Pandemic VI: Lawyer formation re-engineered

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A couple of final points in this third category.

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

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

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

Pandemic V: Lawyer formation rescued

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

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

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

1. Drop the LSAT.

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

2. Do online lectures properly.

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

3. Adapt student participation.

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

4. Maintain Fail/Pass/Honours.

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

5. Forget the bar exam.

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

6. Issue “progressive” law licences.

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

7. Incentivize new lawyer hiring.

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

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

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

Pandemic IV: Lawyer formation disrupted

If you’ve spent the last few weeks focused on what’s happening in law schools, you might think the pandemic has triggered a crisis in legal education. If you’ve spent that time instead focused on bar exams and articling, you might think the crisis is actually occurring in bar admission and lawyer certification. And if you’ve been focused on law firms’ early personnel and recruitment decisions, you might instead think we’re heading into a crisis in lawyer hiring and employment.

In fact, this is all one crisis in one system — lawyer formation — manifesting itself in different locations. The sooner we accept that fact, the sooner we can begin the process of both organizing triage to get us through the short-term hardships assailing us, and drawing up blueprints to unify the shattered fragments of lawyer formation and create an effective and legitimate system for developing new lawyers.

Here’s a brief survey of the eruptions taking place across this landscape.

Every law school in North America has had to close its physical doors because of the pandemic’s physical distancing consequences. As is the case with courts, legal education revolves around the school building to which everyone has to come, the professor in whose presence they must gather, and the legacy paper-based knowledge centre anchoring the whole institution. And as with the courts, the transition from real world to virtual world has been chaotic and jarring.

● Also like judges, many law professors are now having to learn video-conferencing on the fly, in order to convert their lectures to an online format. Most are doing their best, but the effect is still something like televising a radio play. Teaching a “digitally native” class, one that was designed from the start to be online, is a different beast than delivering an in-person lecture to a camera and scattering the participants to the four winds.

● Law schools in the US, after an initial period of struggle and a series of debates within faculties, are also (mostly) coming around to accepting that their grading systems will have to change to Pass/Fail during this crisis. (A US school-by-school breakdown can be found here.) For the most part, Canadian law schools are doing the same.

● In the United States, some jurisdictions have postponed their bar exams, while others aren’t sure or haven’t yet. (This situation changes daily, so these links are probably already out of date.) Since new graduates who can’t take the bar can’t be admitted to practice, the focus has now turned to emergency diploma privilege for 2020 grads, or to skip the bar exam this year. In Canada, Ontario became the first province to cancel its lawyer licensing exams.

● Speaking of my home, one Canadian jurisdiction has already decided to shorten the articling period from 12 to 8 months to allow articling students to be admitted to practice. Saskatchewan’s decision will almost certainly be followed elsewhere in the country, which should help alleviate concerns about law firms simply laying off their students before their term has been completed.

Law firms, predictably in the teeth of a global recession, have already begun to lay off associates and staff members. Many more surely will follow, as I doubt any but the most ironclad-brand firms will avoid the same fate. Summer law programs will therefore almost certainly all be shut down, and the on-campus interview process will move to next winter, if not later.

● And, oh yeah — law schools also have to worry about postponement of the LSAT and consequent delays in admitting future cohorts of students. It’s not just the system’s output mechanisms that are struggling — if the input mechanisms go too, legal education has a whole new problem.

That is a staggering collection of disruptions and challenges, none of which the lawyer formation system was prepared to handle, all taking place in less than a month. (Credit where it’s due: For all the chaos and upset involved, law schools and their students have managed to shift almost all their operations from in-person to online in the space of a few weeks. Has it been seamless? Hardly. But schools and students have so far succeeded where many law firms and courts failed.)

But here’s the problem: It’s almost impossible to tackle any one of these issues without having significant knock-on effects on the others.

When law schools change their grades to pass/fail, law firm recruiters have to change their student assessment systems. When the new lawyer licensing process stalls out, firms can’t employ these new graduates as lawyers. When law firms scale back or postpone the hiring of new grads, new lawyer unemployment climbs and fewer people apply to law school. And so on.

More problematically, all the relevant actors in this mad scramble are independent from the other, mandated to pursue their own goals and their own survival regardless of whether that pursuit damages the other stakeholders. Nobody has either the overarching interest or the requisite authority to coordinate a unified response. Licensing bodies can’t tell law schools what to do, law firms can’t tell licensing bodies what to do, and law students can’t tell anyone what to do because they have no power and nobody to advocate for them.

We need to appreciate what’s actually going on here. These are not myriad individual problems and complications in several related areas of lawyer education and training and licensing and hiring. This is one big problem.

The lawyer formation process is breaking down in front of us. It’s breaking down because it’s a disjointed, cobbled-together collection of self-interested fiefdoms that have been allowed to call their own shots and pursue their own goals for decades.

Just as the court system is failing because it’s really about what judges and lawyers want rather than what clients and the public need, so too lawyer formation is failing because it’s really about what law schools want and what regulators want and what law firms want. Lawyer formation is not about the lawyer who’s being formed.

If the lawyer formation process were really about the lawyer, it would be holistic and unified, focused on the individual striving to become a legal professional. Instead, look at how we’ve separated the first several years of a lawyer’s career into three disjointed periods, administered by three different entities:

  • Law schools “teach the law” — even though the bulk of what they teach and how they teach it has not changed in more than 60 years. That scandalous fact alone could legitimately disqualify schools from having any further role in these conversations.
  • Courts and regulators “licence the lawyer” — even though the bulk of this process involves re-teaching and re-testing students on what (we apparently believe) law schools didn’t teach effectively in the first place.
  • Law firms — no, let’s be real here, clients — “train the lawyer,” by paying either the new practitioner or their employer to figure out, on the job, how they’re supposed to meet actual legal needs. Clients pay to make lawyers competent. What a disgrace.

We have separated lawyer education from lawyer training, and separated them both from lawyer licensing and entry into the profession. We’ve allowed this ridiculous process to continue year after year, despite knowing all its weaknesses and failings, and now we’re going to pay the price of that carelessness in one lump sum.

The pandemic is, of course, the proximate cause of all this. Physical distancing forced law schools to change their teaching and grading systems and forced regulators to rethink their licensing system. The global recession — and maybe that’s not a strong enough word — that’s about to strike us like an onrushing avalanche is forcing law firms to massively recalibrate their hiring and firing decisions.

But someday, probably years from now, the pandemic will end and the economy will recover. Will all these aspects of lawyer formation just “go back to normal” then? I strongly doubt they will, for two reasons.

One is that this ordeal is going to last so long — and feel even longer — that we’ll have a surprisingly hard time remembering what “normal” used to be like. Humans have a remarkable ability to grow accustomed to new conditions — if you’re not sure about that, look outside a month from now and see how many people aren’t wearing masks.

But the other, more important reason why we won’t just “snap back” to the old ways of doing things is that those ways have been permanently, irrevocably discredited. Those of us who’ve spent years advocating for change in the lawyer formation process have always been met with, “It doesn’t need to be done” and “Nobody would allow it” and “That would never work.”

