The CASE for standards of supervised practice in lawyer licensing

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Posted in: Competence, Licensing, New Lawyers, Regulation

Speaking to a US-based regulatory conference last month, I remarked on a key difference between the Canadian and American lawyer licensing systems: “In Canada, we decided that nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.”

This mostly refers to the “articling year,” a decades-old tradition in Canada that mirrors similar customs in most other countries that require a person to complete a term of supervised practice or apprenticeship before they are granted admission to the profession. (Canada has a few other supervised practice options, which we’ll talk about a little later.)

In the United States, one of the very few countries that don’t have a similar requirement, interest in supervised practice as a replacement for the bar exam spiked during the pandemic and led several states, including California, Florida, and Illinois, to temporarily grant bar admission to aspiring lawyers if they completed hundreds of hours of practice under the supervision of an experienced practitioner.

A few Americans would like to see supervised practice become a permanent alternative to the bar exam, and I’ve often heard US lawyer friends comment admiringly on our articling requirement. But the reality of articling is less admirable than it might appear from a distance. In theory, it makes sense for an experienced practitioner to oversee an aspiring lawyer’s learn-the-ropes performance of lawyer tasks, providing valuable experience and feedback to the trainee while ensuring the client is competently served. In practice, that’s not often how it works.

A supervised practice requirement for bar admission is terrific only if it’s done properly, fairly, and systematically. As I’ll describe below, articling in Canada is riddled with problems on all these counts. So I want not only to encourage countries that haven’t adopted supervised practice requirements (🇺🇸) to do so, but also to challenge Canada (and other countries) that do mandate this step to be more conscientious and vigorous about making sure it actually works.

Here are the most serious problems afflicting articling in Canada:

1. Unsafe and unfair: A survey in 2019 by three western provinces found that about a third of all articling students had experienced discrimination or harassment during their articling term, while another province’s survey in 2018 placed the total at more than a fifth; both these surveys likely under-report the extent of the problem. Moreover, systemic discrimination in law firm hiring means racialized students and internationally trained lawyers have a harder time accessing articling positions. The excuse of “cultural fit” has allowed hiring choices in articling to reinforce traditional barriers into the profession against women, minorities, and immigrants.

2. Absence of assessment: Standards of acceptable competence outcomes for an articling term in Canada are a very mixed bag. While each province provides lists of what a student is expected to learn, do, and experience during articling (see examples from Nova Scotia, Alberta, Ontario, and British Columbia), only some reference the Federation of Law Societies of Canada’s National Entry to Practice Competency Profile for Lawyers, while others simply state that the student should receive “practical experience and training” in these areas. More importantly, assessment amounts to little more than the supervisor’s prospective promise (or retrospective assurance) that everything on the lists will be or has been covered off.

3. Fewer opportunities: Articling positions generally are diminishing, leaving a growing number of bar applicants unable to fulfil this requirement and start their careers. Corporate clients have led market changes that reduced the demand for low-skilled lawyer labour: they have insourced basic legal work, re-directed that work to law companies and ALSPs, or fed it into the fast-growing maw of legal technology. Over the last couple of years especially, firms themselves have followed suit, reducing further the entry-level tasks available to novice lawyers. Ontario’s articling shortage prompted the approval of alternatives like an Integrated Practice Curriculum at two law schools and a Law Practice Program in two cities; British Columbia and Alberta are now examining new supervised practice options for similar reasons.

In some ways, articling is to Canada what the bar exam is to the United States — the traditional final stage in the licensing process, so rooted in the professional culture that its rampant flaws are ignored or excused on the grounds that “we’ve always done it this way” and “if I had to go through it, so does everyone else.” If we want to maintain our status as a self-governing profession that purports to apply robust, verifiable competence standards for admission to its ranks, then we need to do better than that.

Whether we’re Canadians talking about improving on articling or proposing superior methods of supervised practice — or whether we’re Americans looking to create a supervised-practice requirement of our own for bar admission — we need to establish a threshold standard for supervised practice, one that would satisfy skeptical outside observers that newly licensed lawyers demonstrably possess the entry-level knowledge, skills, and attributes of law practice.

