
  • As lawyers work from home, carry out tasks, and docket their time, it becomes ever clearer to both the lawyers and the firm that billable legal work can be carried out without the firm’s active presence or involvement. Lawyers are busy; the firm is dark.
  • In a crisis situation, decisions frequently have to be made on the spot with limited consultation opportunities. Lawyers really don’t like this, but they’re doing it — and as they do it successfully, their sense of autonomy and independence grows stronger.
  • Firms are unlikely to press their lawyers to maximize billings during a pandemic, reducing the relentless pressure most lawyers experience. Lawyers will see that this and other supposedly “impossible” changes turned out to be possible after all, and they will remember it.
  • As physical distancing relaxes or becomes less frequent as the pandemic slowly runs its painful course, a certain percentage of partners are not going to return to their offices — they’ll have made alternative arrangements that they prefer, and they will not be told when and where to go to work.
  • Other lawyers and staff will follow these partners’ lead, and firms will increasingly find themselves with vacant offices in expensive high-rises. In an effort to cut their losses, they will downsize their physical footprint or convert unused offices and cubicles into high-tech conference spaces.
  • Satellite offices in suburban parts of the city will soon start to spring up, where partners in a practice or industry group gather their associates and support staff. These groups had long been firms’ true power centres, and physical independence will strengthen them further.
  • Law firm headquarters will become home to senior management, a few aging traditionalists, and client meeting areas. In an effort to maintain presence and relevance, these HQs will also host training academies for new hires and fully staffed R&D divisions to develop new client-facing products.
  • Within three short years of the pandemic’s arrival, then, law firms could change from highly centralized collections of disparate lawyers sharing a common space and culture to hub-and-spoke arrays of high-powered legal experts held together by a valuable brand and not much else.

Again, this is just one possible path forward among many, and I want to keep these possibilities deliberately vague at this stage, because the absence of meaningful data about our current situation and immediate future renders any attempt at prediction little more than speculation.

But any one of these paths forward could spawn multiple second- and third-order effects. There’s no obvious reason, for instance, why one of these satellite offices could not be embedded onsite with a major client, or why any law firm so decentralized should bother maintaining the traditional full suite of service areas with widely varying client types and profitability levels. And what about multi-disciplinary workforces? What about non-lawyer ownership? Both of these innovations are much nearer today than they were just two short months ago.

So I invite you to use the foregoing thought exercise to consider how this pandemic — a shattering force of chaos, anxiety, dissension, fragmentation, and isolation — is likely to forever alter the trajectory of law firm transformation. Which existing virtues of law firms will the pandemic undermine? Which elements of discord will it aggravate? Or, if you prefer to approach the question more optimistically, which positive aspects will it encourage and which negative tendencies will it ameliorate?

Or — and we have to consider the possibility — will the impact of the worst worldwide health emergency in more than 100 years, coupled with a potentially Depression-scale economic contraction on a dangerously interdependent planet, simply blow “the law firm model” to pieces? And if so, what do we do next?

I don’t have answers to any of these questions yet — I’m still trying to work out the right questions to ask. My book, the foregoing links, and these last three posts are the best advice I can currently give to law firms about their eventual future state.

But I remain confident that if we can keep our core principles about the professional business of legal service, the well-being of our colleagues and employees, and the interests of our clients firmly and foremost in mind throughout this ordeal, we’ll do okay. Maybe a whole lot better than okay, in fact.

And one last piece of advice: Stay connected with each other. This pandemic, like I said, is a shattering force of dissension, and it aims to both literally and figuratively drive us apart from each other, to divide us and isolate us. In that regard, it has plenty of allies, especially in certain governments.

Whatever the merits of centrifugal force in law firms might be, I urge you to resist its rupturing and fragmenting effect in your communities and in our society. We are better together, stronger together, and strange as it might seem, healthier together. No one individual can stop COVID-19. But one whole planet can — and will.

Pandemic VIII: Law firm transitions

My previous post in this series offered lawyers four suggestions for carrying out triage during these first several weeks of the pandemic. Perhaps you’ve considered those ideas, maybe adopted one or two in your law business, and hopefully have seen a few early indications that they’ll have some value.

But regardless of the methods you’ve been using to keep your law business going through the early days of this crisis, you can’t triage indefinitely. At some point, as everybody gets a little more oriented to the chaos around us, you’ll need to turn your mind to some short- and medium-term ways to solidify your law business throughout the pandemic and start transitioning your firm to the next stage of its development. That’s what I hope to tackle in this post.

I want to be clear at the start about time frames and expectations. It’s been about three weeks since I began this series with an assessment of the public-health crisis presented by SARS-CoV-2 and its implications. During that time, most countries have “bent their curve” somewhat, but only a few have flattened it, and some (like the US and Britain) sometimes appear to be aiming for the opposite effect. The chances of a quick resolution to the pandemic were always slim, but outside of a few forward-thinking and fast-acting places like South Korea and New Zealand, they now appear to be none.

