The rise of the lawyer

Earlier this year, I received an invitation to write the epilogue for a book called New Suits: Appetite for Disruption in the Legal World, by Michele DeStefano (founder of the groundbreaking Law Without Walls program based at the University of Miami Law School) and Guenther Dobrauz-Saldapenna (partner and leader of PwC Legal Switzerland and leader of PwC’s global legal tech efforts). New Suits is an enormously ambitious and illuminating exploration of the frontiers of technology-powered legal practice, especially for large enterprise clients and their outside counsel, and I highly recommend that you read it.

Soon to be a major motion picture. Well, no.

Of course, I’m no technology expert, and I felt supremely unqualified to say anything useful about the impact of blockchain, AI, RegTech, and so on. But I thought that lawyers who read New Suits, especially newly called lawyers or law students, might reach the end of the book feeling a little overwhelmed by the scale of change facing them, and wondering whether the legal world of the future would in any way resemble the one they had already entered — and if that world would need, want, or even welcome lawyers.

So I wrote what was essentially a message to those lawyers, to explain what all the forthcoming changes would mean for them, what the new legal world was going to demand of them, and what they should feel both empowered and required to demand in return. With the kind permission of the authors, and with a few small edits, here is that lengthy but heartfelt message. 

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As I was preparing to write this epilogue, an email alert flashed across my screen with a message from a legal technology company. It announced itself in breathless terms: “AI has once again triumphed over a human lawyer.” (The task in question was the screening of a non-disclosure agreement.)

What an appropriate starting gun for this undertaking. The book you’ve just completed has catalogued in amazing detail the changes rippling along the foundations of the legal market worldwide, the technology that’s rewriting the rulebook for practising law, and the market forces that are fundamentally changing the nature of legal demand. Enterprise legal services — that sector of the market devoted to the legal needs of large companies, corporations, institutions, and governments — will never be the same again.

Yet it’s worth pausing to think about the deeper implications of that message. Why does it say “triumphed”? Who’s rooting for the machine here, and why are they rooting against the human? What benefit is being created by the application of this new technology — and who will ultimately reap that benefit? Are we celebrating because a human lawyer will be liberated from drudge work and assigned to deliver wise counsel to sophisticated clients? Or is it perhaps more likely that that lawyer will instead be liberated from a steady paycheque, and that fewer rather than more opportunities for human judgement will result?

We live in an age when the ultimate goal of many corporate activities is to “enhance shareholder value,” a phrase that has become a mantra not just for corporate boards, but also for the equity shareholders of large law firms. But you know, not everyone out there is a shareholder, and not everyone is seeing their value enhanced.

There are some who instead characterize our era as “late capitalism,” and who suggest that we’re entering the decline phase of one system and the gradual emergence of something else, something new. Is either of these opinions correct? What mantras should we be adopting for an enterprise legal market populated by blockchain, digitization, smart contracts, and Reg/Sup/PropTech? What is the real purpose of lawyers in the intelligent machine age?

For lawyers, these are not academic questions, and we should not act as if they are. If you’re a lawyer whose career trajectory is likely to carry you up to or past the midpoint of this century, I believe these questions are vital for you to contemplate. The answers you come up with will determine not just the sort of work you find yourself doing, but also the ultimate ends towards which your efforts will lead you, your clients, and everyone else. This epilogue is intended to help you through that contemplation.

To my way of thinking, there are three critical considerations for you, the 21st-century lawyer, to ponder during this process of discernment — three factors that merit at least as much time and bandwidth as any other. These concepts are “System,” “Service,” and “Self.” Here are my thoughts on each.

1. System

Now and for the foreseeable future, enterprise legal services will be created and delivered primarily through systems. For our purposes, we can define a “system” as an organized structure of interrelated and interdependent methods, procedures and routines, created to carry out an activity or solve a problem. If that concept interests or even thrills you, you’re going to love this line of work. If it puzzles or bores you, you might have a problem.

The reason we’re talking about systems is that we are long past the point where enterprise legal needs can be fulfilled by individual lawyers, sequentially and in single file, working in longhand and billing by the hour. As this book has made clear, both the sheer scale and the growing complexity of companies’ legal and compliance challenges require equally scaled and complex solutions. Enterprise clients compete in high-pressure environments and operate within unforgiving timeframes. They cannot be served in the same way you would serve a family business or a private client.

That’s going to have a profound impact on the types of people who will be drawn to this sector of the legal market. Systems analysts, software coders, design thinkers, and engineers of all kinds will be a natural fit for enterprise legal. People who can grasp the big picture of what the client needs, who can envision processes and flowcharts and logic statements that generate solutions to those needs, and who can build and maintain robust frameworks to contain and run those solutions rapidly, repeatedly, and reliably — those will be the architects and superstars of the enterprise legal market.

If you feel that the foregoing characteristics don’t describe you, then it’s possible that your legal destiny lies in a different direction. But don’t walk away yet! Because it’s also possible, and maybe even likely, that there is a place for you in the enterprise legal market — an important place, in fact.

Analysts and coders and engineers can capture the big-picture needs of a major enterprise client, and they can design and build astonishingly complex systems to meet those needs. But there’s still a role for human judgment here, because no matter how inspired and intricate a system might be, there are two questions that must constantly be asked about it:

  1. Is the system doing what it’s supposed to do?
  2. Is what the system is supposed to do actually the right thing to do?

To be clear, many engineers and software architects have not only the skills required to envision and build effective systems, but also the talent required to monitor, scrutinize, and judge those systems. But not all of them do. The “how” of a system is not the same as the “why” of a system, and both of these inquiries need to be made of, and met by, a legal system on a regular basis. We’ll want to have different people with different skill sets making those inquiries.

Legal systems also age and atrophy and degrade over time. Minuscule errors crawl inside and inaudibly misdirect the intended flow of data or invisibly unravel the logics underlying the processes. Since we can’t see or hear the initial errors, we need to watch the results, over and over again, and ask ourselves whether our incredible machines are delivering their intended solutions and client outcomes. That will require the attention of people who:

  • can detect patterns within a system and find emerging variations therein,
  • have built strong relationships with clients that allow them to understand their goals and priorities, and
  • can integrate these two bodies of knowledge into an effective system assessment regime.

Those are lawyer skills, and they will be needed in the enterprise legal market. But there’s more; there’s also the need to ask whether a system that’s doing what it was built to do is achieving what it ought to be doing.

It’s a delightfully complex system. What’s it for again?

A powerful and widespread misconception is that if a machine or a system is generating results, those results are necessarily good and trustworthy, because the machine or system is unbiased and objective. You’ve probably heard someone cite the results of some automated process or other as proof in an argument or to defend a political position: “It’s all math, and the numbers don’t lie.”

But it’s not all math, of course, and it never has been. There are already countless examples of how sexism and racism is baked into algorithms and processes by programmers who don’t believe they themselves are sexist or racist, but whose experiences and biases inevitably guide their “objective” decisions.