I recommend that regulators and bar admission overseers create such a standard and integrate the following four elements into their lawyer licensing processes. And because people seem to like acronyms, I’ve arranged these elements to make my CASE that supervised practice standards should be:

Consistent: To ensure fairness, the supervised practice experience should be as similar for all licensure candidates as can be practically achieved. There is unacceptably wide variance in apprenticeships today: One articling student might benefit from a highly positive work environment with mentoring and support, while another might wind up in a barely functional law office, purely through the luck of the draw (or non-relevant hiring factors). This variance is a direct consequence of outsourcing a key element of the regulatory role to the private sector; either much tighter controls and parameters must be placed and enforced on law firm apprenticeships, or the whole process must be centralized under direct regulatory oversight. Which leads to:

Accessible: A supervised practice system that is unavailable to some licensure candidates is unfair; a system in which the inability to obtain a supervised practice opportunity is directly correlated to one’s race, ethnicity, or country of origin is unfit for the profession. There must be systematic assurance that everyone who wishes to become a lawyer can meet the mandated requirement of supervised practice. Moreover, affordability must be considered. Today in Canada, some supervised practice options pay much better than others, while others are unpaid altogether. This wide variance in the financial cost of apprenticeship is another barrier to entry into the profession.

Safe: We can’t continue to send young people into workplaces where they will be subjected to harassment, discrimination, or abuse, and simply accept it as “part of the experience.” It’s especially egregious that we tolerate this treatment of novice lawyers with no power or leverage, unfamiliar with legal culture and dependent upon their supervisors’ approval to complete their training and start their careers. If regulators are going to require vulnerable bar applicants to enter into legal workplaces, they must regulate and closely monitor those workplaces to guarantee they are safe, secure, fair, and free from exploitation. It’s no excuse to say ensuring that kind of system would be “too expensive.” If we can’t afford to provide safe apprenticeships, then the requirement should be abandoned altogether.

Effective: At the end of the day, even if all these other flaws can be addressed, no supervised practice system should be considered valid unless it demonstrably develops in its participants the competencies required for bar admission. It’s not enough to require principals to sign a document attesting that the student has “successfully completed” articles — such assurances have been rote for decades. Most regulators specify the competencies that articling must inculcate, but there is little or no independent assessment or determination of competence outcomes during or after articling. The absence of an evaluation framework converts what ought to be a thoroughly vetted development process into a mere rite of passage.

The problems I’ve listed here are serious; but they are not insoluble. With time, effort, resources, and creativity, not only can we overcome these challenges, we can institute a powerful, effective, and resilient system of professional formation.

  • Consistency and Accessibility can be improved by creating a centralized and closely monitored supervised practice environment — perhaps a “teaching law firm” where licensing applicants can provide legal services to underserved segments of the population while receiving experienced oversight, active feedback, and professional supervision from trained lawyers. Licensure applicants may freely choose to obtain their supervised practice qualification elsewhere, but an entity like this, open to all comers, would guarantee that nobody who wants to become a lawyer is denied the chance to meet this requirement.
  • Safety can be improved by requiring those lawyers who wish to act as the principal supervisors of apprentices to successfully apply for the role. Criteria for successful application could include previous experience in a supervisory or mentoring role, contact information for a former supervisee, and completion of an online training course (I made these recommendations to the Law Society of Alberta in a report last year). An equally valid approach would involve proactive management-based regulation, already in place or in development in several states and provinces.
  • Effectiveness can be improved in several ways, not least by reviewing and adapting the Solicitors Regulation Authority‘s best-in-class Threshold Standard and Qualifying Work Experience Record Template. The template in particular points in the right direction, because it empowers the licensure candidate to record those daily and weekly activities that advance the candidate towards achieving the specified levels of acceptable competence. Make this record accessible in real time to both the candidate’s supervisor and, importantly, the regulator, and you move closer to effectively measuring the candidate’s acquisition of entry-level competence.

Reforming a system of supervised practice, or creating a new system from scratch, is obviously a daunting prospect. Opponents of the reform (or creation) of a supervised practice requirement would object to the cost and complexity of the effort.

But in a profession that grants what is effectively a universal and permanent license upon admission — revocable only upon amply demonstrated proof of multiple serious transgressions — lawyer licensure is the single most important moment in the regulatory function. Everything hinges on the standards (if any) that we choose to set and enforce up until, and at, this moment.

I think there’s tremendous value in the proposition that “nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.” But if we’re not willing to back up that sentiment with action, then we have no business telling ourselves or others that we have a legitimate lawyer licensing system — and we shouldn’t force every new cohort of lawyers to pay the price of our self-deception.