So I think this is what you should probably expect: The pandemic has at least another 12 to 18 months to run before a vaccine is developed and eventually deployed. During this time, we should anticipate a deep and wide global recession compounded by rolling lockdowns, supply chain breakdowns, waves of debilitating illness, and a few potential outlier occurrences that aren’t worth serious contemplation. Actual events could take a sunnier-than-expected turn, for which we would all be grateful; but prudence would suggest assuming a less-than-optimal course ahead of us and planning accordingly.

What we’re entering, then, is kind of a “siege” period, to be followed by a long and slow recovery as we edge towards a new post-pandemic economy and society. I have no idea how long either of these periods will last, but depending on your type of work, I would operate on the assumption that a significant portion of what you’d consider your “ordinary course of business” work will be suspended for some time to come. I would go further, in fact, and build into your calculations the likelihood that although some of that work should return in the new world, a pretty decent chunk of it will not.

Nobody knows when this will be “over.” But most everyone agrees that the world we wake up to on that day will be markedly, maybe even radically different than the one we inhabited before this all started. There is no “normal” to get back to anymore. The market in which you used to sell legal services is gone, and the one that eventually replaces it — the new, new legal economy — will be sufficiently different that how you ran your business before is not how you’ll run your business then.

Therefore, both for the short- and the medium-term, you need to start making some adjustments to your law business. The sooner you start, the sooner you’ll figure out which adjustments to abandon and which to keep, and to get better at the latter. Here are eight potential adjustments for your consideration, some for immediate deployment, others for further down the road.

1. Narrow or drop your ancillary work. I expect that in your law business, as in most businesses everywhere, the adage “80% of your revenue comes from 20% of your clients, and vice versa” applies. Now might be the time to finally clear out some or much of the 80% of your work that generates just 20% of your revenue. Unless that 80% includes a burgeoning area of practice that you’ve just launched and that you reasonably anticipate will survive the pandemic, this category was contributing little to your bottom line two months ago and is now probably a break-even distraction at best. In a crisis, you need to focus on essentials.

Review your last 18-24 months of financial statements and look for that 80-20 split, seeking out the backbone and beating heart of your revenue and profitability in the 20% — most likely, either a few major clients or a few select practice areas, and prioritize them. Obviously, if one of your major clients just filed for bankruptcy, don’t include it on the critical list — but do look for similar businesses in its industry that you could target, or even better, stay in touch with the principal to see if you can assist with her own transition. The range and capacity of your law business (along with your personal bandwidth) have been restricted by the pandemic; you should narrow your own focus in turn.

2. Start a government benefits practice. In an economic meltdown like this, when private businesses shut their doors and the state starts sending people money to live on, it suddenly becomes very important to know how to access government benefit programs. Unfortunately, such programs are often labyrinthine and user-hostile even at the best of times, which these are decidedly not. People have a dire and immediate need to navigate these systems, but many aren’t in a position to fully access them.

So you could become known as the go-to (or at least, a go-to) expert in your area concerning the sorts of benefits people are entitled to receive, under what circumstances they can be accessed, and how to actually navigate all the obstacles and red tape to obtain them. Many clients might be glad to have a lawyer handle the whole process for them for an affordable flat fee. If you get enough business of this type and develop robust routines for accessing benefits, you could even automate, scale, and expand the geographic scope of this work beyond your region.

3. Take on the government as a client. The flip side of the previous coin is that the government (federal, state/provincial, and municipal) is going to be taking on many more responsibilities in the next year or two. This includes not just making financial payments, but also issuing health-care directives, criminalizing (or de-criminalizing) certain activities, vastly increasing taxing powers (all that benefit money has to come from somewhere), and so forth. But few government legal departments have anywhere near the capacity for this type of mandate expansion.

Enter your law business: Working on a contract or agency basis, for a reasonable monthly fee, you could take on many legal aspects of the increased government role. Don’t underestimate the potential here: Although nobody wants and few people seriously expect another Great Depression, remember how much the role of the government expanded with the New Deal in the 1930s. It is plausible that a Green New Deal, or variations in other countries, might be in the works a year from now. Your law business could start today to develop the relationships needed to get some of that work.

4. Become a business conversion expert. Auto manufacturers making ventilators? Liquor companies making hand sanitizer? Clothing stores making masks? Even if some of these stories are a little over-sold, the fact is that many businesses whose usual customer base has disappeared during this crisis are trying to shift gears to meet rapidly rising pandemic-driven demand in other areas. But there’s more involved in this kind of strategy than just the mechanical and procedural adjustments (which are all difficult enough). There’s also the legal aspects.

Businesses attempting to switch their production lines virtually overnight need rapid assistance with obtaining permits, getting environmental clearances, acquiring export licenses, getting employees trained and licensed, and so on — and you could be their legal counsel. You might even use your experiences here to start a series of podcasts or webinars in which you advise businesses considering such transitions about the issues they need to deal with, thereby creating potential clients in a whole new market for legal services that you’ve effectively invented.