Well, guess what? We did it anyway, because we had to, and it worked. And now we get to ask:

  • If Pass/Fail is an acceptable grading system during an emergency, why isn’t it acceptable all the time? Having taught a couple of law courses myself, and having experienced as an instructor how letter grades are arbitrary and indefensible, I believe Honours/Pass/Fail is the ideal assessment system — it tells both the student and her potential future employers all they need to know about course performance. And I’m not the only one who thinks that.
  • If we’re willing to grant emergency diplomas to law graduates who’ve not passed a Bar exam, why would we force future generations of lawyers to pass a test that we’ve effectively conceded is merely optional to the licensing process? Why would we not go a step further and officially do away with the bar exam altogether and pursue bar admission through alternative models?
  • In Canada, we’re willing to say that eight months of articling is as good as 12. What about six? What about four? When articling is already under heavy attack, when it’s been shown to be an abusive and discriminatory experience for many students, when we’re already having serious discussions about whether the practice should be discontinued, why should we carry it on a day further, especially in a pandemic?
  • Most seriously of all: If law firms are laying off experienced associates now, what are the chances they’re going to hire brand-new ones in three, six, or nine months’ time? What happens when the Class of 2020 (and maybe 2021) finds almost no job opportunities upon graduation or licensing? If the outsourcing of new lawyer training to law firms (upon which the entire lawyer development system hinges) stops, and firms survive without it — why would firms take on this role again?

Our “bucket brigade” approach to lawyer development, in which each participant takes the formative lawyer from one stage to the next, has been exposed (like all supply chains around the world) to be fatally vulnerable to disruption. Out of this crisis will emerge a driving need to re-unify the lawyer development system, to really rethink what it is we’re trying to achieve: to develop competent, confident lawyers to serve clients and society. In order to achieve that goal, we need to:

  1. Reconfigure and unify all the systems and processes of lawyer formation;
  2. Centralize and empower a single authority to be responsible for lawyer formation; and
  3. Most importantly, refocus the lawyer formation system on the lawyer who’s actually being formed.

That’s how I see the impact of the pandemic on legal education, lawyer licensing, and legal professional development. For my thoughts about practical steps we can take to achieve these goals, in both the short term and the medium-to-long term, please see the next two posts in this series, coming tomorrow.

Pandemic III: Justice reconstructed

I ended the previous post in this series by contending that while we need to do what we can to keep the old justice system in one piece for as long as we can, our primary goal should be to build new, safer, better quarters for our justice institutions and move everyone there after the crisis.

So how do we begin that process? Where is that safer location, and how do we get there?

Those are the most important questions facing the growing army of legal innovators and visionaries who recognize the sudden onset of system breakdown in the law and are rushing to help. We are so early in this process that it’s impossible to provide precise and detailed answers — we’re still coming to grips with the reality of our situation and only starting to develop an inventory of what needs to be done.

But I’d still like to offer three suggestions for how we can start to build a new and better justice system out of the ruins of the one that’s now starting to pass away.

1. Study successful triages. Right now, the law’s first responders (see the links in the previous paragraph) are already helping to set up the legal equivalent of field hospitals — online services that can deliver some or most of what the justice system would be providing if it hadn’t gone dark. Here are a few (including, it must be noted, some courts and regulators):

These and other hastily assembled projects are doing what the justice system can’t do while it’s offline; plenty more will follow in their path.

Study these projects, support them if and as you can. But also track and monitor them, and ask: What worked? What didn’t work as well? What were the success features and breakdown points of each one? What resources were required to carry them out, and what other resources would have improved them further? What can we learn about each effort? Innovation is an iterative process, and it requires the review and assessment of case studies to help us advance further.

But the most important question to ask about each of these efforts is: What was the user experience? Wherever possible, collect feedback from the people who used the service: What did this innovative solution do well? What could it have done better, and what did it not think to do? What outcome did you get from using this service, and was it what you needed? Would you use this service again or recommend it to others? (More on this subject in the next section.)

Keep a close record of all these triage projects — but don’t make the mistake of considering them “emergency alternatives,” interesting little lab experiments that can be switched off when (or if) the traditional justice system gets back on its feet. Treat them as if they are the foundation for a new justice system.

Because that’s exactly what they can and should be. If these new services can work this well on a shoestring in a pandemic, imagine what they’ll be able to accomplish with the full force and support of the legal sector behind them. Help turn these field hospitals into our new permanent care centres.

2. Design for people. I wrote a column at Slaw last month, “The Future of Justice in a COVID-19 World,” that profiled British Columbia’s Civil Resolution Tribunal, which I considered the world’s most successful legal system innovation even before the pandemic (and which, I note in passing, has stayed 100% open and operational since the crisis began.) That column contains pretty much everything I can say about the critical importance of incorporating human-centered design into the blueprints for our new justice institutions.

This excerpt from the post gets my point across as well as any:

Look at what the CRT does: It starts its design process by going to the people who have the greatest challenges accessing the justice system and online services. It asks them: “What do you need? How this should this be designed? Help us to understand. Correct us when we get it wrong.” Because if the system works for people with language and disability barriers, it will work for people without them. And if it works for all these people, it will work for lawyers and judges.

Our justice system is designed in exactly the opposite fashion. It is set up for judges and lawyers, and for nobody else. The opinions and experiences of people outside the justice professions are not sought out, because they are of zero interest. This is the real breakthrough of the CRT. It is an entire system designed from Day One to serve the people who need disputes resolved, not the people who are paid to resolve them.

My prediction is that by the end of this year, most Canadian provinces will have their own CRTs either in rapid development or up and running, and I urge American and other jurisdictions to study the CRT, adapt its principles, and copy its framework. (Utah has already gone some distance down this road.)

And for every court administrator or justice official out there who wants to know how to get started, I strongly recommend this invaluable Twitter thread by Darin Thompson at the BC Ministry of the Attorney General’s office. He has invented the wheel for you.

But remember that all of this hinges on human-centred design. As I said in the previous post: If you’re building a function or procedure or system for the fulfilment of legal needs, and you’re doing it from the perspective and priorities of a judge or lawyer or other justice professional, you’re doing it wrong. Build for the users.

3. Create an online consumer legal hub. Whereas the first two items on this list are shorter-term fixes, this is a medium-term project that will take many hands to lift off the ground and send into flight. But it’s not terribly complex, and almost all of the information needed to program it and launch it is readily available or can be relatively easily assembled and programmed. More importantly, if we start to build it now, it will be ready by the time the old houses of justice are ready to come down.

What I’m thinking of here is a website that does what lawyers and judges and courts have not managed to do — bring people into the legal system accessibly, and show them how to get the answers and outcomes they need easily and at no cost. (If I could come with a better name for the service I have in mind, I’d use it, but “hub” is the best I’ve got at the moment.)

Here’s the deal: This pandemic is going to do more than just close down courtrooms — it’s going to radically scale back the ability of the entire legal system to respond to needs and inquiries. Lawyers, legal aid providers, court services workers, and front-line justice officials all will have less time and bandwidth in the coming months, either because they’re trying to work from home, unable to access materials, swamped by the volume of inquiries, or sick and self-isolating themselves.

But we should not be trying to meet these needs on a linear, one-to-one basis anyway, and we certainly will not be able to do so effectively for many months to come. We need to scale our legal information and solutions provision — and we can only do that properly if we conceive and build from the start a system that is intended to scale and is designed for one-to-many solutions.

To my mind, a hub like this would provide two essential services: information about rights and obligations, and pathways to remedies and solutions.

(a) Information: Rights and Obligations

Almost all types of legal information inquiries — whether to lawyers, courts, or anyone else — can generally be grouped into three categories:

  • What am I entitled, by law, to do and to get? What are others entitled to do and to get? What are people’s legal rights?
  • What am I required, by law, to do? What are others required by law to do? What are people’s legal obligations?
  • What am I not allowed, by law, to do? What are others not allowed to do? What are people’s legal limitations?