The legal sandbox tipping point

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Posted in: Access, Innovation, Technology

You’re familiar with regulatory sandboxes in law, right? If so, feel free to skip down a few paragraphs. If not, here’s how I described them in a recent podcast:

A regulatory sandbox is essentially a safe space for innovation. Think of it as a closely monitored laboratory where experiments can be carried out — except these experiments are new types of services that are prohibited by current regulations, but that look like they could be beneficial to the public.

The regulator wants to give these experimental services a try — but it doesn’t want to immediately authorize a service that doesn’t meet the established criteria for authorization, sight unseen. So it creates a “sandbox” where the service can be tried out under close supervision, to see whether the benefits it provides outweigh the risks or harms it creates.

I’ve written about legal regulation sandboxes recently, and I’m far from the only one. Read Margaret Hagan & Jorge Gabriel Jimenez, David Curle, Jayne Reardon, Monica Goyal, Yves Faguy, Amy Salyzyn, and the Center on the Legal Profession at Harvard Law School. Regulatory sandboxes are an increasingly talked-about topic in the legal sector, but at the moment, only two North American jurisdictions have actually launched one: Utah, which is off to a flying start, and British Columbia, which has also received significant interest. (In this, as in other areas of legal innovation, England & Wales are already well ahead.)

But that could be about to change. On April 13, the Law Society of Ontario’s Technology Task Force released a report calling for the establishment of a Regulatory Sandbox for Innovative Technological Legal Services (ITLS) for a five-year pilot program. The report includes a motion for approval to be brought before the law society’s governors later this month. British Columbia’s regulatory sandbox deservedly gets the credit for leading the way in Canada; but a sandbox in Ontario — home to more than one-third of this country’s lawyers — would have an even more significant impact.

Ontario’s sandbox would be open to “any person or entity that is prevented by current regulations from operating an innovative technological legal services tool or program.” In general, the trial period would be about two years (though I’d imagine entities that rapidly deliver clear benefits with little evidence of risk or harm could be approved more quickly). At the end of this trial period, the entity may be approved, with or without conditions, to continue operating freely in the open market, or the law society would amend its by-laws to allow for this exception to the rules, or it would be rejected.

Note that “innovative technology” is a required element — the sandbox is not for, say, a real estate law clerk who wants to provide legal advice over the phone about selling your house. But that’s not the barrier it might appear to be, since Ontario also licenses and regulates independent paralegals, so there’s already a framework in place for “a person, but not a lawyer” legal service options.

And Ontario is an ideal place to host a tech-based innovation sandbox, precisely because Toronto in particular is the headquarters for a large and rapidly accelerating Canadian legal technology industry. Legal tech folks have been saying for years that it’s immensely difficult to attract the kind of investment capital needed to build and scale accessible legal solutions without the confidence that’s created by regulatory authorization. A legal tech sandbox would be the first step towards making that happen in Ontario.

Above all, one key theme consistently surfaces throughout the Task Force’s report: Legal technology is accelerating fast and changing the legal market, and this is the regulator’s best (and maybe only) opportunity to play a role in its regulation.

“As with other sectors and industries, the proliferation of new market entrants and innovative technologies will continue to transform markets and gain users, with or without the regulator’s involvement. Inertia on the law society’s part risks allowing ITLS providers to proliferate in Ontario outside of an effective regulatory scheme. … The technologies will continue to develop, but the law society may lose the opportunity to have an influence if it does not act quickly.”

Now, what’s interesting and coincidental about this development is that, while Canada’s largest jurisdiction considers a legal technology sandbox, the United States’s largest jurisdiction is doing the same. Four days before Ontario released its report, the State Bar of California’s Closing the Justice Gap Working Group held its most recent meeting, with an agenda that considered recommendations on the structure, governance, scope, application process, and criteria for a regulatory sandbox in that state.

The California working group, as you probably know, has been assigned to study innovative ways in which the legal market could be reconfigured to expand access to justice for Californians. Chief among its mandates is to explore whether and how a regulatory sandbox would operate in the state. As I wrote back in the summer of 2018, significant regulatory change to the legal sector in California would be a seismic event, one that would almost certainly trigger rolling changes across the United States for years to come.

I’m not privy to the Task Force’s discussions, of course; but the supporting materials for the April 9 meeting make for interesting reading. The report of the Scope Subcommittee, for instance, reveals that there was some discussion about restricting the sandbox to “firms that offered services to the unserved and underserved,” which the subcommittee defines as including “members of the middle class and small businesses.” This raises more than one red flag for me.