5. Form a Mastermind group. Maybe you’ve already heard of Mastermind groups, helpfully defined by Wikipedia as “peer-to-peer mentoring groups used to help members solve their problems with input and advice from the other group members.” The concept is nearly 100 years old — interestingly, it was first coined shortly before the Wall Street crash of 1929. But Mastermind groups have become popular recently as a forum in which several people rely on each other for insights and directions, usually in a business context.

Why would this matter to you? Because Mastermind groups need a facilitator — someone who gathers the members together, conducts or leads the conversations, ensures that everyone gets a chance to say their piece, offers timely advice and insight, and keeps the conversations motoring along. Think about clients who share a common industry or personal issue, whether it’s CEOs or newly divorced parents. Think about Zoom meetings where they share their worries and solutions in a safe and confidential environment, hosted by a trusted advisor who charges them a monthly fee to organize and run their meetings. Now could be just the moment to try this out.

6. Do as much as you can on a flat-fee basis. Your clients, I’ll assume, have never liked being billed by the hour. I’d venture a guess that you and the other lawyers around you don’t love it, either. But you’ve all felt like you were stuck with it. Right now is your opportunity to finally change that — to run an experiment in real time to see whether flat-fee billing is practical, viable, and profitable. As I discussed in the previous post, offer to set up informal arrangements with your clients to do what you can for them in exchange for a digitally deposited monthly fee. You should get at least a few takers.

Continue to record the time you spend on these files, but only for your own internal review. Make contemporaneous notes about how productive you feel when working “off the clock.” At the end of each month, run the numbers on the flat-fee work and compare it to the hourly billed files. Which generated more revenue and profit? Which did you enjoy more? Which rewarded you for getting the job done faster and moving to the next thing? How did the client feel? How could you make the flat-fee work more profitable? Some legal tasks in the future, to be sure, will still be done hourly; but much of what lawyers do will be flat-fee. Start training your law business for this future now.

7. Build social capital. Even with all these activities and other billable work, odds are you’ll still have some professional time to fill. Now might therefore be an opportunity to build your social capital by reaching out to other members of your community, both legal and otherwise, and help to “produce public goods for a common good.” In a pandemic, there’ll be no shortage of ways in which you can meet local needs, help the less fortunate, create community value, and strengthen your networks of relationships. You do these things, of course, because it’s the right thing to do, especially in a crisis. But there are tangible long-term benefits to your law business, too.

In his terrific new book Lawyer Forward, Mike Whelan explains the meaning of social capital in the legal sector context. “The problem with the modern world is that we tend to ignore just how connected we all are,” he writes. “When we resist the isolating pressure of the traditional law firm model and instead connect with our communities, we’re creating opportunities for cooperation. That may look like friendship, or lawyer-client relationships, or leadership. However you build your social capital, you’re gathering a cooperative tribe.” Find your tribe and seek out opportunities to contribute to it, and perhaps even to lead it.

8. Put your employees on the innovation file. Even if every one of these suggestions pans out, you might still have under-utilized people at your firm, especially junior lawyers or support staff. The answer, as we discussed in the last post, is not to lay them off. It’s to get them busy modernizing your law business so that it’s ready for the post-COVID world. So put these people in charge of the following projects (if your business hasn’t taken these steps already) and have them report their progress to you on a monthly basis:

  • Enable electronic billing and payment
  • Move all your documents and data to the cloud
  • Refresh your website content in light of the pandemic
  • Investigate technology for carrying out basic legal tasks
  • Revise your internal processes for greater efficiency
  • Assemble detailed client intelligence databases
  • Run the numbers to calculate client and practice profitability

Many of these items might have been sitting on your “I Probably Should Do That Someday” list, but you and your people were too busy to get around to it. Well, today is Someday. Just as is the case with flat-fee pricing, all the foregoing elements are not going to be competitive advantages in the next legal market — they’re going to be business as usual. You need to be 100% ready to roll out a modern, 21st-century law business when the pandemic finally ends and a different legal world emerges. You can’t put off starting that process until the all-clear is finally given — this is one curve you need to be ahead of.

The reality is, there are a lot of ups and downs ahead of us. Lockdowns will be relaxed, then reinstated when it becomes clear we ventured back outside too soon. Illness will sweep through your own family or workplace, if it hasn’t already, shunting everything else to one side. In this extremely volatile environment, significant political, economic or environmental incidents will generate impacts far beyond what would normally be the case. Everyone is on an emotional roller-coaster ride of unknown duration, and as you and I can both testify, that wears us all down sooner or later.

So my final thought is to remember that no matter how important our work might seem to us, it’s not life. “Work-life balance” was always an insidious term that invited us to view these two concepts as opposing sides of the same coin. But life is a multi-faceted cube, not a coin, and work is just one side. Take a deep breath and remember: Everyone is in the same boat. Nobody has all the answers, and we’re all making mistakes every day as we plow into utterly uncharted territory. And that’s okay.

We’re on a long road to somewhere brand new, and we can’t see the end of it — but I guarantee you, there is an end to it, and we will get there. Set out on that road with patience, generosity of spirit, plenty of forgiveness, and a desire to make things a little better at each turn. Before you know it, you’ll have a large group of followers around you. Because that’s how you lead people through a crisis.