The hub would guide users looking for this information by asking the users to answer plain-language questions, in a human-designed process that elicits the key details about the user’s situation. This would not, in most cases, require the most advanced machine-learning systems available — flowcharts and decision trees could probably bring most people to the answer they need, although any appropriate AI assistance would of course be welcomed.

This type of service would likely not veer all that closely to “providing legal advice” or engaging in “the practice of law” — but frankly, even if it did, I’m not remotely troubled. Protecting lawyers’ monopoly on legal services is just about the last thing any of us should be worried about in a crisis of this magnitude.

(b) Pathways: Remedies and Solutions

There’s not much point in telling people about their rights, obligations, and limitations unless you can also provide them with the means to act on this information. This would be the more complex and challenging part of this project, because while there are existing precedents for accessing legal information online, there are very few for actually generating legal outcomes online. But that’s what people need, so that’s what this hub must also provide.

To be successful, this service has to do more than point the user to a form or document and tell them where to send it.

  • It would generate the form or document for the user and send it automatically to where it needs to go — the user doesn’t have to fill out a single piece of paper.
  • It would recognize the existence of a valid claim or assertion of a right — and where possible, issue an order or a directive to the executive branch of government to enforce that claim or right.
  • Ideally, it would even enable the transfer or direct deposit of funds owing, or garnish the wages of a spouse or an employer.

This system, in other words, would incorporate the execution of legal remedies into its offerings.

Now, I know what you’re thinking. I recognize the dangers around the automated execution of anything in our imperfect world — I’m not suggesting that you get a machine to call the cops on someone. But I do think you can get a machine to enforce child support payments or fair wage legislation. We can start with the basics, the simplest and lightest execution of legal remedies. If we go no further than that, fine. But we can go at least that far.

Nor am I suggesting that all these capacities would be rolled out at once in a matter of months — obviously, there would be funding issues and negotiations among branches of government to make a hub like this a legitimate one-stop-shop for justice needs. But we don’t need to build the perfect justice hub right away — design principles remind us that we want to build skateboards and bicycles before we ever get around to building a luxury car. But just because we can’t provide everything doesn’t mean we should be content with providing nothing.

This whole project would obviously be a task for government, aided by legal/judicial/regulatory leaders, but guided (as with the CRT) by the people who need the information and services that the hub would provide. Initial iterations would be jurisdiction-specific and limited to the most urgent or frequently requested matters, but later versions could be far more expansive.

How much would something like this cost? I’ll leave that to the programmers and legal tech experts in the room, but if we could find $75 million for a company that aimed to serve Silicon Valley startups and sank beneath the waves shortly afterwards, I’d like to think we could find an amount in that vicinity to start helping hundreds of thousands of people and small businesses with much more pressing needs.

To wrap up this lengthy post, let me reiterate that yes, we should be embracing every available method to keep our current justice system going for as long as we can. Even battered and broken, it’s still the best system we have, and it retains enough strength and momentum that it can carry on some ways further yet. But we need to recognize, even as we do our best to prop the system up, that the pandemic has forced our hand. Our primary goal should be to replace the system, not repair it.

In a way, it’s a little like “flattening the curve” for the pandemic. By self-isolating in our homes, we’re buying time for the medical system to handle the flood of cases and expand its capacity. Similarly, we need to buy time for the justice system to stagger through this crisis as best it can — but before it’s all over, we need to ensure that the construction of new institutions, and the evacuation of people from the old ones, is at least well underway.

We need a new justice system. We’ve known that for a long time. We need to make this new one fit for the century we live in, not the century that ended 20 years ago — or, more accurately, three weeks ago.

Next up in this series: My thoughts about what the pandemic and its aftermath will do to our legal education and lawyer development systems.

Pandemic II: Justice system down

We need to recognize a couple of things about our justice system, in order to fully appreciate the fate that awaits it in the COVID-19 era and the tasks that now lie in front of us.

The first is that the system has nowhere near the capacity or resilience required to handle an emergency of this magnitude. Like our hospitals, which are about to be overrun with virus patients, our courts are perpetually underfunded, technologically handicapped, and already overloaded.

Case backlogs are common, hearings are routinely adjourned, and even straightforward cases stretch out over months and years. There is an entire body of constitutional law that addresses how long you can delay a person’s trial before their rights are violated, and it should tell us something that we don’t even find that remarkable anymore.

What happens when you take a creaking, overburdened system like this and place it in the path of the worst public crisis most of us have ever experienced? Our justice institutions can survive localized disasters — floods, wildfires, even terrorist attacks — because these events end relatively quickly, and the administrators can call in help from surrounding areas. What our institutions can’t survive is long, drawn-out, global emergencies of unknown duration, repeated multiple times, that disrupt schedules, force cancellations, and prevent in-person gatherings that could sicken or even kill their participants.

The justice system is not ready for this — but the hard truth is, it probably wouldn’t have been ready had this happened 10 years from now. And we don’t have the time or the resources to fix it now — the time to do that was 10 or 20 years ago. Just as you go to war with the army you have, rather than the army you wished you had, this is the justice system we’ve got.

Postponing hearings, allowing emergency e-filing, and teaching judges how to use Zoom is pretty much all that the courts have managed to do in response to the SARS-CoV-2 pandemic. Beyond that, as we’ve seen, the justice system’s best solution is essentially to give up, to shut down and hope for the best. There are no next steps.

Institutions need resilience in a crisis, just like people do. If your institution was forced to shut down because of the pandemic, then it failed its resilience test. It wasn’t there for us when we needed it.

The second feature of the justice system, though, is even harder to square with our new reality. In the short term, physical distancing is making it impossible for most trial courts to function normally. Some appellate hearings have continued by video, since no witnesses or exhibits need be present. But most civil proceedings, and almost every criminal proceeding, require people to gather together in small enclosed spaces for hours on end, waiting their turn to be called.

We’re not going to be able to safely or predictably do that kind of thing for a long time yet, especially since our current lockdown is likely to be just the first of many. How can you schedule a two-day hearing or a one-week trial eight months from now, when the government might lock down your community anytime, with little warning? How can lawyers arrange their schedules, how can witnesses book time off work or make travel reservations, under those circumstances? The logistics of court are easily derailed because there are so many moving parts that need to be tightly coordinated to get everyone in the same place at the same time.

Now, stop there. Go back to that last sentence and re-read those last eight words — “in the same place at the same time.” What this crisis has revealed is the central operating assumption of our justice institutions, which has now become our stumbling block: Everybody comes to the courthouse.

Every participant or stakeholder in a justice matter, no matter who they are or where they live, must at some point leave where they are and physically show up in front of the judge or her designate, inside the judge’s place of business, at a time specified by the judge, surrounded by the judge’s colleagues and employees, and do everything there according to the judge’s rules (including standing up when the judge enters the room). Failure to do these things will jeopardize your position; at worst, it could literally land you in jail.

Even when there’s not a global pandemic, there are enormous costs to a justice system that forces everyone to revolve around one person in one place. Every day, in criminal courts around the world, people in custody are placed in secure vehicles and escorted under guard to a courthouse, where they wait around until the judge or judge’s designate deals with their matter, after which they are either released or returned to custody.

Does it really make logistical sense (never mind hygienic sense) to round up all those people to stand in front of one person? Would it not make more sense for that one person to go to where these people are, and make whatever adjudications and decisions are required? Or to have many of these meetings take place by videoconference, so that nobody has to go anywhere?

I think that’s a discussion worth having. Or more accurately, it had been worth having, even though the vast majority of judges would never countenance the idea of going out and bringing justice to the world, rather than waiting for the world to come and get justice from them. But we’ve passed the time for discussions. We’re now building workarounds and assembling new solutions in real time, and the questions we’ll be asking are not “Will the judge approve of this?” so much as “Will this get the job done?”