Set aside for a moment the problem of trying to screen out sandbox applicants according to who will buy their products and services (which strikes me as highly impractical in a free market), as well as the flagrance of the effort to restrict scope so as not to threaten the interests of lawyers and to put up roadblocks against the Big 4. The real problem here is singling out only “the middle class and small businesses” as unserved and underserved, which hides from the reality that everyone is unserved or underserved by the current legal system, and everyone deserves a better choice of remedies than what’s now on offer.

Nevertheless, the inarguably good news is that the Closing the Justice Gap Working Group is making real progress. Observers of the process with whom I’ve spoken appear optimistic that although the wheels of this process are grinding slow, they are grinding in a good direction. I don’t pretend that decision-makers in California are remotely swayed by what happens in Canada, but the fact that their northern neighbours in BC have approved a sandbox, and that Ontario might follow suit, could have at least some normalizing impact.

But in addition to Utah’s trailblazing effort, California and Ontario should also seriously reflect on the fact that Arizona blew right past the “sandbox” concept and opened its legal sector to all types of providers. Arizona eliminated its ethics rules barring “non-lawyers” from having an economic interest in law firms or participating in fee-sharing, thereby demonstrating what real reform of legal services regulation looks like (again, following the lead of England & Wales). Thanks to Arizona, sandboxes can no longer be viewed as radical departures from the norm — they’re now the safe, slow, middle way, the unobjectionable road to reform.

And that brings me to my final point: a friendly warning to any lawyers in legal governance in Ontario and California who might be tempted to derail this process for their own purposes. Not only would that derailment remove from the regulator any practical means of influencing new legal services providers, it would also render obvious to everyone the starkly protectionist agenda of the profession’s lawyer governors. And that, inevitably, would accelerate calls for fundamental changes to lawyer self-regulation.

The tipping point of regulatory reform in the law is drawing near. The legal profession should be throwing its considerable weight behind reaching this point sooner, in order to truly and fully advance the public interest — and thereby prove itself worthy to continue governing not only the legal market, but also its own affairs.

Radical roads to reform lawyer formation

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Posted in: Competence, Licensing

On April 27, I’ll be delivering the morning keynote address to The Future is Now: Legal Services, the annual conference of the Illinois Supreme Court Commission on Professionalism. The topic of my presentation will be “Reinventing Professional Development for Lawyers of the Future,” and if that’s of interest to you, I’d encourage you to check out the full conference agenda (featuring superstar presenters like Kim Bennett and Brian Cuban) and register for the event today.

For my contribution to the conference materials, I prepared a paper titled “Towards A New and Better Model For Lawyer Formation and Ongoing Competence.” In case you’re interested, I’ve reproduced a modified excerpt below.

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What do I mean when I talk about “lawyer formation?” I think that term can best be understood as the process by which a person becomes a competent, confident, and independent lawyer:

  • Competent: The lawyer has established to the satisfaction of the relevant licensing authority that they possess the minimum capacities and characteristics necessary for licensure.
  • Confident: The lawyer has acquired enough professional experience and received sufficient guidance and validation to attain emotional self-assurance and trust in their own abilities.
  • Independent: The lawyer can serve clients, manage tasks, fulfil professional duties, and regulate themselves without requiring supervision or oversight by more experienced practitioners.

This formation process begins no later than the first day of formal legal education (although it can start much earlier, even before a person applies to take the LSAT), and it ends when a licensed lawyer meets all three of the foregoing conditions (an occasion that will arrive at different times for different people).

At a minimum, lawyer formation takes three to four years — but for most of us, the process lasts significantly longer, sometimes a decade or more. That obviously means our achievement of “competent lawyer” status won’t occur until years after we first obtained our license to practice — long after a regulatory authority informed us and the world that we were fully licensed to deliver every type of legal service to anyone who cared to hire us.

Lawyer licensing is out of step with lawyer competence, and the lawyer formation process is the reason why. In most jurisdictions today, that process fails to properly and efficiently ensure competence, confidence, and independence among the lawyers it certifies. It is fragmented, repetitive, and focused primarily on the interests of the entities (law schools, bar examiners, regulators) that administer each step, rather than on the lawyer it is forming and the clients that lawyer will someday serve.