Pandemic VII: Law firm essentials

So, what about law firms? What will the pandemic and its associated economic crisis do to private practitioners of law? Well, first we need to separate out the two law firm sectors: larger firms with mostly corporate and institutional clients, and smaller firms (including solos) with mostly individual and small-business clients.

Perhaps surprisingly to some, I’m not going to spend much time on large firms or the AmLaw 200. As a group, they have large full-time professional management teams, and they’re diversified enough that at least one or two of their revenue engines are still working even in this crisis. Most importantly, they have immense amounts of cushion: When the average partner at your firm takes home half a million a year, or twice that, or four times that, you don’t have existential concerns. You have profit-distribution issues, sure, and some challenges around shareholder expectations, but those are textbook examples of “nice problems to have.”

Maybe more to the point, there are plenty of people out there offering advice to this segment of the market and covering their challenges in detail, and I see no need to add to that. But smaller firms don’t get that level of attention (with some noteworthy exceptions), and speaking generally, their challenges are greater and more urgent. So I’ll focus the balance of my remarks on this sector, with occasional reference to larger firms insofar as it might be helpful.

The pattern of these posts so far has been to identify the existing fault lines in a given part of the legal economy and talk about how the pandemic has struck and caused irreparable damage along those fault lines. But the cracks in the law firm model is a subject I’ve been writing about here at Law21 for more than 10 years, and I don’t see much point in rehashing it now. Sometime next week, I’ll put together a collection of my posts advising how to build a better law firm model and post that for people to review if they like.

So the primary focus of this post will be: What can smaller law firms do, right now, to deal with the impact of this unprecedented global crisis? My advice is to focus on the absolute essentials, so what follows is going to be very stripped-down and basic. (Okay, it’s 3,000 words long, so it’s not that stripped down, but still.)

I’d suggest thinking of this challenge in terms of four concentric circles, moving from innermost to outermost, and dealing with each circle in turn — as you secure one, you can move out to the next one. If I could draw, I’d include an illustration of how the fourth circle bends back to support the previous three, but I have no such skills. so you’ll have to imagine it. Sorry.

First Circle: You. Nobody else’s welfare is more critical to address at the start of this process than you, the lawyer. Doesn’t matter if you’re a true solo, if you have a few partners and employees, or even if you’re in a mega-firm — you cannot serve clients or put out fires or do anything to help anyone else unless you have done what you can to solidify yourself. You, personally, are the cornerstone of you, professionally. Deal with yourself first.

It bears repeating: We are in a global pandemic. Millions of people worldwide are going to die from the COVID-19 virus in the next two years. The global economy is going to experience contractions and convulsions on a scale most of us have never seen. That’s reality, it’s horrific, and it intrudes on our consciousness overtly and covertly multiple times a day. It’s an ongoing trauma that distresses you and steals your peace of mind whether you notice it or not.

So even though your inbox is constantly pinging and people are calling or knocking at your door, even though your kids are at home and loudly protesting their online learning sessions — even though you feel like everybody needs a piece of you right now, call time out.

Take some foundational steps to secure your emotional, physical, and spiritual well-being. Get 30 minutes of exercise a day if permitted and possible, walking around your block or neighbourhood, ideally getting some sun and Vitamin D. Pray or meditate for 10 minutes once a day, morning or evening (or both, if you can). Avoid doomsurfing. Eat as well as you can; if you drink alcohol, cut back sharply. If you feel like crying, do it. If you have people nearby you can hug, do it, often.

This is not selfishness; this is solidifying the foundation of your personal and professional life, so that you have the capacity to do what else needs to be done. You’re a human being going through incredible stress — recognize, acknowledge, and accept that you will be buffeted and damaged by this storm. The strongest people are those who accept themselves as they are when they’re weakened and damaged, and then shore themselves up as needed.

Second Circle: Your Professional Dependents. I wish I could come up with a better term for this one, but my nomenclature skills have been among the first to desert me. I’m speaking here of the people whose livelihoods depend on or are in a substantial way affected by your law business. That would include employees like secretaries, law clerks, paralegals, receptionists, and associates; it could also include, in a more distant way, more independent players like junior partners or freelance researchers or the communications firm to whom you’ve outsourced your marketing.

Now, these people are not (in most cases) your children or blood relatives, and you’re not responsible for their lives. But they depend on the law business you run to support their own lives to a greater or lesser extent, and they’ve been worrying since the onset of this crisis whether you’re going to cut their pay, cut their hours, or cut them loose altogether. If you haven’t addressed them openly about this yet, today is not too late to do it.

You might not have any bad news at all, of course. The nature of your law business might be such that you’re swamped with client inquiries and billable work, and if so, great — your challenge here will be getting the productivity and performance you need from people who also are deeply stressed by the crisis and who might have family members or close friends in hospital. But even then, many clients will not be in a position to pay you in full or on time. And in all other cases, there simply won’t be as much work as you’ve had in the past.