Richard Susskind has made many insightful observations over the course of his career, but I suspect one will outlast all the others: “We have to decide if court is a place or a service.” For hundreds of years — right up until last month, in fact — court has been a place. By the time this pandemic has truly run its course, court will be a service.

We will not “go to court,” other than in exceptional circumstances (or in the case of criminal justice, which requires other serious reforms). We will “use the justice system,” from wherever we happen to be. Sometimes that will mean going to the courthouse and waiting for the judge to get around to our matter. But that will be the exception, not the rule — most times, we will access the justice system from our offices, our living rooms, our desktops, our mobile devices, our smart TVs.

Most family law matters, in particular, will leave courthouses and courtrooms over these next few years, and they will not return. They should never have been there in the first place. We can create, right now, an Integrated Family Law Agency to take over 90% of what a functional family court system should do, for a fraction of the time and cost. John-Paul Boyd laid out an entire blueprint for this kind of administrative model of family law dispute resolution almost two years ago. Seriously. It’s right there. Pick it up and run with it.

Our justice system is in trouble not just because it’s underfunded, under-resourced, and overburdened, as a global pandemic bears down on it like a hurricane. It’s in trouble because fundamentally, it’s all about the courts, the judges, the lawyers, and the law. It is not about the people whose rights and disputes need adjudication and resolution, or about the society that depends on the timely and affordable delivery of these outcomes in order to function.

This is why there’s not much point anymore in talking about “modernizing” or patching up our justice institutions. You can’t apply a Band-aid when you need a DNA replacement. By all means, we need to keep our system running as best it can through this crisis — we can’t let the walls give way and the roof cave in when there are so many people inside.

But everyone needs to be very clear: We are not going to all this effort simply to repair, patch up, and extend the life of a decrepit, crumbling edifice that’s already close to falling in on itself. We are keeping the old place together only long enough to clear everyone out of the building and move them to a safer location. We have to develop a new system, rather than trying to retrofit the old one. It’s time to start over.

For my thoughts about how we could begin to build those new and safer locations for justice, please see the next post in this series.

Pandemic I: What we’re up against

There is a line of thought within the legal community that the SARS-CoV-2 pandemic represents an opportunity for the legal sector to modernize.

The argument goes that this would be a good time for courts to introduce e-filing, to permit electronic signatures, or to carry out more video-based hearings. This is a chance for law firms, it is said, to shift their practices to the cloud or enable lawyers to work easily from home. It’s an opportunity for law schools to start getting the hang of remote teaching. And so on.

From my perspective, this is like watching a tsunami roar towards the beach where your seaside cottage is located and thinking that now might be a good time to spruce the place up a little.

To the extent this has not happened already, I’d like to suggest a tonal shift in our conversations about the impact of the global pandemic on the law, and a ratcheting-up of their seriousness and urgency, because I’m concerned that some in the profession still think this is primarily a short-term inconvenience.

In ten brief bullet points, as current as I can make them, here’s an I’m-not-a-scientist summary of what we’re up against in this pandemic.

It is still very early days, and we are still working largely in the dark. Everything changes daily. But one way or another, we’ll have to thread the needle between saving lives and preserving our health-care infrastructure on one hand, and saving the economy and giving people enough money to live on the other.

Every one of us is going to be put to the test, probably several times, before this is over, and so will all of our institutions and activities: economic, political, industrial, agricultural, recreational, scientific, academic, and yes, legal. “We’re just clambering into a life raft. Dry land is far away.”

This is why I’m not looking upon this pandemic as a difficult means to a happy end for legal innovation. To be blunt about this, millions of people are going to die worldwide over the next two years during this crisis. Governments are going to collapse, businesses are going to go bankrupt, economies are going to run into the ground. Perhaps just as bad, social and political norms are going to be corrupted or erased, and protections for the poor and vulnerable are going to evaporate.

In the face of a disaster of this magnitude, it’s easy to become overwhelmed. But we can’t take all the troubles of this world onto our own shoulders, and we’re not being asked to do that. We are being called upon to do whatever we can to help in our own corners of the world, our own communities and businesses and families.

For those us in the legal world, that means focusing our efforts on the justice system, the people who work in it, and the people and societies that the system serves. And believe me, we have our work cut out for us here.

Because in just its first few weeks in our world, COVID-19 has exposed the obvious and unsustainable incompatibility between the way the legal sector operates and what the world now actually needs. It is no secret to anyone that our legal system and its institutions (courts, law practice, legal education, legal regulation, and access to justice) have been gradually breaking down for most of the last 20 years. Let’s not fool ourselves by pretending otherwise — we know that they’re not working well, or even working at all anymore. We just haven’t been able to summon the will to do what’s needed to arrest that breakdown.

This pandemic and its global repercussions are going to accelerate the breakdown of our legal institutions, compressing that long, slow-motion collapse into a period of about 12 months. I am not exaggerating. That’s how long I think we have to hold our crumpling legal system together, while we simultaneously build temporary shelters and new legal institutions nearby and then evacuate people from the old houses of justice to the new ones.

If we haven’t built at least those temporary shelters for the law — assembled and rolled out promising new systems for solving legal problems and delivering justice outcomes — by the spring of 2021, then I really don’t know what will happen. I’m not even sure we have that long.

My next few posts here at Law21 are going to examine how the pandemic, the lockdowns, and the economic crisis are very likely going to mark the end of the old legal world and present us with a time-limited mandate to build a new one. I’m planning to look at three aspects in particular:

  • the justice system,
  • the lawyer development and licensing system, and
  • the provision of legal services by law firms.

For each area, I hope to describe (a) the nature of the system breakdown, (b) short-term triage we can conduct to get us through the worst of the crisis, and (c) outlines for new and better systems that must emerge here at the end of the old ones.

This whole situation is moving fast, and I want to urge you, regardless of what role you play in the legal sector, to take it seriously and find something you can do to help. As you rightly look to protect your own business or organization, as well as the health and safety of your family and colleagues, please also look for opportunities to help your profession and the people it serves, right now if possible. Don’t hold back waiting to see if you’ll be needed. You are.

I want to close with two quotations for us to bear in mind. One is from Dr. Mike Ryan, executive director of the World Health Organization, from a March 16 news conference: “Perfection is the enemy of the good when it comes to emergency management. Speed trumps perfection. The greatest error is not to move. The greatest error is to be paralyzed by the fear of failure. If you need to be right before you move, you will never win.”

The other is from Geoff Gillespie, US Navy JAG Corps lawyer, writing yesterday at Legal Evolution: “Everybody’s a leader now. Against the steep curve of the coronavirus pandemic, each of our actions will have an outsized impact on our organizations and communities. … It’s time to accept our new reality, and move into action.”

The power in your hands

The most dangerous threat to public health and the global economy in nearly one hundred years — and make no mistake, that’s what the COVID-19 pandemic is — obviously deserves and receives our highest-priority attention. But the existence of a truly dire emergency doesn’t render our other crises and problems any less serious, and it doesn’t excuse us from the ongoing task of trying to resolve them.

It’s a dismaying turn of events that the pandemic has coincided with and overshadowed a critical moment in the legal regulatory reform world. On March 12, the Trustees of the California State Bar postponed a scheduled vote on whether to explore even the possibility of a “regulatory sandbox,” a mechanism that would allow supervised oversight of innovative legal services provision outside the traditional legal profession. The reasons given for postponing the vote included ominous terms like “political headwinds” and the need to “consult with all stakeholders.”