This problem will become worse as machine learning and data-driven decision-making spreads to judicial, regulatory, and administrative systems (especially for poorer individuals who can’t afford customized assistance). A system that performs exactly as it’s designed, but that keeps rejecting valid compensation claims from people with non-Anglicized surnames, is a bad system. But will anyone notice?

The future of law, especially enterprise legal services, is without any doubt systemic. But systems need people to run them, to remedy them, and to remind everyone else that we build systems to serve people’s interests. And that brings us to our next point.

2. Service

The law is a service profession. Both historically and etymologically, the very notion of “profession” is grounded in service towards others for the greater good. If you’re a lawyer, your central purpose is to serve other people and make things better for them — principally your clients, but not exclusively, and not to the intentional detriment of others.

Now, if you’re engaged (or you plan to engage) in the enterprise legal market, where you’re working for corporations and institutions and governments, you might think the foregoing homily doesn’t apply to you. That kind of thing is for lawyers in family law, or wills and estates, or criminal defence — “People Law,” as it’s been described. Your job, by contrast, is to help grow shareholder value, or improve brand penetration, or eliminate unwanted efficiencies. You don’t serve people so much as you serve productivity. Right?

Well, you can answer that question for yourself. But if I might suggest something for your consideration: No matter how massive and global your clients, no matter how complex and high-value the transactions, no matter how sophisticated and AI-driven the systems you’re using, it’s all People Law. Shareholders are people. Employees are people. Individuals whose lives are irrevocably altered by enterprise legal decisions are people. And you’re not allowed to conveniently overlook them in pursuit of your legal duties.

I don’t think it’s deeply controversial to note that in many parts of the world, perhaps including the place where you’re reading this book, the quality of both private lives and public infrastructure has deteriorated throughout the last few decades. In a world where capital outperforms labour by a widening margin, the rewards of ever-greater productivity are shared by an ever-smaller number of people. Many influential individuals seem to believe that economic productivity should be society’s highest goal. They’ve forgotten that both private corporations and public institutions were created in order to make people’s lives better. They were built to serve us, not the other way around.

I have some news for you, and you can decide if it’s good or bad news: One of your functions, as a lawyer for the people who’ve forgotten this truth, is to remind them of it.

When a corporation or an institution repeatedly crosses the line of acceptable conduct and ends up ruining itself and others, a question that invariably arises in the aftermath is: “Where were the lawyers?” The answer, in most cases, is that the lawyers were either helping to facilitate the client’s actions on its road to ruin, or were studiously looking the other way, having persuaded themselves that it wasn’t their job to challenge the sustainability or wisdom or even morality of their client’s decisions. That the role of a lawyer is to make happen what the client decides should happen. That their job is to serve power, not speak truth to it.

That is the wrong conclusion to reach. It’s wrong because it flies in the face of a lawyer’s ultimate duty, which is not to his or her client but to the rule of law and the courts. It’s wrong because it surgically removes ethical and societal factors from the lawyer’s consideration, transforming the lawyer into a rote enforcer or a random subroutine in the larger system of productivity. And it’s wrong because many people, both inside and outside the corridors of power, can sense when something the client is doing isn’t quite right, and they will look to see what the lawyers are doing — and if the lawyers are simply sitting quietly with their heads down, then that’s what they’ll do as well. People follow our lead in murky ethical situations, whether we want them to or not.

You think maybe a good lawyer could have made a difference at some point?

I’m not talking merely about the obvious kinds of scandal and self-dealing, which make even the most battle-hardened lawyer pause and think things over. I’m talking about the unexamined assumption that if the client wants to do something in order to enhance shareholder value, that is the highest and ultimately the only goal worth considering, regardless of the human or social or environmental consequences.

This challenge is made even greater by the rise of systems in the enterprise legal space. It’s easier to call out bad behaviour by an individual than it is to call out bad programming in a system that “objectively” issues eviction notices to the most vulnerable members of the community. There is a role for the lawyer of a commercial client to flag the negative social consequences of the enterprise’s activities, to bring them to the attention of the client’s leaders and insist that they look closely at the human costs of those activities. Maybe the lawyer’s duties extend no farther than that. But they certainly do not extend any less.

Believe me when I tell you that enabling or tolerating socially corrosive activities is the most pernicious trap into which an enterprise lawyer can fall. And it is especially dangerous because it disguises itself as “service to the client,” a salve to your conscience and a False North to your moral compass.

So you need to remember, throughout your life as a 21st-century enterprise lawyer, that if you silently endorse or willingly enable a client to advance its own interests through harm to others or to the obviously greater good, you are losing your way. And as we’ll discuss in the next section, you are also in danger of losing yourself.

3. Self

Early in my career as a legal magazine editor, I wrote in an editorial that the most important person in your law practice was your client. Shortly afterwards, I received a letter from a health and wellness expert who took exception to that idea. The most important person in your law practice, he said, is you. Upon reflection, I’ve come to believe he was right.

It’s easy to overlook this fact — and at times, it can even seem noble to do so. Haven’t I just finished saying that the ultimate role of a lawyer is to serve others? Doesn’t this suggest that a lawyer should strive to diminish herself or himself, to substitute the good of others for the good of ourselves? That seems like it should be an attractive notion to a serving profession.

But self-diminishment and self-negation have proven to be destructive in all walks of life, and especially so in service-oriented professions like medicine and the law. What we need instead is a more fully developed sense of how we should regard our selves, and where we should place our selves, within the dynamic array of needs and priorities of the 21st-century lawyer.

Technology makes this goal more important, not less. The very first promise of the machines we build has been that they will make our lives better — that they will save us time and energy, allowing us to devote these precious resources to enhancing our freedom, leisure, and personal advancement. Raise your hand if you feel like technology has gifted you abundantly with these assets. Raise your other hand if you look forward to the rollout of a new technology in your office and how much you’ll enjoy the extra time it will provide you.

The truth, of course, is that even those technologies that really do save us time and effort rarely do so to our benefit, but rather to the benefit of our employers. Think of all the amazing technologies that have arrived in the law over the last couple of decades, from document automation to contract drafting to e-discovery: Have lawyers enjoyed a windfall of unallocated hours and clear horizons with which to better ourselves and those around us, or to engage in more fulfilling and higher-value endeavours? Or have those “freed-up” hours been immediately captured by others and filled with ever more work, all in service of “greater productivity”? Especially if you work for an employer who measures your productivity in hours billed, and for whom “freed-up time for you” is the last thing they want?

Machine learning and artificial intelligence are going to amplify and accelerate these trends and concerns. Remember that email from the legal tech company I quoted at the start: “AI has once again triumphed over a human lawyer.” Guess who the human lawyer in this story is.