What we need is a new lawyer development model that is unified, strategically designed, and focused on the needs and interests of lawyers and clients. But we can’t achieve this goal by incremental steps, not when so many longstanding and powerful institutions benefit from the status quo, and especially not in the Pandemic Era, when half-measures accomplish very little. We need to think bigger, challenge more fundamentally, and be ready to embrace entirely new approaches to this issue.

I’d like to recommend three actions that would begin to truly overhaul the lawyer licensing and development process. They would be disruptive. They would cost a lot of money and require a lot of effort. But I believe they’re the kind of measures we’ll need if we want to make real progress towards a healthier, more capable, and more effective legal profession.

1. Design a licensing assessment system that makes a law degree optional. Create a robust competence framework for new lawyer licensing, and assess applicants’ ability to satisfy its requirements regardless of whether the applicant has completed a law degree. Follow the lead of the Solicitors Regulation Authority (SRA) in England & Wales, which in September 2021 will make the Solicitors Qualification Examination the sole “legal knowledge” criterion for bar admission — a law degree will not be necessary. The SRA is concerned only with whether an applicant has acquired the skills and knowledge to pass the exam; it is not especially concerned with where or how the applicant acquired those attributes.

North American regulators should develop a multi-dimensional competence framework for law licensure that encompasses:

  • legal reasoning and knowledge,
  • legal ethics and professional identity,
  • legal business skills and client service, and
  • empathy and emotional resilience.

Regulators should then assess aspiring lawyers against this framework, regardless of whether or to what extent applicants have completed law school. Regulators should also encourage the growth of non-school entities that can emerge to give aspiring lawyers the knowledge, skills, and training they need to satisfy the competence framework and assessment system.

Under our current licensing system, the law degree acts as a proxy for a set of learning experiences that are presumed to advance the student towards competence. Rather than forcing would-be lawyers to invest three years and hundreds of thousands of dollars to acquire this proxy certification, regulators should decide what a new lawyer should actually know and know how to do, and design an assessment process that allows bar applicants to prepare themselves to pass it however they wish.

2. Require supervised practice experience for licensing. No jurisdiction in the United States requires aspiring lawyers to gain supervised practice experience before they receive their law license. In this regard, the US stands almost entirely alone in the world. Articling students in Canada, trainee solicitors in England, and rechtsreferendare in Germany are examples of apprenticed lawyers-in-training who spend one to two years in a legal work environment applying the knowledge and principles they learned in law school, under the supervision of experienced practitioners. American legal regulators should follow suit.

Even if a mandatory period of supervised post-graduate training in a legal workplace is not adopted by American regulators, there are other ways to ensure a significant degree of exposure to practice realities. States could require that a law student complete a specified amount of supervised clinical education in law school, as was recently recommended by the Institute for the Advancement of the American Legal System (IAALS)’s “Building a Better Bar” report.

Alternatively, regulators could require that licensing applicants successfully complete a virtual “simulated law firm” program, where would-be lawyers handle fictitious files, connect with clients and witnesses portrayed by actors, and learn the ropes of law practice in a training environment with oversight and mentoring from practice advisors. Simulated law firms are currently part of the bar admission program in five Canadian provinces. They do not substitute for the actual experience of working in a legal services environment, but they are preferable to the absence of any kind of experience at all.

3. Mandate comprehensive CPD for lawyers in their first five years. One consistent shortfall in lawyer development across all jurisdictions is that new lawyers are credentialed and licensed too early. Most first-year lawyers are unprepared to carry out the tasks that clients and employers require of them, poorly trained to handle the basics of business management and client relations, and unready to handle the intense emotional disruption of the shift from academic to working life on their own.

Regulators therefore should continue the training and education of lawyers following their call to the Bar. They should create a comprehensive professional development program designed to guide the growth of the novice lawyer throughout their first five years in the law. This program could provide:

  • asynchronous learning through online videos and interactive materials,
  • mandatory in-person workshops and conferences for junior practitioners,
  • access to toolkits filled with resources for running a legal business,
  • mentoring opportunities with multiple senior lawyers in their jurisdiction, and
  • an anonymous Help Line that can be called any time day or night for assistance, support, or counselling.

A program like this would not be cheap to develop and deploy; but it would be much less costly than losing thousands of lawyers to discouragement and depression every year, not to mention reducing the professional insurance costs of under-developed lawyers mishandling their own affairs and those of their clients. And, along with the other two actions described above, it would mark a new beginning in how the legal profession regards lawyer formation and would accelerate the development of annual new cohorts of strong, proficient, and confident lawyers.