Andrew Arruda, a member of the task force that recommended the sandbox experiment in California, provides more details in this post, which also asks supporters of legal regulatory reform to write the State Bar Trustees and exhort them to vote in favour of the mere exploration of a sandbox experiment in California.

The stakes are extremely high: Although Utah has approved a sandbox and Arizona seems poised to introduce similar reforms, California is a bellwether state when it comes to American legal and regulatory trends. If California rejects even the possibility of considering a sandbox, that would constitute a severe setback to regulatory reform worldwide. If California forges ahead, momentum in favour of reform would increase tenfold everywhere.

Like you, I’ve been focusing my personal and professional attention on the pandemic. I wrote about the impact of COVID-19 on our justice system earlier this week, and I’ll write more on that topic here at Law21 next week. But while the pandemic unfolds, a critical turning point in legal regulatory reform has arrived and must be dealt with. I invite you to read the letter to the Trustees that I sent this morning, and if you agree with it, to send your own message of support based on one of the templates provided here.

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Dear Trustees of the California State Bar,

My name is Jordan Furlong, and I am a lawyer, author, and legal market analyst who tracks the rapidly changing global landscape of legal services. I’m writing you today to respectfully but urgently advocate that, when the recommendations of the Task Force on Access Through Innovation of Legal Services (ATILS) return for your consideration later this year, you cast a vote in favor of exploring a “Regulatory Sandbox” to consider and review innovative legal service provision.

Seeking Solutions

I’m absolutely certain that you understand the scope of the access-to-justice crisis afflicting California residents today, and I’m equally certain that you want to see a solution to that crisis as much as anyone else. The question, as it always is in such situations, is how best to procure that solution, balancing the benefits that can be achieved against the harms that could be suffered.

My suggested approach to answering this question is to think not so much in terms of “a solution,” but of “solutions.” There is no rule that says wickedly complex and intractable problems must be resolved by the application of a single type of remedy. Indeed, our experience dictates the opposite conclusion: that the more complicated and multi-faceted the challenge we face, the more nuanced and multi-dimensional must be the array of tools and approaches we bring to bear.

In this reasoning, there is a strong parallel to be drawn to our current health crisis, the novel coronavirus pandemic. Every type of authority — government, medical, scientific — is working hard to help people avoid or delay the spread of COVID-19. We are all (or most of us, anyway) working hard to “flatten the curve.” But we are taking multiple approaches, rather than a single approach, to help resolve the problem. 

  • We are not just avoiding large public gatherings of people, we are also staying home (except to get groceries and other necessities).
  • We are not just staying home, but we are also closing schools to prevent children from unknowingly spreading infections to each other.
  • We are not just closing schools, but we are also testing as many individuals as we can and working desperately to expand our testing capacity.

Any one of these tactics would go some distance towards slowing the spread of COVID-19 and decreasing the rate of infection. But if we only engaged in a single tactic, we would quickly find it to be terribly insufficient — we would lose the battle in short order. We need multiple tactics employed simultaneously to have any reasonable hope of getting through this pandemic.

California Gov. Gavin Newsom (Photo: Rick Pedroncelli, AP)

(By coincidence, just before I finished drafting this letter on March 19, Governor Newsom issued his statewide order directing Californians to stay at home and avoid all unnecessary social contact.)

The Limits of “Lawyers-Only”

The access-to-justice crisis, while important, is of course not at the same level of seriousness as the COVID-19 pandemic. But the same reasoning, I submit, applies as well to the access crisis as it does to our public health emergency. 

Up until this point in history, we have deployed a single tactic to provide legal services: trained and licensed lawyers. We have not developed any other type or channel of service provision — indeed, we have outlawed such alternatives. To extend the analogy, it is as if we tested people for the coronavirus, but we simultaneously made it illegal to close schools or shut down movie theaters.

The result of this approach to the access problem is now so plain to see that it is virtually inarguable: Lawyers alone are insufficient to solve this crisis. We have tried — beyond any doubt, we have done our absolute best to employ one and only type of solution to the access problem, year after year, decade after decade. Yet we have not solved the crisis — indeed, we have seen it become radically worse throughout the last several years.   

We will not make any progress towards our goal of solving the access crisis unless we acknowledge this reality and deal head-on with its implications.

I am not here to tell you that giving Californians access to limited-licence practitioners, or court navigators, or AI-driven chatbots, or online interactive software for producing legal documents, is going to solve the access-to-justice crisis. I am here to tell you that unless we try to find out — unless we create the conditions for a series of controlled experiments to test our hypotheses — we will not move one inch closer to solving our problem. The “lawyers-only” approach has had 100 years to show what it can do — at this point, its failure must finally be conceded. 

Concerns and Responses

You might have legitimate concerns about the welfare of Californians who try these novel and untested methods, and those concerns are valid. Those concerns are explicitly addressed by the “Sandbox Model,” wherein alternative providers are: 

  • minutely examined and thoroughly questioned before they can interact with the public, 
  •  closely monitored and tightly regulated by a specialized oversight body during their interactions with the public, and
  • subject to subsequent data collection and assessment of their impact on the members of the public they have served.

You might also have legitimate concerns about whether these changes would pose a threat to lawyers and their livelihoods, and those concerns are valid. In response, however, I would observe that by its very definition, the access-to-justice crisis afflicts a portion of the market that lawyers do not serve

For lawyers to be threatened by these new providers, it would have to be the case that the markets and customers sought by these new providers coincide or overlap with the markets and clients served by lawyers. We know that is not the case. These are two parallel markets. Lawyers’ livelihoods will not be affected by the presence of alternative providers, precisely because they are “alternative” to lawyers.

Finally, you might have legitimate concerns about whether California is breaking precedent and moving too soon to explore the Sandbox option, and those concerns are also valid. But as you know, Utah is already forging ahead with the “Sandbox” regulatory experiment, and it seems likely that Arizona will shortly join Utah as a pioneer in American legal re-regulation. Task forces recently commissioned in Florida, North Carolina, and Connecticut, when they file their reports, seem likely to arrive at similar conclusions as did the Utah, Arizona, and ATILS task forces.

California need not fear being too early a pioneer. Before too long, it could be seen instead as too late a follower.

The Time is Now

In conclusion, I wish to urge you again to approve — not the establishment of alternative legal providers in California, not even the establishment of a regulatory Sandbox in California, but the exploration of the possibility of establishing such a Sandbox in California. It is almost literally the least disruptive and least controversial step that the Board of Trustees can take at this critical moment in time. 

I must also note that the current COVID-19 pandemic is certain to place an unbearable burden on our justice system. Courts worldwide are already finding themselves forced to cancel trials and shut courthouses. Law firms in Pennsylvania have been explicitly ordered to close their doors, and other states are sure to follow in the coming days. The justice system is going to grind to a halt, while the needs of Californians for justice and legal services in a pandemic will accelerate and metastasize. The time for action is today — right now.

Multi-faceted remedies applied simultaneously are the only way we will survive the coming pandemic. In exactly the same way, multi-faceted remedies applied simultaneously appear to be the only way to solve the access crisis. In order for us to find out whether this is correct, we have to try — to allow merely the opportunity to explore and test alternative measures. The power to try is now solely in your hands.

Contagion

Back in July 2018, I noticed that the State Bar of California had created a task force to consider whether regulatory reforms could improve access to justice in that state. I wrote about this development with what you might call jaded optimism:

The smart money, the obvious prediction, says this task force will come to nothing, that the forces of intransigence will chalk up another win by making the right arrangements with the right power brokers, or simply by stonewalling until the reformers tire themselves out. … 

But here’s the thing: Eventually, change does arrive, often when you least expect it. At some point down the road, power in the legal market will shift away from lawyers just enough to enable new expectations, assumptions, and rules for how legal services are created and delivered….