So long as the prevailing philosophy of the corporate world is to prioritize profits over people, it’s going to be your responsibility to look out for yourself — and to look out for your self. There are two areas in particular where you need to focus your efforts.

One is the broad category of your health and wellness. You have to safeguard and strengthen them both. Previous generations of lawyers failed to do that, and they left countless unhappy lives, broken marriages, emotional breakdowns, and substance addictions in their wake. Quite possibly you were raised in a home afflicted by these ills; if not, you almost certainly know someone who was.

Now it’s your turn to run this gauntlet — but you can do better. You can reject the proposition that your highest or only function is to be a cog in someone else’s machine, to forever be on call for those who pay your wages, or to substitute your client’s judgment for your own on a daily basis. You can instead assert that your physical health, mental wellness, and emotional stability have value, apart from and above your work. You can invest in your health the way previous generations invested in CLEs and association memberships. This will pay off throughout the course of your legal career and your life.

But there’s another way in which tending to your self will be important: In understanding and applying your own unique value proposition as a lawyer.

The ironic effect of the rise of automation and systems in the law is that lawyers’ human qualities will actually become more important to employers and clients. Job interviews in the near future are likely to feature the question, “What can you do that our machines can’t?” Previous generations of lawyers shared a common set of basic skills that are now being automated and systematized, which means that from now on, a lawyer’s personal distinctiveness will be more valuable than ever. Your unique humanity will be your best selling point.

In a sense, this challenge will also be the great opportunity for your generation of lawyers. You’ll be able to re-engineer the blueprint, or reformat the DNA, of what it means to be a lawyer. But be warned: As systems and software proliferate, you will constantly be tempted to serve the machines that were created to serve us, to prioritize productivity over people.

You’ll have to resist and reject that temptation. You’ll have to lead the evolution of the lawyer’s role back towards the enforcement of positive social norms, the enshrinement and protection of personal dignity, and the pursuit of service to the improvement of lives. That leadership might be the greatest legacy of the 21st-century legal careers that you will build.

Conclusion

One final thought as we close this book. The greatest responsibility of being a lawyer is that what you do and say matters to many people, far beyond those who pay you for your services. It also happens to be a lawyer’s greatest privilege. That’s always been true of the legal profession, but the clarity of that truth will be especially evident in the 2020s, 2030s, 2040s and 2050s — throughout your legal career.

So here’s what I’d very much like you to remember: What you do matters. Who you are matters. When you speak out, it has an impact. When you fall silent, that has an impact too. Do not let yourself get lost in the noise and complexity of the machine; do not lose sight of the primacy and power of true service; do not lose who you are, and who you could be, amid the upheaval and disruption to come. Out of this chaos, you can forge new meaning and greater purpose. Out of the end of one era in the legal profession’s history, you can launch the start of another.

Your time is nearly here. The rise of the machines is almost over. Now it’s time for the rise of the lawyer.

You’re up.

How to save the lawyer development system

I bring news from the places where lawyers gather. In addition to presenting at several law firm retreats in 2019, I’ve also spoken to meetings of law firm administrators, law firm knowledge officers, legal industry analysts, and law students and professors. As you might imagine, these are disparate groups that tend not to agree on a whole lot.

Yet consistently, in audience questions and hallway conversations, one common concern kept arising at all these events — that the lawyer development system is in serious trouble and could be headed towards collapse. This post is intended to describe the problem and propose potential ways for us to avoid what might otherwise be a professional disaster.

Let’s start by defining our terms. By “lawyer development system,” I mean the structured yet largely informal process by which a law student on her first day of classes eventually becomes a confident, competent lawyer providing legal services of value to clients. Obviously, this process stretches well beyond one’s call to the bar: Way back in 2010, I suggested that it takes seven years for a first-day law student to reach that point, although in a brief survey I conducted in 2017, some lawyers said it took an additional five to ten years after graduation before they felt like a “reasonably confident and competent lawyer.”

So by these lights, the lawyer development process requires anywhere from seven to thirteen years of a person’s life, starting from their first day of law school. I need hardly point out that in most countries, we credential lawyers three or four years into that process and expect them to bill well over a thousand hours annually by the end of their fifth. Much of the lawyer development process, therefore, involves experiential learning on real client matters, long before the point of confident competence has been reached.

Most importantly, responsibility for the lawyer development process is diffused throughout the legal ecosystem, with no single entity holding full authority over and answerability for the process and the results. This is what I mean by “structured yet informal” — if it takes a village to raise a child, then it takes an entire legal market (including law schools, bar examiners, law firms, and clients) to raise a lawyer, without anyone technically in charge of the whole process.

Current state of discussions about the lawyer development system.

I personally think that’s a pretty ragtag way for one of the world’s great professions to sustain itself. But to all the criticisms we can level against this system, one defence is hard to refute: It works. Lawyers are here, and we provide people with legal services, and the world hasn’t ended. It might not be a thing of beauty, but the system works.

Until it doesn’t. What people in law firms and law schools have been telling me over the course of this year is that they’re deeply worried about the lawyer development system. Specifically, they’re saying: “We don’t know where the next generation of lawyers is going to come from.”

Let’s start with one of the legal profession’s oldest truisms: Law schools don’t teach people how to be lawyers. Not only is this inarguably true, I don’t see how it could be otherwise. If it takes an average of 7 to 13 years to really “become” a lawyer, law school can do no more in its three years than get the ball rolling. Law schools are not set up to teach people how to deliver legal services to clients, and they can’t be reconfigured to play that role without gutting them and converting them into completely new entities. If we want to have lawyer development academies that mix classroom instruction with supervised work opportunities for ten years before granting a license to practise law, that’s fine; but that’s not the world we currently live in.

And anyway, law schools haven’t had to “teach people how to be lawyers,” because the profession has effectively outsourced this job to the private sector. Most lawyers’ early development time — say, between three and eight years after their first day of law school — is spent working for more experienced lawyers (usually in law firms) rather than directly for clients. The well-worn path looks like this:

  • Step 1: Get hired as a new associate at a law firm.
  • Step 2: Work really hard.
  • Step 3(a): After a period of six to twelve years, accept an invitation to join the equity partnership, after which you can continue to work really hard while getting a cut of other lawyers’ revenue.
  • Step 3(b): Alternatively, anytime between the first and twelfth year on the job, leave the firm to join (i) another law firm, (ii) a corporate or public-sector law department, (iii) sole practice, or (iv) some other type of employment inside or outside the legal market.

I expect that would describe the path into the legal profession for at least 90% of the lawyers reading this post, as well as for their colleagues and supervisors. It’s so ingrained into the profession that we scarcely notice it anymore. We take it for granted that once we leave law school, a wide range of private businesses will welcome us into the working profession and pay us an annual salary to bill thousands of hours to clients while learning the intricacies and nuances of law practice.