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The first step towards solving a problem is confronting head-on that it’s real and it’s serious. I don’t think we’ve arrived at that point yet when it comes to our lawyer formation process — there’s still too much poking around the edges or pinning all the blame on individual stakeholders (law schools, bar examiners, etc). But every day we postpone true recognition of our troubles, the longer it will take us to come up with solutions equal to the challenge.

The real issue is not that these three foregoing suggestions are too radical, but that they might not be radical enough. Only when we come to accept the need to fundamentally change how we approach the critical first decade of a lawyer’s career will these solutions seem equal to the monumental task at hand.

Frugal innovation in lawyer formation

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Posted in: Law School, Lawyer Formation, New Lawyers

More than a decade ago, in a post that captured the imagination of hardly anyone, I wrote about the need for “frugal innovation” in the legal services sector. Chief among the problems with the legal market, I said, is lawyers’ insistence on offering ever-more-elaborate services to ever-fewer people at ever-higher prices, ignoring the growing population with straightforward legal needs but little time or money to address them. Frugal legal innovators, I wrote,

will figure out the resource restrictions under which most people labour and will modify their products, services and delivery systems accordingly. They will relentlessly simplify and de-accessorize legal offerings, constantly asking themselves: Can we make this easier? Are there steps we could remove, features we could do without, elements that add cost without adding equivalent value? 

I trust this book is no longer than it needs to be.

Ten years on, I’m still waiting for the legal profession to recognize and meet this opportunity, although I’m encouraged by the success of consumer innovations like UpSolve and Hello Divorce.

But what I want to do in this post is apply the same reasoning to the lawyer formation process. What would frugal legal education and bar admission look like? What if we had only a very limited amount of time and money with which to train and licence new lawyers — how would we do it?

Let’s start by identifying the problem to be solved. Whatever its other merits and demerits, there are two things we can confidently say about lawyer formation in North America, in its current form:

1. It is too long. Hardly anyone believes that three full years of law school are necessary to provide foundational knowledge for the lawyer licensing journey. Most Canadian jurisdictions require an additional one-year articling term before admission, but that period of time is arbitrary: pandemic-shortened articling terms were deemed acceptable last year, and an alternative pathway in one province lasts just eight months.

To be clear, I believe new lawyers need much better and more detailed preparation for their careers than we’re giving them; but we’re using the current allotted amount of time poorly. We don’t know how long it really takes to fully develop a lawyer, because we’ve never purposefully designed a unified, end-to-end lawyer formation system.

2. It is too expensive. The average US lawyer starts their career $145,000 in debt. For the average Canadian lawyer, the figure is at least $71,000. Licensing fees add to this burden. But the cost of lawyer formation is driven less by features intrinsic to professional development, and more by the business models of the institutions that oversee and administer education and licensure. Lawyer formation doesn’t require labs and chemicals and machine shops; but you wouldn’t know that from its price tag.

Most people need significant socio-economic advantages even to contemplate the possibility of a legal career and devote several years to its pursuit. If you are not independently wealthy, heavy debt will drive you into higher-paying jobs with intense billing pressures or force you to take on work outside your expertise, ultimately to your and your clients’ detriment. The barriers scattered throughout lawyer licensure have produced a legal profession that is disproportionately white. And I need hardly add that the foregoing system will not produce affordable legal services.

How can we fix this? One way forward would be to “frugalize” the lawyer development system. What if we placed strict time and budget limits on the process of developing lawyers? What if we maintained (or ideally, raised) our thresholds for qualification as a lawyer, but radically downsized the time and cost required?

Assume that someone wishes to become a lawyer, but has, say, only 18 months and $18,000 to do it. Under our current system, that’s simply not possible. So let’s come up with a system in which it might be. Here are a few ideas to get us started.

● Move law school online, period. Subtract from a legal education the institutional overhead, room, board, and travel costs of attending a university in person. Subtract the time inflation caused by adherence to the law school’s semestered teaching timetable and its insistence on one-to-many, physically proximate knowledge transfer. The result would be an at-your-own-pace online law degree (of which, thanks to the pandemic, we’ve already seen proof of concept), faster and radically less expensive than the current version.