There will be a moment when that shift begins. This might even be it.

A little over a year later, an extraordinary series of events, unprecedented in the modern legal profession, began to unfold. You might be aware of some or even most of them, but it’s not until you see them arranged chronologically that you fully appreciate just what has happened in the American (and Canadian) legal profession in a shockingly brief period of time. With quotes from the linked reports, here’s the chronology:

●  August 28, 2019: “The Utah Supreme Court … has unanimously approved a work group report that lays out recommendations for narrowing the access to justice gap by reimagining lawyer regulation. … The work group outlined a new structure for regulating legal services by: 1) loosening the ethical restrictions on lawyers in the Rules of Professional Conduct and 2) creating new regulations for companies and others providing some legal services. The report recommends amendments to Rules restricting lawyer advertising, as well as Rules prohibiting lawyers from fee sharing with non-lawyers or allowing non-lawyers to have ownership or investment interest in law firms.”

● October 8, 2019: “The Chicago Bar Association and the Chicago Bar Foundation launched a joint task force to respond to the market failure in consumer legal services. … [The task force will have] five working committees, which include areas such as ‘Modernizing Lawyer Referral & Law Firm Models,’ ‘Optimizing the Use of Other Legal Professionals’ and ‘Partnering with Online Legal Service Providers and Other Businesses and Technology Entities.’ … A public comment period is expected during the summer of 2020, with a goal for submitting recommendations to the Illinois Supreme Court in September 2020.”

For instance: Wash your hands.

● November 6, 2019: “The Florida Supreme Court has asked The Florida Bar to undertake a study of the rules governing the practice of law in order to determine whether revisions are needed to improve the delivery of legal services within that state. The Supreme Court directed the committee to look into the topics of lawyer advertising, referral fees, fee splitting, entity regulation, regulation of online service providers, and regulation of non-lawyer providers of limited legal services. … The letter asked that the study group complete its work and submit a final report by July 1, 2021.” (More details here.)

● January 1: 2020: Pursuant to recommendations of the Legal Services Task Team created by the Law Society of Saskatchewan and the provincial Ministry of Justice,  “amendments to The Legal Profession Act, 1990 include a clearer definition of the practice of law. The Task Team also recommended expanding the list of exemptions to the unauthorized practice provisions and creating limited licences that may be granted by the Law Society to non-lawyer legal service providers on a case-by-case basis.” (Also on January 1, the Law Society of Saskatchewan launched a proactive entity regulation regime.)

● January 9, 2020: “The creation of [Connecticut‘s] State of the Legal Profession Task Force was driven by the access-to-justice gap, as well as the challenges lawyers face in the current system. … Various task force subcommittees will examine alternative business models, how technology can be leveraged to advance the legal profession, and ethics rules. …The task force is aiming to produce a report by 2021.”

● January 20, 2020: “The Law Society of British Columbia‘s … futures task force has released a consultation paper and … is seeking input from lawyers, notaries, paralegals, the judiciary, organizations and the public to assist in its consideration of what legal practice will look like over the next decade, in particular the factors and forces that are likely to influence the delivery of legal services and the regulation of the legal profession.” The deadline for public comments was Feb. 29, 2020.

● January 23, 2020: “[The Global Legal Practice Committee of the ] D.C. Bar announced it will study evolving legal service delivery models in the U.S. and abroad, including non-lawyer ownership of law firms. … The possibility of loosened law firm ownership rules in the nation’s capital could be of special interest to the Big Four accountancies.” The deadline for public comments was March 9, 2020.

● January 30, 2020: “The New Mexico Supreme Court endorsed proposals to expand civil legal services in the state, particularly to lower- and middle-income residents and those living in rural areas.” The report recommends the creation of a Court Navigators program and further study of the licensing of non-lawyers to perform limited legal work.

● January 31, 2020: “A petition to the Arizona Supreme Court from Dave Byers, a member of the Arizona Task Force on the Delivery of Legal Services, proposes ‘substantial’ rule changes led by the proposed elimination of a rule forbidding non-lawyer ownership stakes in law firms and legal services operations. … The proposed rule changes will be considered at a rules conference in August. That will be preceded by a public comment process.”

● February 5, 2020: “…  and whereas experimentation with different approaches to regulatory innovation provides a measured approach to identify and analyze the best solutions to meeting the public’s growing legal needs, the [United States] Conference of Chief Justices urges its members to consider regulatory innovations that have the potential to improve the accessibility, affordability and quality of civil legal services, while ensuring necessary and appropriate protections for the public.”

● February 7, 2020: “The Illinois Attorney Registration and Disciplinary Commission (ARDC) has published for public comment an Intermediary Connecting Services Proposal [that] would regulate lawyers’ participation in for-profit matching services and regulate the services themselves. … The proposal would regulate lawyers’ participation in for-profit matching services and regulate the services themselves.” Comments are open until April 3, 2020.

That’s one way to put it.

● February 16, 2020: “The Association of Professional Responsibility Lawyers … in an access-to-justice report [that] could be released as soon as August … likely will make concrete suggestions, including rule changes, to spur states to increase access to legal services. This could include suggested changes to Rule 5.4 to open law firm ownership to non-lawyers, alterations that could redefine who can practice law, and reforms to make cross-state border representations easier. APRL is relatively small when compared with the ABA, but its recommendations in issues like lawyer advertising have carried weight.”

● February 17, 2020: “An overwhelming majority of the ABA House of Delegates agreed to approve Resolution 115, which encourages state regulators and state bar associations to explore regulatory innovations that could improve access to legal services, and to collect data on those programs. But the resolution also notes that it should not be construed as recommending any changes to the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law, or any other subjects.”

● February 25, 2020: “The [California State Bar] Task Force on Access Through Innovation of Legal Services approved eight recommendations that will go to the bar’s board of trustees next month. The task force stopped short of calling for immediate changes that would allow non-lawyers to take an ownership stake in law firms. The group also opted for only a modest expansion of fee-sharing. Instead, the 22 members pinned many of their hopes for reform on the creation of a trial program for entrepreneurs known as the ‘regulatory sandbox.’ … The recommendations are scheduled to go to the bar’s board of trustees March 12.”

● March 9, 2020: “The Manitoba government is taking the first step to making legal services more affordable and accessible. … [New] legislation would let the Law Society of Manitoba designate and regulate another category of legal service providers, which would be called a limited practitioner. … The changes were suggested by the Law Society of Manitoba after a review found there were legal needs that weren’t being met and there was a need for more affordable alternatives for legal advice, information, and representation.”

● March 31, 2020: The State Bar of North Carolina has created an Issues Subcommittee to Study Regulatory Change. The Subcommittee will “examine the impacts that lawyer regulations have on access to justice and national reform trends.” The Subcommittee will hold its first meeting on March 31, 2020.

It will be almost exactly eight months between the approval of Utah’s Task Force Report and the first meeting of the North Carolina Subcommittee. By end of day on March 31, ten American jurisdictions, three Canadian provinces, the American Bar Association, and the US Conference of Chief Justices will have either launched task forces to examine legal regulation reform or have taken significant steps towards encouraging such reforms or actually implementing them.

Three brief observations.

Effect without a cause / Synchronicity

1. It would be not just clichéd to call this series of events “a domino effect,” but also misleading. Many of these reform initiatives were conceived and carried out contemporaneously, with some awareness but only limited knowledge of what was happening in other jurisdictions. There is an element of synchronicity here: This wasn’t so much a series of cause-and-effect occurrences as a tectonic shift in the subterranean landscape of the law, manifested in several locations in less than a year.