Not every law firm does a good job of developing lawyers, of course. At many law firms, the quality of these early years of lawyer development is pretty abysmal: On-the-job experience substituting for actual training, trial-and-error learning taking the place of mentored instruction, and crushing billing pressures outweighing almost all other considerations. But this system more or less does the job of getting new law graduates from knowing nothing about law practice to knowing something about it, inside a (relatively) quality-controlled environment.

To be clear, law firms don’t play this critical role in the lawyer development system just to help the legal profession. It’s not an act of charity. They do it because they can bill their associates’ time spent working on basic, low- to medium-level tasks, pay them less than the revenue they generate, and pocket the resulting profits. And even though attrition will cost them most of these lawyers over the years, one or two will make it through this gauntlet ready to buy equity in the firm and keep the place solvent for another year. The rest of those new hires will eventually fan out across the legal market and keep the lawyer landscape populated.

This entire system, however, with all its benefits and faults, rests on a single and increasingly fragile foundation:

  • Step 1: Get hired as a new associate at a law firm.

Law schools, bar admission personnel, and (without realizing it) clients all assume that law firms will keep doing what they’ve been doing for years: Hire new lawyers and show them the ropes. The entire lawyer development system hinges on law firms acting as that bridge out of law school. If law firms were to stop doing that, or even to severely curtail their new-lawyer hiring, it’s not an exaggeration to say that this system would simply break down.

I submit that we’ve already entered this process, right now. It looks like this:

1. The “low- to medium-level tasks” that used to occupy associates’ time have been migrating from law firms to more cost-effective performers such as software, ALSPs (including a growing number of law firm spinoffs and subsidiaries), and clients themselves. These tasks are routine and highly procedural, yet law firms still want to perform and bill them the same way they perform and bill highly specialized partner tasks. That value mismatch means firms have difficulty competing for this work. The US economy has been surging for almost a decade, yet “the overall growth trend for demand for law firm services [in that time] has been essentially flat to negative in every year.” That lost demand for law firm hours is very probably “associate work” that is no longer being given to associates.

Courtesy Prof. William Henderson. Click to enlarge.

2. As the volume of (formerly) “associate work” coming to law firms declines, firms respond by employing fewer new lawyers. It’s not as if firms actually need more than a handful of new associates in any given year to become future partners — the rest are hired only to bill hours, and if there are no hours to bill, why hire them? The essential Prof. Bill Henderson crunched the data last year and found that the number of entry-level jobs in private practice in the US declined from 20,611 in 2007 to 16,390 in 2017, a 20% drop. Large law firms, which shoulder about a quarter of first-year lawyer hiring, brought in 139 fewer first-year lawyers in 2017 than in 2007, even though these firms’ non-first-year lawyer population grew by nearly 40% during that time (from 65,212 to 90,867).

3. Now consider that the migration of low- to medium-level tasks from associates to more efficient providers has only begun. The development of technology for automating basic legal work is accelerating, along with growing acceptance (by both buyers and sellers) that legal work should be carried out by the most appropriate performer or platform. The Law Society of England & Wales studied this phenomenon and concluded that “the number of jobs in the legal services sector will be increasingly affected by automation of legal services functions” — in fact, it estimated that over the next 20 years, the equivalent of 67,000 full-time legal jobs will be consumed by technology. Note that the US has about 10 times as many lawyers as does England & Wales.

In “Legal Professionals of the Future: Their Ethos, Role and Skills,” Prof. John Flood writes that “the effect of automation here could be dramatic, in that if junior associates were to be gradually culled from firms, the entire reproduction of the legal profession could be jeopardized, since law firms are structured around associates being promoted to partnership.” Joe Patrice at Above The Law calls this the path towards “the death of the junior attorney,” writing: “Sooner rather than later, firms are going to slow their junior hiring and focus on a narrower range of candidates. … If the training regime for young lawyers isn’t addressed, the population of competent attorneys … will simply dry up.”

Are law firms aware of this issue? Of course. But they are neither structured nor incentivized to do anything about it. They are far more interested in acquiring established partners with mobile clients to boost immediate revenue (even though those efforts frequently disappoint), in shrinking the size of the equity circle (thereby growing profits for those inside), and delaying partnership admission for their remaining associates as long as possible. They are fixated on maximizing short-term partner profitability, and first-year associates could not be further removed from that goal. Rightly or wrongly, law firms do not consider the future of lawyer development to be their problem. They are increasingly less willing and less able to take on this job.

As it turns out, this is your circus and these are your monkeys.

So whose job is it? I come back to my initial observation that the lawyer development system has been outsourced to and diffused among many different stakeholders. Each of those stakeholders will be happy to tell you that it’s someone else’s job to train and develop lawyers; none of them wants to step up and take on this immensely important (and expensive) responsibility. But the outsourced-and-diffused solution has just about run its course, and something has to replace it — something unified, principled, systematic, and clear about its purpose and goals.

For my money, there’s only one correct answer to the question of whose problem this is, and who is responsible for finding a solution. In a self-regulating profession, responsibility lands squarely on the professional regulator. Whether that’s a state bar, a state court, a law society, or a special regulatory board, this entity is statutorily charged with ensuring that the lawyers who deliver legal services to people and businesses are competent, trustworthy, and reliable. That is job #1. If the entity cannot do that, then it might as well close its doors and forfeit professional self-regulation to the government. (Governments might be only too happy to take on the job if they feel lawyers aren’t up to it.)

Too many regulators are currently obsessed with pursuing “unauthorized” legal services providers, or with defending their own territory, or even with laudable goals like increasing access to justice. I submit that none of these activities is as central to the self-regulatory mission as saving and enhancing the lawyer development system, and I believe that regulators should make this their primary focus immediately. Governments can punish malevolent or rogue legal providers through criminal prosecution, and they can increase access to legal services by legislating open markets and restoring public funding for legal aid. But only lawyers can fix the lawyer development system.

How could we go about this? Here’s one suggested route forward for a professional legal regulator to consider.

  1. Drop all the extraneous activities and functions described above and concentrate your limited resources and political will on this subject.
  2. Identify the core professional competencies lawyers must possess at various stages of their development. Canada and Great Britain have already done this for you, although neither jurisdiction has yet implemented these competencies as part of their lawyer admission regime.
  3. Accredit any educational or training institution that will develop these competencies in lawyers over a minimum period of five to seven years at the start of lawyers’ careers. Inform law schools that they can keep their accreditation if they agree to deliver these competencies and prove they can do so.
  4. Invite law firms interested in participating in the development of competent lawyers to submit detailed plans for the hiring and close supervision of lawyers, in conjunction with an accredited competence delivery institution.
  5. Credential lawyers in stages, much as novice drivers are allowed to drive only at certain times and with adult passengers, or as medical interns are licensed only to carry out certain basic procedures. Abandon the absurd fiction that a newly called lawyer is entitled to do anything a veteran lawyer can do.
  6. Be fully transparent about this process to government and especially to the public. Let people access detailed assurances about the nature, quality, and reliability of what they’re getting when they hire a lawyer.

