Pandemic IX: Law firm transformation

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Posted in: Law Firms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pandemic VIII: Law firm transitions

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Posted in: Law Firms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pandemic VII: Law firm essentials

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Posted in: Law Firms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

= = = = = = = = = = =

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

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

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

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

Pandemic VI: Lawyer formation re-engineered

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Posted in: Careers, Law School

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

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Posted in: Careers, Law School

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

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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

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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

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Posted in: Law21

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

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Posted in: Law21

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

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Posted in: Access, Governance

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.

(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.