The reality of a full-scale access to justice crisis seems to finally be registering with those who lead and regulate the legal profession, and these 15 separate reform efforts are the first results. All across the North American legal profession, many people appear to have had the same thought at about the same time: “This can’t go on.”

2. These efforts are not uncontested. State Bar presidents from New York, New Jersey, Ohio, Pennsylvania, Delaware, and Illinois fought the original ABA Resolution 115 and required the insertion of clauses protecting Rule 5.4 in order to win their support. Resistance by lawyers to regulatory reform efforts in California seems to have led that state’s Task Force to slightly downsize the scope of its recommendations. Hardly surprising, though no less disheartening.

But it’s important to recognize that this opposition has not yet thwarted or halted the reform efforts. As I told Law360, the amendment to the ABA resolution did not detract from the resolution’s scope or impact, but only clarified the limits of how the resolution should be interpreted. Reform opponents are playing a “prevent defence” rather than mounting any offence of their own, trying to slow the train as it leaves the station or preserve old exclusivities for a little while longer. Re-regulation has the momentum, and those on both sides of the issue seem to understand that.

3. The title of this post is obviously provocative, standing as we are in the rising shadow of a true crisis of contagion. But I chose the title deliberately, and not just because the spread of legal regulation reform across multiple jurisdictions feels infectious.

It seems likely that our society is about to enter a period of social and economic upheaval. If everything breaks right, it will be a brief, containable wave of sickness, followed by a short-term recession — a lot of extra hand-washing, cancelled trips and other inconveniences, but nonetheless an experience that passes like a summer storm. Or it could be something much more serious.

The further down that spectrum we’re taken by the COVID-19 crisis, the more transformational will be its effects on our economy, our governance, and maybe most importantly, our social contract with each other. Part of that social contract is that the elites who run things in our society are given license to do so on the condition they run things for everyone’s benefit. There is a lot — and I mean, a lot — of doubt in many people’s minds about the validity of that deal. When 39% of Americans would have trouble covering an unexpected $400 expense (and 12% couldn’t do it at all), how could they possibly manage a health emergency? Or a legal one?

So it might not be surprising to find, when we emerge from this coming crisis, that the terms of the relationship between the legal profession and wider society have begun to change. Even if the crisis is contained and short-lived, existing frustrations with the broken legal system will be exacerbated and amplified, and regulatory reform is likely to come swifter and more thoroughly.

But if the crisis is neither contained nor short-lived, then there might even be a Great Re-Ordering ahead of us, a turning point at which anger over a broken system turns into action, and deference to elites gives way to hostility, protest, and a readiness to rewrite that social contract.

So these legal regulation reforms might not be outliers at all; they might simply be preparing the legal profession for our new normal. Because as we’ve witnessed over the past eight months, radical new ideas can be contagious.

Law firm culture and the “war for talent”

This is a moment of opportunity for law firms. As systems and technology transform the engines of legal services and a new legal economy emerges, firms have a rare chance to strengthen their competitive positions and grow their market share through innovation and investment for the future.

A few firms are doing exactly that; but most are not. And what’s weighing down many of those firms is a cultural millstone that we don’t talk about enough. It’s not the tired excuse of “our lawyers are too risk-averse.” It’s something more formidable: a toxic mix of owner complacency and employee intimidation. It’s a culture of timidity.

At these firms, serious investment in meaningful innovation doesn’t happen, partly because the partners won’t sacrifice individual profits and comfort for the firm’s long-term strategic advantage — but also because nobody else in the firm is willing or able to confront this unpleasant truth and challenge the firm’s owners to do better. At exactly the moment when bold leadership would pay huge dividends, nervous silence predominates. The partners are afraid of risk and sacrifice, and everyone else is afraid of the partners.

Don’t mention the war for talent.

A useful illustration of the culture of timidity in many law firms is the so-called “war for talent,” which apparently is still going on about 20 years after it first broke out. Law firms love to talk about how they’re “winning the talent war” by acquiring this lateral or appointing that director or paying first-year associates a little more than the firm down the street.

The thing about wars is that they’re expensive and destructive, even in the business world, and you don’t get involved in one if you can avoid it. But if you are going to get involved in one, you better have a plan for how to win it and an ironclad resolve to pay the costs you will incur.

As far as I can tell, no law firm has tried to actually start, or win, a war for talent. No law firm has been willing to make the sacrifices necessary. For the benefit of any law firm that might like to try someday — and more importantly, to illustrate how a culture of timidity hobbles the effort — here’s a suggested blueprint. A few caveats:

  • I’m focusing here on new legal talent, the kind law firms (often) hire straight out of law school and (occasionally) develop into partners, but the principles here can apply to acquiring more experienced talent too.
  • I’m discussing this in the context of large law firms, but the principles absolutely apply to midsize or regional firms, with appropriate changes to elements like quantum of compensation and range of law schools.
  • I’m restricting my definition of “legal talent” to just lawyers, which is unfair, but designing a full-spectrum legal talent strategy is beyond this blog post. Most of the reasoning below applies to acquiring all legal value providers, however.

1. Hire for your firm, not anyone else’s. The purpose of a talent strategy is to help implement a pre-existing firm strategy. Consult your firm strategy (if you have one) and ask yourself: What business are we in? Who are we serving, what do they need from us, and what is our differentiated value proposition to them? You are hiring people for that firm, and no other. Law firms that hire “the best and the brightest” (however they define that nonsensical term) end up with a generic pool of talented lawyers who could work anywhere. You want lawyers who will do better at your firm than they would anywhere else. But getting ruthless clarity about your firm’s nature and purpose can be a long, brutal slog through your partners’ selfish priorities and comfort zones. Effective strategic planning starts with honest self-assessment, and that is not most partners’ strong suit.

2. Hire for tomorrow, not yesterday. Law firms routinely make the mistake of looking for new lawyers who’ll “fit their culture.” That’s a problem — not only because “culture” invariably justifies and perpetuates the exclusion of women and visible minorities from the firm’s ranks and power structures, but also because your firm’s culture is old and your incoming talent is young. You’re not just hiring for 2020 — you’re also hiring for 2025, 2035, and 2050. You need lawyers who won’t “fit” your culture so much as make your culture new and better. You’re hiring leaders for a diverse future, not worker bees for a monochromatic past. But your partners, especially the older white guys, want to hire the candidates they’re “comfortable” with, and you know what that means. They need to be persuaded otherwise, or you’ll wind up building a law firm ready for all the challenges of 1998.

3. Cast the widest net for new talent. Most firms hire from a small group of favourite or “safe” law schools every year. It’s easy, convenient, and uncontroversial, which means all the other firms are doing it too. Look everywhere for talent. Your very specific needs will be hard to fill, so broadcast them to every school in the country through social media and targeted ad placements. Visit more “lower-ranked” schools in person and meet their brilliant, hard-working, creative, empathetic students. Your rivals are ignoring these rich veins of talent, but you’re smarter than they are and you’re willing to spend more than they do. But first you’ll need to persuade the partnership to increase your recruiting budget, and to consider schools other than their alma maters or those most highly ranked by some penny-ante online magazine.

Smart organizations pay for the best talent.