The foregoing is only an outline, and professional development experts can surely improve on it. But I don’t see that the task in front of us can be accomplished by anything much less radical than this. Law schools would fall and rise, creating a brand new educational landscape for lawyers. Professional self-regulation would be transformed into what it should always have been: keeping our own house in order so that society is demonstrably and thoroughly well-served by lawyers. Lawyers themselves would become confident and competent much earlier in their careers, accelerating their timelines for delivering real client value and improving their mental and emotional well-being in the process. By resolving one impending crisis, we can tackle and solve many other lingering problems.

It’s time to stop blaming law schools for not doing regulators’ job. It’s time to recognize that law firms won’t do this job anymore and shouldn’t anyway. It’s certainly past time to stop making clients do this job through lawyers’ trial-and-error learning process. It’s time the legal profession took the privilege of self-regulation seriously by unifying, clarifying, redesigning, and transforming the lawyer development system.

After the millionaires

Earlier this week, I was gifted with the opportunity to join Mark Cohen and Mitch Kowalski on a webinar panel addressing a course in law firm management for international exchange students at the Bucerius Center on the Legal Profession in Hamburg, Germany. I had the enviable task of opening the panel with remarks around the theme, “What’s ‘broken’ with the classical way of doing things in law?”

In case it’s of any interest to you, especially if you’re just entering the legal profession or on the cusp thereof, I thought I’d pass along my speaking notes, lightly embellished with other observations I offered during the subsequent Q&A period.

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Richard Susskind has come up with many observations about why it’s so hard to bring about change in law firms. His most famous observation is one you’ve probably already heard: “It’s very difficult to tell a roomful of millionaires that their business model is wrong.”

I can attest to the truth of that statement, but there’s something important about it that we often overlook: The room is full of millionaires. And they’re millionaires for a reason: Their business model has been insanely successful.

Look at the AmLaw 100, the most profitable law firms in the United States. You have to go down to #75 on the 2018 list before you find a firm where the average equity partner took home less than US$1,000,000. That’s the average. At least half the partners in the top 74 firms took home more than that.

I like my job, I’m pretty good at it, and I’m one of a handful of people in the world who gets paid to do it. But I can tell you that I’m not making a million dollars this year and I don’t anticipate doing so anytime soon.

We now take you live to the AmLaw 100.

I think we need to grapple with these millionaires in the room and figure out what they mean for the legal innovation project. This isn’t just because of the obvious difficulty in persuading rich equity partners to abandon a business model that puts Porsches in their garage. It’s also because those Porsches themselves constitute a pretty good argument that the business model is actually right. It has made tens of thousands of lawyers amazingly rich. So what’s the problem?

From my point of view, the problem is twofold.

The first element of the problem is that the law firm business model has been amazingly successful and remunerative only for an exceptionally small number of lawyers. The great majority of private-practice lawyers work in firms of 20 lawyers or fewer, and most of them do not make a million dollars a year. Many of them earn in the low six figures, sure — but so do good electricians and senior civil servants. Quite a few lawyers earn less, sometimes much less, than $100,000 a year. And almost all lawyers, regardless of income, work really hard, sometimes as hard as the ultra-rich ones who are fortunate enough to have clients with very deep pockets.

The financial rewards of law practice are very unevenly distributed. That’s something law students aren’t often told, but it’s important to keep in mind as you start your careers. A few of you will win the fabulous compensation lottery. The rest of you will be over here with us, redeeming the cup-of-coffee consolation prize. The law firm business model is a runaway success only for a select few.

And rest assured, the millionaire lawyers have paid the personal price required to get there. I’ve known law firm partners who kept photos of their spouses and children on their desk, and thought to myself that they do that so they can remember what those people look like.

The second element of the problem, and I think the more significant one, is that the conditions that allowed many of these lawyers to become millionaires are starting to pass away. The traditional law firm model developed in a particular set of market circumstances. A new set of market conditions is now emerging, and the traditional firm is not really set up to deal with them.

This is an important point: It’s not that the law firm business model itself has suddenly stopped making sense. It’s never made that much sense, really. In most markets, working however you liked and charging whatever you wanted while passing on all your costs to your customers is not normally a winning proposition. But it works very well when you, as the supplier of services, enjoy:

  • exclusive access to the tools that allow people and businesses to accomplish their goals,
  • the exclusive right to sell these services, since you also have the right to regulate new competitors,
  • a client base that experiences extreme difficulty when trying to value your services, and
  • a client base lacking the knowledge, agency, and confidence to assert themselves with you.

In those circumstances, your biggest problem is not how to make money, but how to spend it all before the next truck full of it is dumped on your lawn.

But those circumstances are changing, and with them, the environment in which legal services are bought and sold is being gradually transformed. Call it “legal climate change,” if you like. The law firm business model is a lovely flower that developed and grew tall in the bright sunshine and gentle breeze of a long, lazy summer. But as they like to say in Westeros, winter is coming.

Here’s what’s the market for legal services has been experiencing over the past decade or so:

  • the emergence of new providers of legal services and solutions other than lawyers and law firms,
  • the decreasing relevance of regulatory restrictions against “non-lawyer” legal service provision,
  • the evolution of alternative fee approaches by which legal value can be identified, measured, and priced, and
  • the growth of clients’ confidence in asserting their rights as full participants in their legal solutions.

Lawyers and their law firms need an answer to these challenges. So far, they’ve found very few — mostly, I think, because they haven’t been looking all that hard. The millionaires aren’t looking, I can assure you. They have their eyes squarely focused on their own rapidly approaching finish lines, and they have no interest in accelerating the decline of the machine that prints money for them.

These lawyers are invariably older than average — in some cases, really old. And old people know better than most what the approach of winter feels like. They’re the ones who come up to me following my presentations and say, “I’m really glad I’m retiring in five years.” How delightful for them — I hope they enjoy their remaining years of practice and that lovely summer home in Tuscany they’ve had their eye on. But it doesn’t do much for the younger people they’re going to leave behind.

Soon enough, Richard Susskind’s problem will be solved in the simplest fashion possible: The millionaires will get up and leave the room themselves. Some will go willingly. More of them will go reluctantly, sometimes bitterly. A few of them, to be blunt about it, will be carried out — I’ve heard a number of lawyers “jokingly” say they intend to leave their firms feet-first. The millionaires will move on — though I wouldn’t count on them to be especially gracious about it.

But when that happens, it will leave the room, and the challenge, and the opportunity, to those they’ve left behind — to you. As you contemplate that inheritance, and mull over whether you even want it and what you would do with it if you did, I’d like to offer a few points of advice in closing.