● In the alternative, individual legal academics and practicing lawyers could sell standalone courses approved by regulatory authorities, accessible online 24/7 with built-in knowledge assessments, on a core of mandatory subjects plus many others. Students could assemble their own qualifying law degree from multiple providers, learning as their schedule allows from their chosen experts in their preferred areas. Let’s stop thinking of law school as “a place you go to” and start thinking of it as “a developmental experience.”

● Our current system makes students spend three years in a classroom before even glimpsing the life of a lawyer. Lawyer education and experience could instead be administered concurrently, not consecutively, saving time while enhancing learning. The online courses described above could be interspersed with asynchronous skills and training modules and simulated virtual practices relevant to each course subject — here is an outstanding example. Or combine this idea with the next one:

● During or after completion of this online trifecta, we would find ways for aspiring lawyers to swiftly and affordably gain in-person lawyer experience. Regulators could require practicing lawyers to offer unpaid four-month internships to duly-registered law students as a requirement of continued licensure. Or they could coordinate similar opportunities with legal aid or public interest organizations in the student’s home town or nearest city. The goal is to help students learn the law and experience the law simultaneously.

● A purely online experience would, however, fail to provide the socialization element of lawyer development, whereby aspiring practitioners build friendships and networks by learning and working together. These elements have real value, so the frugal lawyer development process would require and help enable regular in-person (once the pandemic allows) meet-ups in larger communities, or Zoom sessions among more geographically dispersed students, or better solutions waiting to be invented. Distance legal education has a long history.

This is just the barest outline of what a frugal lawyer development system might look like — obviously it has gaps and flaws. But while some of them can be filled and fixed, others don’t need to be. Frugality, as I argued back in 2010, is not about doing the same things you did before, only more cheaply. It’s about re-envisioning what you’re trying to achieve and and re-engineering how you’re going to achieve it.

There’s a growing consensus that lawyer licensing requires radical reconsideration. So which elements of lawyer licensure add cost without adding equivalent value? Cavernous lecture halls in limestone buildings? Qualifying credentials burnished by a coat of arms and a football team? Hazing rituals disguised as entry examinations? You could probably assemble a pretty lengthy list just based on your own certification experience. Undertaking this effort collectively, as a profession, could lead to extraordinary advances in our theory and practice of bar admission.

The pandemic has already demonstrated that we can educate, train, and license lawyers differently than we did before. This is a golden opportunity to convert that temporary experience into a permanently better one.

Lawyer competence in three dimensions

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Posted in: Competence, New Lawyers

Suppose that a person has obtained a law degree from a recognized and accredited law school. Suppose further that this person has successfully completed the bar admission process in their jurisdiction and has been admitted to practice by the relevant authority. Are you satisfied, all other things being equal, that this lawyer is competent to practise law? I’d imagine you are.

Now, let’s start making other things less equal — but more realistic.

Let’s say this lawyer has been hired by a very small law firm where the staff consists of a part-time administrator and a legal secretary, subscriptions to major research databases have lapsed, and there is no centralized system for case management or deadline reminders. The lawyer is quickly buried under extensive drafting and research work on short timelines by impatient partners whose feedback is rarely constructive.

Let’s say further that this lawyer owes more than $150,000 in student loans, must commute (in non-pandemic times) 45 minutes each way to the office every day, has had to assume responsibility for a chronically ill parent who requires frequent trips to the hospital, and is increasingly dependent on painkillers to relieve crippling headaches and backaches at the end of each day.

Do you still think this lawyer is competent? You might say that technically, yes they are — the knowledge and skills they possessed upon their call to the Bar are all still there. But here’s a different question: Would you feel confident about hiring this lawyer to solve your problems or carry out your important tasks? Would you be comfortable — given their circumstances — that the lawyer could effectively apply their knowledge and skills to get the job done cleanly and correctly?

You might be less sure. I know I would be. And that’s why I think we need to start re-conceptualizing what we mean by “lawyer competence.”

I spent much of last year researching and writing a report on lawyer licensing and competence for the Law Society of Alberta. One of the things that struck me during that process was that we define lawyer competence solely in intellectual terms — as the possession of minimum levels of knowledge and skill sufficient to satisfy regulatory requirements.

Possessing that knowledge and skill is obviously important — but it’s also incomplete, because it fails to appreciate that what matters to the client and to the public is not what the lawyer knows, but what the lawyer actually does with their knowledge.