4(a). Pay twice the going rate for new talent. A New York firm raises its starting associate salary to $190,000, and the rest of the industry either meekly follows along or clutches its pearls in dismay. That’s not a “war for talent,” that’s a PR exercise. You want to win the war for talent in New York? Pay new associates $350,000 a year. Or pay $240K in Chicago, $190K in San Diego, $140K in Halifax, whatever. Publicize it far and wide, make sure the whole industry (and every law student) knows that your firm crushes everyone else in this category. Or, if you simply can’t persuade the partners to ramp up associate salaries that much, try this cheaper alternative:

4(b). Take over your associates’ student loan payments. Pay the top-ranked salary as well as all your new associates’ loan instalments, and keep paying them until the associate becomes an equity partner or leaves the firm. Nothing preoccupies new lawyers more than their debt loads, so take this burden off their minds; you’ll be inundated with applications. Either of these tactics would vastly increase the size of the talent pool from which you can draw. It would also blow partners’ gaskets, not just for the hit to their profits but also for the exposure they’d feel from adopting such a bold tactic. Most firms that have made it this far into the list would falter at this step. For those that soldier on, we’ll add another outrage:

5. Don’t bill your new associates’ work. I campaigned for the revenue-neutral associate a couple of years ago, and you can read all my arguments for it there. But the upshot is that even your hand-picked high-paid new associates don’t have the skills to produce work of value that clients want to pay for, and forcing them to do so creates enormous negative pressure. “But, but,” the partners sputter, “Who will pay for the associates if we don’t bill their time?” Here’s a radical answer: The owners of the business can pay employees out of their own profits, like in the rest of the world. Another hard truth for the partners, another differentiating factor for candidates. And here’s one more.

6. Immerse new lawyers in a world-class training program. Take a group of brilliant, diverse, highly motivated, well-paid new lawyers, and instead of pushing them to bill thousands of low-quality hours, spend their first two years on the job equipping them with a suite of 21st-century legal business knowledge and skills. Which ones? Customer service, process improvement, project management, human-centred design, cultural competency, financial literacy, artificial intelligence, knowledge management, industry intel, time management, I could go on and on. Embed them on cases, in transactions, and especially on-site with clients, as observers and apprentices. Can you imagine what you’ll have on your hands at the end? What a contrast they’ll present to the exhausted, disheartened second-year cohort at every other firm?

All of the foregoing can be yours — probably yours alone, because how many firms will copy you? And to get it, all you have to do is pay the price for it. But this strategy would cost something even more valuable than money: It would cost political capital.

A senior staff member who seriously brought this proposal to the partnership at most law firms might not have a job this time next year. A senior partner who tried to sell their colleagues on it would suddenly stop getting invitations for dinner or golf. Breaking the culture of timidity in law firms, speaking truth to power, can come at a high price.

The path to winning the legal talent war is simple. But it’s not easy, and it’s not supposed to be. If it was easy, everyone would do it.

Will a law firm’s owners yield a fraction of their profits to help make their firm the undisputed winner of the legal talent wars, year after year? Will a firm’s leaders gamble their status, risk their relationships, or spend their political capital to make it happen? In the great majority of firms, maybe 99 out of 100, the culture of timidity ensures that these questions won’t even be asked, let alone answered.

So how about your firm? Are you one of the 99? Or are you the 100th out of 100, where someone was brave enough to raise this and the partnership was bold enough to try it? I’m not saying every law firm should mount this talent strategy — frankly, many firms shouldn’t. But every law firm should be a place where it could be openly considered, where employees feel empowered to raise difficult issues and owners are mature enough and secure enough to be told things they’d prefer not to hear.

Because of course, this isn’t just about the “talent war.” This is about everything coming our way in the legal economy over the next decade or more. Every law firm is going to experience the same storms, go through the same crises, and glimpse the same opportunities. The firms that come out of this gauntlet leading the pack will be those that found their courage, empowered the right leadership, galvanized the partners, accepted the sacrifices, and committed to act. They calculated the steep price of starting and winning a war, as well as the risks of breaking the code of silence around that price — and they chose to pay it nonetheless.

There’s no other requirement. There are no other tests. Is this your firm? Are you ready?

Reflections from a parallel universe

With the publication of Jack Newton‘s terrific new book The Client-Centered Law Firm: How to Succeed in an Experience-Driven World (glowingly reviewed by Bob Ambrogi at Above The Law), I thought I’d share with you an excerpt from the book’s foreword, which Jack graciously invited me to write. Then go order and read a copy of The Client-Centered Law Firm for some great insights into where the legal marketplace is going and what lawyers can do to keep pace with it.

= = = = = = =

I’ve recently returned from a trip to a parallel universe, where an alternative timeline of history has unfolded. It was a fascinating place, and I want to share with you some of what I saw there.

  • I saw the enormously profitable entertainment giant Blockbuster, which watched the internet develop and understood its potential as a movie distribution engine. Blockbuster used its vast collection of films and its data about customers’ buying habits to become the world’s leading source of movies online, and now even produces its own films. “We’re not in the business of renting videocassettes,” Blockbuster’s leaders told themselves. “We’re in the business of helping people enjoy the movie they want to see tonight.”
  • I saw the great photography multinational Kodak, whose researchers were among the first to develop the technology behind digital cameras — but rather than dismissing their researchers’ work, Kodak’s leaders saw an opportunity to develop an entirely new line of products. The company eventually invented digital photo technology that it now licenses to Microsoft’s popular “mPhone” at an enormous profit. “We’re not in the business of selling film,” Kodak’s leaders realized. “We’re in the business of helping people take pictures.”
  • And I saw the most powerful and valuable company in the world: Sears, the global online shopping colossus. Leveraging its long history as a source of convenient purchasing — from its catalogues to its distribution centres — Sears understood that the internet was the most convenient possible way for people to shop, and it invested heavily and successfully in the technology to make it happen. “We’re not in the business of running department stores,” Sears’s leaders said. “We’re in the business of helping people easily get the products and services they need.”

In our own universe, of course, things didn’t turn out quite this way. These longstanding market incumbents missed the opportunity presented by new technology to rethink just what business they were really in, and to re-design their companies in ways that could enable them to use this technology for greater growth and higher profits.

But this alternative timeline reminds us that established market leaders need not inevitably lose out to upstarts and challengers from the outside. Not only is it possible for incumbents to reap the rewards of technological changes, it is incumbents who are best positioned to do so. They already have the market dominance, the financial reserves, the brand power, and the proven track record of success. All they need is to be willing to think a little differently about themselves and about their customers’ actual needs.

This is exactly where the legal profession finds itself as we open the third decade of the 21st century. It is now beyond all doubt that technology has changed and will continue to change the conditions under which legal services are bought and sold. There is no going back to the way things used to be. And we shouldn’t want to go back, because we can now serve our clients better and faster and less expensively and with a higher degree of quality than we could before. We’re at the dawn of a golden age of legal services.

Lawyers can lead the way into that new age — if we are willing, if we have the courage and the foresight, to understand that technology and change and upheaval are not threats, they’re opportunities. Opportunities for us to give more help and better advice to more people and more businesses, faster and more effectively and more profitably than in the past. Opportunities to work fewer hours, connect more deeply with clients, run better legal businesses, and lead happier personal lives.

Are you in the business of billing hours? Are you in the business of filling out forms and signing documents and attending meetings? Are you in the business of measuring out your life in six-minute increments?

If you are the lawyer I think you are, then the answer is no. You are in the business of helping people solve problems, of putting lives back on track, of helping businesses grow and prosper. But it’s possible that your own law business has started to chase and measure and reward the wrong things — that it has forgotten its intended purpose, what and who it’s actually for. Because the purpose of your law business is your clients.

It’s time for the legal profession to develop client-centred law practices. It’s time for us to rethink and redesign our law businesses. It’s time for you to write your own alternative history.