Opinions will differ here, and the right call will always depend on your particular circumstances. But generally, I believe that you should do whatever you can to shelter these people from the storm and absorb at least some of its fury. Keep them on payroll as long as you can; if you must reduce their pay, cut it by less than what you expect your own earnings to suffer; if you absolutely must lay them off, help them access all available government subsidies for people in their situation. Look after them as best as you reasonably can.

Don’t go about this process by yourself and then announce your decisions to them — get them involved, in one-on-one conversations (you almost certainly can’t do it in person, but a video call is far preferable to a phone conversation here). Be honest and transparent about the situation, ask them to be equally open about their own needs and situations, and talk it all out. Help them determine the nature, timing, and length of any reductions you need to make. Give them agency in this process — they deserve it.

Equally importantly, if you do need to cut back or even cut out their contribution, check in on them regularly to the extent possible. Ask how they are, how their family is doing, do they have relatives who are ill or quarantined, is there anything they need that you can help them with? In many cases, these people will be more vulnerable than you are and they live closer to the edge. Make sure they know that if the edge gets too close, they can call on you.

Obviously there are retention and recruitment advantages to behaving in this manner — you’ll earn unquantifiable amounts of loyalty and positive word of mouth by being a great boss in this crisis.  But the reason you’re doing it is simply because that’s what good people do — what leaders do — in a crisis when others look to them and rely on them for guidance and assistance and strength.

Third Circle: Your Clients. I suppose that this is functionally the same as saying “Your Business,” because looking after one means looking after the other. But clients and your relationships with them are the heart and soul of your law business, and you should start there.

Right now is when you should be doubling down on your most important client relationships. Reach out to these clients (or if it’s a business or organization, the key contact(s) within the client) and ask, first of all, “How are you?” And mean it. And listen closely to the answer. This one action alone will set you apart from most people in the client’s professional life, and maybe quite a few on the personal side. (If you have numerous clients of roughly equal value, send these questions in an email and ask those who can or wish to reply.)

Then ask, “How can I help you? And I don’t just mean with legal problems — what’s really worrying you? What’s heaviest on your mind? Maybe I can find someone to help.” Or better again, depending on how the client has answered the previous question, say, “I think I can help you with that situation.” It’s more effective to offer specific assistance than ask about general needs.

I want to emphasize the part about “not just legal.” Most clients, if their lawyer offers to help, will assume “legal help” is meant, and they will probably imagine a very narrow range of activities and say no, I’m fine. But as access-to-justice studies have shown us, people often don’t know that a given problem has a legal angle and a legal solution. So ask, open-ended, what’s causing you anxiety or concern? And even if their worries have no legal angles, maybe you know someone who can help them anyway.

In a crisis like this, we remember the people who didn’t wait for us to call them — they reached out to us, they genuinely inquired after our welfare, they offered to do anything to help, and they were sincere. That’s how you further secure and deepen your client relationships — that’s platinum currency. Clients generally stay put in a crisis. But whether they stay afterwards depends on what firms do during it.

There are two other obvious benefits here. One is that it’s an opportunity to ask about which ongoing or upcoming legal matters can be put aside or adjusted in light of the crisis, and that will help you triage and prioritize your own to-do list, which you absolutely need to do. But the other, and more important one, is that it helps generate payable activity. And that brings us to the fourth circle.

Fourth Circle: Cash. I’ve left this category for last because logistically and chronologically, it’s the last item to be looked after — but in terms of importance, it might as well be first. You need to get money flowing into your firm, as soon as possible, with some degree of regularity or predictability. You might be in great emotional health and in the running for  “Boss of the Year” and the apple of your clients’ eye — but if your firm runs out of cash, none of that matters.

I want to be clear about just how difficult it might prove to be to get cash into your firm. The economy is in ruins. Real unemployment is certainly in double digits, with some estimates suggesting 20% or 30% in the second quarter. Nearly 10 million Americans filed for unemployment benefits in the space of two weeks. Governments are providing benefits to many laid-off workers, but that money is mostly going to food and rent. Few small businesses are essential and most have closed. There’s a lot of law firms out there representing restaurants and dry cleaners and landscape companies and the like, and these businesses are on life support.

The average law firm bills clients for work roughly within 30 days of performance, and it gets paid roughly an average of 90 days later. Any unpaid invoices for work done since the start of the year are very likely sitting at the bottom of the pile of bills on your clients’ kitchen tables, and will be for some time to come. That suggests there’s a four-to-six-month gap coming up in your cashflow, and few firms can endure that without significant damage, or worse.

So you should think about doing two things. One is to speed up the process by which you get paid. If you don’t have electronic payments or credit card payments or other online payment systems set up, well, a pandemic is really not a great time to do it. But you need to shorten the turnaround time and lessen the hassle of getting client money into your bank. Find an online payment provider that works with the legal profession to set you up. I’ve heard good things about LawPay, and I’m sure Clio would be happy to help. If you’re really stuck, call your nearest bar association or practice advisor and ask them to help.

