The future of legal sector reform is now

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Posted in: Competence, Law School, Lawyer Formation, Licensing, Regulation

I was happy to contribute an article to the latest issue of leading European legal industry magazine Legal Innovation and Technology Today. You should read the entire issue, which includes great pieces about DEI in the legal sector by Christy Burke, agile law firms by Chris Bull, and key corporate legal trends by Ari Kaplan.

My article, “How technology can help revolutionize legal education and lawyer development,” dives into some serious detail about the catalytic role tech can play in reforming the lawyer formation process. I’d encourage you to read the original piece in its entirety, but I’ve reproduced an excerpt below — and I encourage you to read to the end, where I share some breaking news about legal regulation reforms happening in real time.

The legal profession, to its credit, has made significant progress throughout this century improving law firm business practices, lawyer-client relationships, and the use of technology. But there’s one area of professional life that needs innovation even more: the lawyer formation system. How we go about educating, licensing, training, and monitoring the competence of lawyers desperately requires an overhaul. Technology can play a critical role in getting us there.

The Problem. Law degrees and bar admission courses drain several years and significant sums of money at the start of a legal career while providing little preparation to succeed in that career. Licensing bodies certify lawyers before they’ve developed sufficient skills to serve clients, run firms, or manage their own businesses and personal well-being. Law licenses are effectively permanent and unconditional, creating no obligation for lawyers to demonstrate their continuing fitness to practise.

In the result, many new lawyers experience whiplash when they enter practice, often deeply in debt, to find working environments disconnected to their expectations and pressures unlike any they’ve been prepared for. Unready to practise law and lacking support for ongoing skill development, many sink into despondency and depression, often leaving the profession altogether.

The Solutions. We can do better than this. The archaic and fragmented early-years development of lawyers can be unified under a single modern development process that guides professionals along a “formation continuum,” from their first day of law school through their first day of competent, confident, independent practice.

But attempts to reform the lawyer development system will be opposed both by deeply entrenched interests in academia, licensure, and regulation, as well as by equally entrenched habits and assumptions in the legal profession that “this is how we’ve always done it” (or in particular, “this is how I had to do it”) and “there’s no other way it can be done.” The time to change all that is right now.

The Role of Technology. The pandemic forced lawyers to rely heavily on tech in everyday practice, and most were pleasantly surprised by the ease of the transition and the effectiveness of their tools. Many chief judges have publicly stated that there’s “no going back” to the offline-only world of justice, while most law firms have found the majority of their lawyers unwilling to return to the office full-time.

Whether we wanted it or not — whether we were ready for it or not — we’re already a changed profession, tech-reliant and increasingly tech-comfortable. Technology should now be applied to help solve the myriad problems with the lawyer development system.

Legal Education. The online legal education experience of the pandemic should be integrated with the in-person version and become more sophisticated and student-centred. Professors could record their lectures and post them online for students to view before class, allowing in-person class time to be converted to discussion, collaboration, breakouts, and workshops. Guest speakers could be Zoomed in from anywhere to answer student questions or assess advocacy skills.

Law schools could also offer degrees or certificates in an online format for working parents, retirees, or community leaders who don’t want or can’t afford the time and financial commitment of a full degree. “Asynchronous law diplomas” could be both a steady revenue stream for schools and a powerful way to raise public legal knowledge and problem-solving capability.

Lawyer Licensing. Technology could help new lawyers get more hands-on practice experience before they’re admitted to the profession. An aspiring lawyer in an urban centre could be “apprenticed” to a small-town practitioner, spending one week on location and three weeks at home doing legal work, speaking with clients, drafting documents, and learning the ropes of the law business. Regular video meetings with the veteran lawyer could help ensure the trainee is learning the core competencies required for licensing.

The experience of working in a law firm need not even require a real firm. The licensing process in some Canadian provinces includes several months spent working in a “simulated law firm,” where bar applicants field emails from lawyers, videoconference with actors playing clients, and become accustomed to the rhythms and requirements of practice. Simulated firm experiences could also be used to prepare trainees for real-firm exposure, accelerating their development.

Lawyer Competence. Rather than obliging lawyers to complete a minimum number of hours of CLE programming on any topic they choose, we should create a robust competence framework for the legal profession to help lawyers self-assess their proficiency throughout their careers. Technology can help us progress towards solutions.

Regulators could design online quizzes along the lines of, “How proficient are you?”, in which lawyers are required to rate their own levels of confidence on the core competences of lawyering, and perhaps answer a few basic questions. Their final score could be shown to them, along with suggestions that certain areas could benefit from upgrading.

Regulators could also create online video and resource packages that guide lawyers through the most common sources of client complaints and malpractice charges, including retainer letters, time management, and client communication protocols. Lawyers could be invited (or obliged) to complete these “self-guided mini-courses” to maintain their competence in core areas of public interest.

– – – – – – – –

That’s the excerpt from my article — now for some breaking news.

We’ve officially passed the point of speculating about how nice it would be if things were a little different in how we license lawyers and regulate legal services. Wishcasting was yesterday — today is about making change happen, for real. A swift glance around North America shows us that massive shifts in the foundation of legal regulation and lawyer formation are happening right now. Dominoes are falling fast, knocking down others and generating waves of change across the legal world.

You already know about the legal innovation sandboxes in Utah, British Columbia, and Ontario, and the revolution in legal regulation unleashed in Arizona. But just in the past few days — right up to this morning — we’ve seen some extraordinary developments in lawyer licensing and legal regulation and the United States:

The fact is, this is no longer about “the future of legal services.” This is happening right now. The process of reforming legal regulation and lawyer licensing has begun in earnest. Technology will play a major role in this process, as my article suggests. But far more important than the tools of reform are the reformers themselves — the people who are ready and willing to lead this process forward.

This is your chance to step up and become one of those leaders. If you still need an invitation to take part, here you go.

Frugal innovation in lawyer formation

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Posted in: Law School, Lawyer Formation, New Lawyers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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