The public is not protected by a lawyer who merely possesses knowledge and skill in a passive, static sense; the public is protected by a lawyer who applies that knowledge and skill correctly and effectively in the real world. The first understanding of competence is technical; the second is practical. I think the second one is better. Lawyer “competence” concerns clients much less than does lawyer “performance.”

I need to be careful here, because when I first discussed these ideas on Twitter, some people thought “performance” referred to the outcomes lawyers obtained for their clients or the experience they delivered. Client outcomes and experiences are super-important, but that’s not what I mean here by “performance” — I mean, can the lawyer actually deliver and implement the knowledge and skills they possess to solve client problems? Can they carry out the work? Can they perform it? That’s where the rubber hits the road — lawyer qualifications meet the public interest at the point of implementation and execution.

If a lawyer possesses what we consider the complete toolkit of competence — all the required knowledge and skills — but is unable to use those tools effectively because of various circumstances, is that lawyer competent to practise law? Our current regulatory model says yes. Clients who are inadequately served by lawyers who cannot apply their knowledge and skills would say no.

Let’s go back to our unhappy hypothetical lawyer at the start of this post. They’re grinding every day in a sketchy workplace with few quality controls or professional standards, and they’re afflicted at home with financial, family, and addiction issues. It doesn’t matter whether this lawyer got a perfect score on their bar exam — they are not in a position to apply their competence qualifications effectively, and that will ultimately be to the detriment of themselves, their clients, and the public in general.

I think regulators should strive to ensure an ongoing level of lawyer competence that encompasses not just the possession of baseline legal knowledge and skills, but also two additional factors that crucially affect the lawyer’s ability to apply their competence: the lawyer’s workplace environment, and the lawyer’s personal well-being. Regulators obviously cannot control these other two factors in lawyers’ lives. But they can take steps to strengthen and reinforce them.

● Workplace environment. Does the lawyer’s workplace help to promote, or at the very least support, their ability to apply their knowledge and skills to client matters? Is the lawyer given adequate technological and staff resources? Does the workplace maintain systems and standards in client intake, matter management, client communication, conflicts checking, and trust accounting? How sound is the firm’s “ethical infrastructure,” its systems and culture of professional conduct? The degree to which these questions have positive answers will affect the ability of lawyers within this workplace to provide competent service to clients.

How can regulators oversee the workplace environments of the lawyers whose conduct they govern? Jurisdictions such as Australia and England & Wales have provided us with one good answer: entity regulation, whereby the individual lawyer is not the sole focus of regulatory oversight. An entity that provides legal services to the public should feature structural standards to ensure and enable the effective delivery of those services. In essence, you regulate not just lawyer competence, but also law firm competence.

● Personal well-being. Nobody pretends that practising law is a stress-free career. But there’s a difference between doing hard work for high stakes (the lot of every lawyer) and suffering from debilitating levels of pressure and anxiety. The latter description fits too many lawyers today: deep in debt, either trying to keep a practice afloat in a pandemic or constantly in fear of being laid off or “de-equitized,” unable to get or remain healthy, and so on. The results, as we already know, can include burnout, depression, addiction, and suicide.

How can regulators improve the well-being of the lawyers they regulate? “The Path To Lawyer Well-Being: Practical Recommendations for Positive Change,” the under-appreciated 2017 report of the National Task Force on Lawyer Well-Being, delivers on its title with 44 recommendations (and 88 tips in a separate mini-toolkit) to improve lawyers’ mental, emotional, and physical health. Regulators could implement the four recommendations targeted to them and strongly encourage all other stakeholders to do the same for theirs. They could make well-being not merely one component of competence, as many regulators are now doing, but consider well-being a critical catalyst without which a lawyer’s knowledge and skills cannot be effectively applied.

To be competent means that you can do something. Lawyer competence is functional, not abstract. It has three dimensions: knowledge and skills, workplace environment, and personal well-being. Regulators should start thinking about how they can ensure not just that lawyers possess the knowledge dimension of competence, but also that their personal and workplace circumstances allow them to effectively deploy that knowledge in service to clients. That’s the next step in the ongoing effort to continually enhance the competence of lawyers.

Heading in a new direction

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Posted in: Law21

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

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Posted in: Governance, Law School, New Lawyers

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

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Posted in: Culture, Leadership, Management, Talent

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.

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.

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

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Posted in: Leadership

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

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Posted in: Law21

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.