The other is connected with those client conversations I mentioned. Near the end of those discussions, raise the matter of payments. You are running a business and you have every right and every necessity to broach the subject with clients, awkward as it might make you feel. But there are ways to make it easier. Here’s my suggestion.

Offer your clients a “crisis billing arrangement.” For any matters arising in any way out of the pandemic and recession, your firm will bill no hours — instead, the client will pay a special monthly “pandemic flat rate,” on the lower end of your billing scale, with a unique billing code that all timekeepers can use for these matters.

You can, if you wish, apply this rate to everything you do for every client, but you don’t need to. If you’re working on a pre-existing matter for the client, or on a matter separate and apart from the crisis, you can specify that the usual billing and rates apply — but everything else is done under the “emergency arrangement,” paid automatically online on the first of every month directly to your bank.

I suggest that you not try to set limits on the amount of work you’ll do under the pandemic flat rate — that could blunt its effectiveness and put a chill on the conversation. Instead, tell the client that some months will be busier and others will be lighter and they’ll even out over time — but if unexpectedly, the amount of work starts heavy and gets heavier than anticipated, you’ll call the client back and raise it and talk about adjusting the rate to reflect the extensive good work you’re doing. (And if the work starts light and gets lighter, call the client and reduce the amount unilaterally.)

There are two broad reasons to do this. One, of course, is that it gets cash in the door, every month, at a vastly accelerated rate — you have guaranteed income and you can plan out your own payments accordingly. It also makes timekeeping and billing much easier, especially with most lawyers working from home, where they tend to docket less frequently anyway. For all you know, both clients and lawyers might prefer this method and will keep it even after the crisis ends, in which case your cashflow situation steadies permanently.

And the other reason is that it strengthens the client relationship through honesty and openness — you treated the client like an adult who understands very well how difficult life is for everyone.  And when you set a lower-than-normal rate, it shows the client that you’re not out to make money off this crisis or bleed the client at a time when it’s also running short on cash (as everyone is) — you’re only looking to keep the wheels turning so that everyone can get through this in one piece.

= = = = = = = = = = =

This was a great many words to say a fairly straightforward thing: In a crisis, you learn very quickly what really matters. To my mind, what matters to your law business are:

  • you, the lawyer;
  • the people who depend on you;
  • the clients on whom you depend; and
  • the cash that keeps your business breathing.

Your bandwidth and your window of attention have probably gotten much smaller lately. I know mine have. So I want to urge you against undertaking massive renovations to your law firm business model at this time. My previous posts about the court system and the lawyer formation process both emphasized short-term triage activities before turning to big-picture issues. But complex legal systems have many stakeholders who can lend a hand. You have very few.

So focus on the essentials. Take care of yourself and those close to you. Stay in touch with your clients and do as much as you can for them. Ensure a steady flow of cash into your business so that it can live to serve another day. And at the end of each day, be at peace that you’ve done what you could as a lawyer, and be with your family and support network. We’re all in this together. And together is how we’ll all get out of it.

Pandemic VI: Lawyer formation re-engineered

As I noted in my previous post, the pandemic is accelerating and accentuating all the trends that were already going to bring the existing lawyer formation system to a grinding halt. Less than eight months ago, I wrote here at Law21 about how the lawyer development system is breaking down and how we could replace it with something better.

At the time, I thought that the system would break down because law firms would hire fewer and fewer new lawyers and would thus remove themselves from their longtime de facto role as “on-the-job lawyer trainers.” This would have knock-on effects up and down the new lawyer pipeline.

Legal regulators, I wrote, need to unify the disparate strands and fragmented shards of lawyer formation and assert control over the lawyer development process in their jurisdiction. Education, training, licensing, and ongoing competence assessment all need to be carried out under unified supervision and against a comprehensive, authoritative vision for creating competent, confident lawyers to serve clients and society.

That, as they say, was then. A process that I thought last August would unfold over the course of years is now happening in weeks. So I’d like to recommend that post for your review, and to now use it as a launching point for the following proposal for reinventing lawyer formation in the post-pandemic era, whenever that arrives.

To make this change possible, we have to stop thinking of lawyer formation in terms of the organizations we’ve allowed to handle different segments of lawyer development — law schools, bar admission entities, law firms — and start thinking in terms of, from the perspective of, the lawyers we are helping to form. We need to figure out what lawyers actually need, in terms of structured instruction and supervised experience, in their first 10 years in the legal community, and only then turn our minds to which sorts of entities are best positioned to provide it.

Right now, out there working on ways to rethink and re-engineer lawyer formation, are many very smart people with extensive experience in legal education. I fall into neither of those categories; nonetheless, I’d like to submit for your consideration this rough breakdown of the three elements that I believe lawyers need to acquire during their formative years.