  1. You don’t have to accept the model that’s been bequeathed to you. It was built by people with different values and priorities than you, in a different world than the ones you’re going to inhabit. Identify and retain the good and the valuable in that model. But be ready to jettison whatever lacks value to you or to your clients, and don’t second-guess yourself once you do.
  2. You should strive to incorporate other professionals and technicians into your new model, both internally (for productivity and quality) and externally (for client service and value). The future of legal services provision is multi-disciplinary. I don’t really care, to be honest, whether everyone in your room ends up a millionaire. But do not allow everyone in your room to be a lawyer.
  3. When building your new model and approach to selling legal services, start with clients. Go out and talk to people about their legal affairs, to business owners and managers about their legal challenges, and listen to the answers. Do not build your new models on the bones of the ones that came before you, or on the latest high-minded theory or management fad. Build them in response to the real needs of real people in the real world.

If you build legal services businesses that respond to current and future environments, to the needs of the clients in the markets that you want to serve, then what you build will be successful and sustainable. That’s all anyone can ask — and really, it’s all you’re ever going to need.

The revenue-neutral associate

Last month, while writing an article about professional development in the law, I impulsively posted the following question on LinkedIn:

Quick survey for those of you who began your careers as law firm associates: How many months and/or years did it take before you felt like a reasonably competent and confident lawyer?

Use anytime during your first five years in practice.

The answers came rolling in — more than two dozen in a couple of days. The lowest number of years offered was two, the most was ten, but the frequently cited median was five. Only one person said they never felt unready for law practice; everyone else said, essentially, “It took me years to feel like I knew what I was doing.”

Yes, small sample size and all that, but I think there’s a lot you can take from this. One takeaway is solace: If you felt overmatched and out of place during the opening months and years of your legal career, you were far from alone. Another is insight into the lawyer mindset: For all we try to project confidence in ourselves and our abilities, most of us suffered from impostor syndrome for years after our call to the Bar, and I’m sure many of us still do. A third is confirmation that, yup, law school really does do a terrible job of preparing us to be lawyers.

But what those results also affirmed for me was a strong suspicion I’ve harboured for years now — that expecting new law firm associates to perform billable work is kind of ludicrous.

There’s a widely held assumption in law firms that new associates should be billing hundreds of hours within their first months on the job, and many thousands of hours within their first two or three years. At more than a few firms, an associate’s failure to meet his or her first-year billing targets can permanently dim that lawyer’s prospects in the eyes of management or can even result in early termination. Associates learn this quickly, and drive themselves to generate work that can be added to a client bill regardless of its utility. Because most new associates possess low skill levels, their work product tends to be either (a) utterly rote and low-value, (b) riddled with errors, (c) subject to massive editing and/or discounting by partners, or (d) all of the above.

Clients, of course, figured this out years ago. Some of them indirectly advised firms of the problem when they began refusing to pay the billed hours of first- and second-year associates. Those clients without the confidence or leverage to withhold payment on first-year bills pushed for discounts or just gritted their teeth and signed off. But the message they were sending was the same: “Your least experienced people add very little to your value proposition. We don’t want to pay for their efforts. You should do something about that.”

Firms say they are doing something: investing in professional development, sending their new associates off for business training, and so forth. I’m sure many of these activities pay at least some dividends immediately, and others further down the line. But almost all these efforts share a fundamental drawback: they treat associate professional development as a part-time endeavour. Taking courses and acquiring skills is something associates do in between their “real work” of serving partners and billing hours. They’re expected to generate billable work with 90% of their time while slowly learning how to produce that work in the other 10%. It’s like having to earn a living as a cab driver while still enrolled in driver training school.

This drawback, in turn, is founded on a more serious issue: the common belief throughout law firms of all sizes that inexperienced, low-skilled lawyers should be generating revenue within weeks of their arrival in practice. Law firms that push law schools for better “practice preparation” and train their new associates intensively upon arrival are certainly trying to do right by their associates and their clients — but their good efforts nonetheless stem from an assumption that new lawyers should be “ready to bill” at the earliest opportunity.

I wonder if that’s realistic, and I wonder even more if that’s healthy. I don’t think a person can switch from being a full-time student (even an articling student) to a full-time fee-earner that quickly without experiencing some mental and emotional whiplash. By forcing new lawyers into high-target fee-earning roles this early in their careers, we’re trying to radically accelerate a development process that’s meant to take much longer — maybe as long as five or ten years.

My modest suggestion, therefore — especially modest because I suspect few firms will adopt it — is that law firms consider re-envisioning the role of the new associate, de-emphasizing the importance of billing and emphasizing instead the primacy of training and experience. What I’m suggesting is the revenue-neutral associate.

Maybe not this kind of training day, though.

For at least their first two years in the firm, possibly longer, make the development of skills, knowledge and experience the primary activity and responsibility of new lawyers. Enroll them for months-long training in process improvement, customer service, business management, and new technologies, testing them at regular intervals throughout this period to assess their progress. Send them to client meetings to watch and listen and report back on what they learned, at no cost to the client. Take all the piecemeal, intermittent professional development that law firms provide to associates in between their “real work,” and make that their real work. Take seriously the process of turning raw prospects into polished professionals, because it’s really not a part-time exercise.  (I argued almost ten years ago that we should consider the lawyer development process to be seven years of education and practice, not just three years of education).

Can firms bill their associates’ efforts during this period? Yes, but only work that has legitimate value, and only to the extent necessary to help the firm to recoup some or most of the lawyer’s costs — that is to say, his or her salary, benefits, and associated support costs. That might come to only a few hundred hours in the first year, several hundred in the second, a thousand or more in the third — although smart firms will be pricing their associate-level work on a non-hourly basis anyway, making it even easier to support this kind of role. 

The goal of a revenue-neutral associate program should be that at the end of the designated period — two to four years — the new lawyer has been rigorously and professionally educated, mentored, trained, and skilled to such an extent that he or she can deliver real (if not extraordinary) value to the firm and its clients — and that in doing so, the lawyer has undertaken enough billable work to help cover his or her training costs for that period. A lawyer developed in this fashion will be equipped to provide much more valuable and expensive services than a typical third- or fourth-year associate who has had to figure things out on the job under tremendous billing pressures — if the associate has even stuck around that long.

Would this approach be workable for a $180,000 first-year associate? No — but then again, the $180,000 associate is a market abnormality based solely on big law firms’ desire to draw the attention of the most attractive law school graduates. The reality is that no $180,000 associate, no matter how smart or hard-working, is worth his or her salary — and the billing pressure firms place on these young people to justify their inflated salary damages these assets in their formative years. A revenue-neutral associate would be paid in line with greatly reduced billing expectations — and the promise of much higher-earning potential after a few years of high-calibre development. 