1. Education in core legal principles. What are the foundational building blocks of law? Before a student learns the first thing about the rules of evidence or the standards of contributory negligence or what makes a will valid, they first need to know the essential elements of law and the benefits it offers to society. These include:

  • underlying principles of law (fairness, due process, precedent, the rule of law, etc.)
  • essential features of law (rights, obligations, remedies, solutions — recall the consumer legal hub)
  • key manifestations of law in society (procedures, guarantees, title, disputes and their resolution)

Law is not a trade, and law school is not a trade school. There is a genuine role for what we think of as “traditional legal education,” and this is it. But it does not involve textbooks and lectures and exams in “Contracts” or “Land Transactions” or “Tax” or any other “practice area” course. It involves, yes, “thinking like a lawyer,” but more importantly, understanding why we have law and why we have lawyers — the benefits both provide in terms of safeguarding and promoting social stability, inter-personal reliability, individual dignity, and collective responsibility.

Examples of the principles, features, and manifestations of law would be drawn from all the standard “practice areas” — not to “teach” those areas of law, but to illustrate points about precedents and obligations and guarantees and so on. This segment of the process would be best administered in person, a group of novices learning together under the guidance of experienced educators, in order to help with socialization of new lawyers and the building of their networks.

By the time a student finishes this segment (and demonstrates to their instructor’s satisfaction their command of it), a student would know the “why” and “how” of law; only then would they dive deeply into the specific “what.”

2. Knowledge of legal subject matter. While this might look like all those substantive “practice area” courses from law school, there are a couple of key differences.

One difference is that these courses would be learned mostly online, through recorded video instruction and the completion of various “modules” that could consists of dozens or even hundreds of units, depending on how much of a specialty a student wanted to develop. Assessment of a student’s learning would be conducted by expert practitioners in each area authorized by regulators to test students as soon as they wish to be certified as having completed some or all of the course. Completing and “passing” 20 modules, say, would give you a basic grounding; 40 would makes you moderately informed; 100 would make you a budding expert.

The second difference is that there would be no mandatory courses. I recognize this is controversial, and you might protest that there are some things “every lawyer should know.” In terms of professional identity and responsibility, I agree, and these are covered in the third section below. I also agree that there should still be “pre-requisite” courses for some subjects — for example, you would not enrol in “Mergers & Acquisitions” until you’ve first completed a minimum number of law “Business Law” modules.

But in terms of requiring every student to master an (increasingly arbitrary) array of legal subjects, I disagree. We need to stop forcing future lawyers to spend the first precious years of their lawyer formation learning about areas of the law they will never use. A highly specialized legal market needs equally specialized lawyers who learn continuously and fluidly throughout their careers.

Under this proposal, nothing would prevent a lawyer who, having completed and been certified in, say, employment law, from later changing their career plans and completing a course in patent law. The lawyer’s “classmates” at any given time would therefore encompass a broad range of novice learners and experienced practitioners,  producing a far more diverse, dynamic and collaborative learning environment. “Law school” in this system stops being a place where you spend the first three years of your career and never return again; it becomes a lifelong learning resource — what CLE should have been, but never was.

We should no longer use the legal education system to satisfy an antiquated vision of a profession filled with jacks-of-all-trades and Atticus Finches; instead, we should empower law students to build the types of legal careers they want to lead and serve the parts of society they want to serve in a rapidly changing world.

3. Skills and standards of a lawyer. This is the part of the lawyer development process that many veteran practitioners refer to as “the real world.” I draw no hierarchical distinctions regarding whether these subjects are superior to any others. But here is where you’ll find subjects such as:

  • professional identity
  • legal ethics
  • professional conduct
  • character and integrity
  • personal empathy
  • customer service
  • business fundamentals
  • workflow management
  • financial literacy
  • technology training
  • project management, and
  • cultural competence.

Through a combination of in-person and online education, learners would acquire mastery of these subjects and the practical realities of their application.  But more importantly, they would be given the chance to test these skills and this knowledge, either in three- to four-month work placement opportunities in the private and public sector, or in virtual classrooms and simulated law firms.

Does that last part sound too far-fetched? It’s already happening, right now. Check out the Practice Readiness Education Program provided by the Canadian Center for Professional Legal Education, which is now replacing the bar exam process in Alberta, Saskatchewan, Manitoba, and Nova Scotia. And check out the Law Practice Program already well-established in Ontario.

I’m confident that other Canadian regulators will soon convert their articling requirement to completion of the PREP, LPP, or similar programs. Other countries should study and adapt these innovative and timely new-lawyer-competence assessment methods. The template for modern, practical, supervised hands-on lawyer training is available for you right now here in Canada.

A couple of final points in this third category.

(a) This third category of learning can (and often should) take place contemporaneous with the second category. Our current lawyer formation system teaches students knowledge of a legal subject area, and then years later, exposes them to the practical implementation of it. That’s a needless disconnect born of provider fragmentation. Students should be encouraged to learn how to be a lawyer in practice at the same time as learning how to be a lawyer in theory. (Integrated courses that combine items in the second and third categories could be considered.)

(b) This third category is not exclusive to the private practice of law. “A lawyer” does not exclusively refer to people who serve multiple clients on a serial basis in the private sector. Corporate counsel, public-sector counsel, and public-interest counsel are all lawyers. This third category should provide both instruction and experience in all these different dimensions of being a lawyer (and especially in ethics and professional responsibility, which currently is taught 95% from the perspective of private practice). Among the many shortcomings of our current lawyer development system is that “private-practice lawyer” is the default setting. That needs to change.