There is precedent for this idea. Back in the late 2000s, firms such as Frost Brown Todd, Ford & Harrison, Drinker Biddle & Reath, Strasberger & Price and the late Howrey LLP all experimented with “apprenticeship models” by which new associates were paid less but received extensive training and mentoring. It was a good idea that unhappily arrived ahead of its time — these programs were launched during the post-crisis recession, when it was hard to persuade new graduates to turn down high starting salaries in favour of lower-paying “training opportunities.” It’s a different world now: Graduating lawyers understand that they need marketable skills and know-how in order to have sustainable legal careers. Law firms that can offer a path to that future will have a competitive recruitment advantage.

This would, obviously, be a major change in how law firms view and use their associate lawyers. But I also think it’s a necessary, and in fact an inevitable one. For decades, law firms have been getting their clients to pay the training costs of their newest and lowest-skilled workers. No other business has the gall to do this — to send customers bills for all the low-value puttering around by the firm’s least useful employees and justify it as “training.” It’s not training — it’s years of immersion in the law firm’s least valuable and interesting activities, subsidized by the client.  

But now that train is coming to a halt. You know all about the myriad game-changing substitutes that have entered the legal market over the past decade — technology that can carry out basic legal tasks, outsourced platforms of flex-time lawyers and managed legal services providers, insourcing of work by corporate law departments themselves. These alternatives have arisen precisely because the market is tired of paying law firms inflated rates for low-value work by low-skilled associates.

Clients want a less costly and more effective replacement for the labour of unskilled yet expensive junior associates, and the market has been more than happy to oblige — it is offering equal or better options for “associate work” at a superior price. These options are not going away; if anything, they’re gathering momentum and increasing sophistication. The hard truth is that the day of the billable young associate is drawing to a close anyway. 

So think about the possibilities of a “revenue-neutral” approach to associate hiring and training, and how it could change the nature of professional development in law firms for the better. Law firms will have to find a solution to their associate-lawyer challenges before too much longer. The sooner this option is considered, the sooner solutions can be tried and a new approach to law firm associate development can be found. 

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Don’t think like a lawyer

This article was just published in the “I Wish I’d Known” column in the October 2014 issue of Student Lawyer, a terrific publication of the ABA’s Law Student Division. My thanks to Marilyn Cavicchia and Darhiana Mateo Téllez of the ABA for the invitation and opportunity.

“You’re going to learn to think like a lawyer,” said one of my professors in the first week of law school. She didn’t mean it as the threat it turned out to be.

Law degrees might be three years long, but let’s be honest, you’ve begun thinking like a lawyer within one. I still remember, in that first year, walking past a tall ladder propped precariously against a city building and thinking not about the worker’s safety, but about his liability.

It’s a small, insidious change. You start to view others not as people, but as tortfeasors, claimants, or consignees — parts to be played, with fault to be assigned and damages to be assessed. Cases become puzzles, games: Spot the issue! Identify the error! Feel justified as you deny coverage to the quadriplegic accident victim who didn’t see the light turn red. Distance yourself from him with the insulating, all-excusing logic of the law.  [do_widget id=”text-7″ title=false]

Thinking like a lawyer is easy and fun. But I wish that “thinking like a lawyer” had been provided as a complement to my already-installed “thinking like a person” system, not as a replacement for it. I wish I’d been shown the off switch.

Equally, I wish that law school had gone on to instruct me in “feeling like a client.” Few lawyers, and hardly any law students, know what it’s like to be a client — the anxiety, the vulnerability, the isolation that accompanies a problem we don’t know how to solve and whose consequences could ruin us. Many lawyers forget this, if we ever knew it or felt it in the first place.

I wish there’d been a mandatory second-year course called, simply, “The Client.” And as part of that course, each student had to visit a local lawyer incognito for a 20-minute consultation about a hypothetical problem. And to come back afterwards to report: how were you made to feel? Like the subject of a human event, or the object of a legal process? Were you engaged, or just acknowledged? Looked at, or looked through?

And, oh man, the price. What it feels like to ask a lawyer the seemingly simple question, “How much will this cost?” And either the lawyer hedges and quotes an hourly rate that doesn’t help, or she actually drops a real number on you. And in 10 or 15 years’ time, if you’re financially successful, maybe that number won’t faze you. But today, as a law student, with debts and middling job prospects — that number will chill your blood. As it should.

Legal education is a powerful drug; but if you’re not careful, it can drown out your instincts, stifle your emotions, and numb your heart. Law school molds and enhances your intellect, but frequently neglects to enlighten and illuminate your soul. The damage is predictable.

Great lawyers are more than just brilliant tacticians: they’re instinctive, heartfelt, caring, and real. No matter what else you do in law school, start learning how to be a lawyer like that.

Jordan Furlong is a lawyer, consultant, and legal industry analyst who forecasts the impact of the changing legal market on lawyers, clients, and legal organizations. He has delivered dozens of addresses to law firms, state bars, law societies, law schools, judges, and many others throughout the United States and Canada on the evolution of the legal services marketplace.

A word in Spanish

Earlier this summer, I was asked by Mario Ferrer of Responsea, an online lawyer platform in Spain,  if I could answer a few questions for their readers, especially those who are just starting off in the law or grappling with the onslaught of technology. My brief replies sound much better and more elegant when translated into Spanish, as the resulting Responsea post demonstrates. But I thought you might be interested in reading the original English version, especially if you’re in the early stages of your legal career.

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1. How can a lawyer prepare himself or herself to prepare for the future?

There are three things every lawyer must know as well as possible in order to thrive in the new legal market:

1. Your clients. Understand their concerns, walk in their shoes, look at the world through their eyes. Identify their goals and hopes, worries and ambitions, so that you can advise them as well as possible. Help them anticipate problems and opportunities before they arise.

2. Your competition. Not all your competitors will be other lawyers: online providers and non-lawyer rivals will become more common in the next several years. But among lawyers, understand clearly who else wants to serve your chosen client group in your chosen area, and what they offer in terms of service and price.

3. Your business. Too few law firms have a sufficiently clear picture of how much they spend to provide their legal services. Fewer still have installed tools and procedures to help make their businesses more efficient and productive. Run your legal business to be as cost-effective and quality-controlled as you can manage, and always be aware of your cash flow.

2. How can a law firm be competitive nowadays?

You can’t be competitive for every client in every market for every type of work. You also can’t be competitive for work that just walks in off the street. You can only be truly competitive when you identify the specific type of work you want to do, for the specific type of client you want to serve, to accomplish specific sorts of outcomes or values for those clients. If you know all of these, and if you can explain why you’re the right choice in these circumstances, you’ll have no difficulty outclassing other firms in these areas.  [do_widget id=”text-7″ title=false]

3. Which are the priorities of today’s clients? Time, money …?

Clients want different things in different contexts: the multinational corporation and the single mother are obviously completely different entities. What all clients want, however, is peace of mind. They want a worry resolved, a pain eliminated, an opportunity filled, a step forward taken. How can you give your client peace of mind? Answer that question, and you’re well on your way to meeting the client’s priorities.