These are my suggestions for rethinking, re-engineering, and reunifying the lawyer formation process. Next up in this series are my thoughts about what the pandemic is going to do to private law practices, and what a rescue mission and re-engineering project might look like in this highly vulnerable sector of the legal economy.

Pandemic V: Lawyer formation rescued

As was the case with the justice system breakdown I described in Posts 2 and 3, and further to the problems with lawyer formation I laid out in my previous post, I want to suggest two sets of responses to the crisis in lawyer development.

The first set, presented below, is designed to get our current system and the people who rely on it through these next couple of years. The second, presented in my subsequent post, is intended to outline a new and better system to replace the one that’s breaking down.

In the short term, here are seven suggestions for how we can help get law schools, regulators, and law firms through this lawyer formation crisis.

1. Drop the LSAT.

Law schools should stop using the LSAT as part of their applicant assessment system. Many people won’t be able to write the LSAT this year, and the conditions for those who do write it will be unequal; those two facts alone are reason enough to follow this approach. Law schools can still use undergraduate marks, work experience, and personal qualities to decide who to admit. But let’s be honest: The LSAT is an elitist artifact anyway. It tests only a small number of skills and attributes that lawyers need, and it has no correlation whatsoever with one’s future success as a lawyer.

2. Do online lectures properly.

As long as physical distancing lasts, schools should arrange for all lectures to be video-recorded and (along with lecture notes) uploaded, so that students can access them asynchronously rather than having everyone pile in to a Zoom session. This should be done at least semi-professionally, with good audio, lighting and framing. Each lecture should be 20-30 minutes maximum. The designated course professor need not deliver them all. We need to shift away from “remote teaching” to online learning.

3. Adapt student participation.

Create online message boards with questions for students to answer and discuss among themselves; active or high-value contribution to these discussions would improve a student’s final assessment. Increase the number of assignments for students to carry out, and encourage multimedia responses (video or podcast instead of or in addition to a written submission). Assign more work to groups, using online collaboration platforms (e.g., Google Docs); if isolation is lifted, these group projects can be converted to in-person.

4. Maintain Fail/Pass/Honours.

Let’s get real for a moment. Hardly anyone ever fails a law school course or fails to graduate, so we’re really talking about “Pass/Honours.” In practical terms, that is absolutely no different from “Consonant/Vowel.” I think most professors would agree that they could divide their students into “those who did the work and learned the concepts” and “those who really stood out as brighter, harder-working, and more effective than the others.” Why do we need finer distinctions? Law school is not Grade 3; we’re past the stage of incentivizing children to try hard and do their best. We’re developing professionals to serve the needs of others. Let’s keep a system that recognizes this reality.

5. Forget the bar exam.

This is simultaneously the easiest and hardest advice. Easiest, because the bar exam is little more than “an excellent barrier to entry …and a superb hazing ritual,” in the words of Joan Howarth; it “tests the ability to take tests, not the ability to practice law,” added Allen Mendenhall. It’s archaic, discriminatory, and a waste of time. But also hardest, because the profession just can’t quit the exam, partly out of habit, partly out of fear that law school didn’t prepare students to practice, and partly no doubt because of exam prep industry pressure. The pandemic has made sitting for the bar almost impossible; take this as a sign, and an opportunity.

6. Issue “progressive” law licences.

To mollify bar exam defenders, and as a step towards a better licensure system in future, all graduates who were unable to take the bar exam should be given conditional admissions to practice with “progressive” law licenses that allow the lawyer to practice but would place limitations on, say, the types of actionable legal advice that can be dispensed to individuals. Lawyers who hold progressive licences would be equivalent to “interns” who’ve graduated from medical school but haven’t yet achieved full “doctor” status. Passing a future bar exam (or a superior procedure; see the next post) would be sufficient to convert these “lawyer learner permits” to full law licences. (Also check out the Institute for the Advancement of the American Legal System’s thoughtful discussions of new lawyer licensing options and lawyer competence assessment.)

7. Incentivize new lawyer hiring.

Governments should encourage law firms to keep hiring new law graduates by making the salaries paid to these new lawyers entirely tax-deductible for as long as the crisis lasts. Large firms can go further and split the costs (and the tax benefits) of new lawyer hiring with corporate clients, where the new hires can spend half their time. Governments should also order suspension of repayments of all student loans for this cohort of graduates, and should issue partial loan forgiveness for graduates who enter public service or who move to smaller or rural locations to practise law.

These are seven short-term steps that all the participants in the lawyer development process can take right now and over the next 18-24 months to help us through this crisis. But these measures are by nature temporary, or at best transitional, as we start shifting towards a new lawyer formation regime.

Just as we’re buying time by keeping the crippled court system functioning until we can build better justice institutions and procedures, so too the foregoing measures will help keep the “lawyer pipeline” going through the emergency while we develop something better to replace it. That’s what I consider in the next post in this series, “Lawyer formation re-engineered.”