4. How can a law firm encourage its workers to adapt to the online environment?

Everyone now searches for everything on the internet. Vast numbers of people buy vast quantities of products and services on the internet. Having a weak or non-existent internet presence is like moving your law office out of a prime commercial office building in a major city and into an unmarked house on the outskirts of a small town. It’s really no more complicated than that.

5. Which are the most common errors committed by the legal sector on the Internet?

The failure of lawyers to offer products and services that are created and delivered partly or entirely through the internet is the error that will cost law firms the most in the years to come. Some legal services can only be delivered face-to-face, hand-in-hand, in person. But many, if not most, can be delivered partly or wholly online. If you believe the internet is useful only for hosting your firm’s website, then you’re going to miss out on some valuable emerging opportunities in the near future.

6. What would you recommend to a lawyer who decides to open an office on his or her own? 

Never assume that the legal market owes you anything. The market asks, of every provider who enters it, “Who are you, and why should I care?” You need to have an answer ready. Create a website that tells your chosen market who you are, what you do, who you do it for, and what results your clients will get from using you. Write posts on your website showing off what you know and giving people information they can use. Speak to gatherings of and in the communities you want to serve. Hang around afterwards to answer questions.

Act like a startup. Even better, act like you’re still in law school. Keep your costs under tight control. Be frugal and innovative: do more with less. Buy nothing unless it’s truly a necessity or truly an investment. Be humble. Be grateful. Be helpful. Be trustworthy. Be the kind of lawyer you’d recommend your parents hire. Be the kind of lawyer your grandchildren will boast about someday. Serve your clients and your community with integrity, class, and grace under pressure. Everything else will fall into place.

Jordan Furlong is a lawyer, consultant, and legal industry analyst who forecasts the impact of the changing legal market on lawyers, clients, and legal organizations. He has delivered dozens of addresses to law firms, state bars, law societies, law schools, judges, and many others throughout the United States and Canada on the evolution of the legal services marketplace.

Advice to associates about law firm efficiency

I recently delivered a webinar to a group of associates at one of my law firm clients, as part of the firm’s internal CPD and training program. (I referred them to my recent posts about associates, which probably didn’t make them very cheerful.) Among the advice I gave the associates was to start looking for opportunities to streamline their work, increase their efficiency, and reduce their own “cost of doing business,” in order to make themselves and their practice groups more competitive and effective.

This led one associate to send along a follow-up question, which I’ll paraphrase thus: “Is this my responsibility? What role should I realistically be expected to play in finding enhanced efficiencies in my practice? Do I wait to be directed by the partners, or by the IT staff?” It’s a good question, with an important subtext: “Come on. You seriously expect me to make my practice more efficient, billing fewer hours, without the direct approval of the partner who controls my career?” Here’s my reply:

My advice about efficiencies is primarily addressed to associates in your role as future law firm owners. Whether that’s as partners with this firm or in a different capacity (maybe running your own sole practice someday), you need to look for efficiencies and process improvements to begin reducing your own cost footprint, in order to maximize the profit derived from your revenue.

Now, if you’re running a business on a cost-plus pricing model (i.e., you multiply rate X hours, trying to maximize both in every situation, and bill the result), then efficiency is the enemy of revenue and therefore of profitability, and you should try to avoid it. This would be a sensible strategy if the year were 1993. But since it’s not, I don’t recommend it. By the time you become an experienced law firm owner (regardless of the firm), you’ll be confronted with a market that rejects cost-plus pricing for all but the most specialized, demanding, high-stakes work (and with all respect, the odds simply do not favour the idea that such work will constitute the bulk of your practice).

So I believe you should start, today, even as associates, thinking about and looking for ways in which you can reduce the cost-generating friction of inefficient work practices. If you can produce a flowchart or checklist that will allow you (and your colleagues) to carry out routine and repetitive matters more rapidly (and, by the way, likely at higher quality), you should do so. If you can identify free legal research resources (such as CanLII) rather than paying Lexis or Westlaw to look up cases, you should do so. If you can build and contribute to even a modest knowledge management database so that wheels don’t need to be reinvented every day, you should do so.  [do_widget id=”text-8″ title=false]

Fundamentally, associates should develop the habit of asking themselves, before embarking on any measure to carry out a legal task: “What if this were my money being spent? Would I consider it wisely and justifiably spent? Would I be asking about alternatives?” Thinking like a client is an invaluable skill to develop, and the best way to start honing it is to think about the client, all the time.

Now, this all comes with a giant caveat, and that is: you’re not yet the owners of a law firm. You’re employees, and your bosses are the owners who decide how work is done at the law firm and how it’s priced. Associates can’t independently give themselves the authority to decide how the law firm’s work should be carried out. That’s the law firm’s call, not yours.

Nonetheless, I also believe that you owe it to your employers, to your clients, and to yourselves to investigate efficiencies and process improvements at ground level that could reduce costs and/or improve quality — and having investigated and identified such steps, to bring them to the attention either of your immediate reporting partner or the firm’s managing partner.

That’s a formidable challenge for any associate, especially in this environment. So in order to relieve you of the burden of deciding when and where to report — as well as the intimidation factor of potentially bringing efficiencies to the attention of a partner who has no interest in them — I think the managing partner should require you to identify such steps and bring them to his or her attention on a quarterly basis. This places the responsibility for potentially disruptive discussions with the MP, not with highly vulnerable associates.

The firm must also do two other things:

  1. Take into account the process improvements identified by associates in assessing their productivity and contribution to the firm’s value — if these improvements reduce their billable hours and therefore their compensation, that obviously would be a perverse result.
  2. Provide the associates with complete protection from any political consequences that might flow from introducing potentially disruptive changes to the firm’s workflow practices — ideally, in fact, associates should be directly rewarded for helping to bring about such enhancements.

The upside of adopting this practice is that you learn, as associates, to start identifying improvements in how you do your work, enhancing your own ability to someday be a profitable law firm owner, without potentially incurring the wrath of traditional partners, because the option to not look for and report such improvements has been taken out of your hands.

Everyone would benefit from this. The associates improve their productivity, build their confidence, increase their profitability, and become easier to retain. The firm, if it implements these innovations, can lower its prices in a tough marketplace while remaining profitable, make its prices more predictable in a market whose demands for fixed prices become louder every day, and differentiate itself from its competitors. Clients get lower prices, more predictable prices, or higher quality, and maybe even all three.

And all of this starts with one simple proposition: associates should be empowered to increase the efficiency, effectiveness, and productivity of the firm. In most of the firms I’ve seen, it’s the new lawyers who are most enthusiastic about working differently and better; older partners tend to be more concerned with holding on to what they’ve got with both hands. Which of these two groups has the firm’s best long-term interests in mind? Which should be encouraged to act and be supported when they do?

You bet I expect associates to assert themselves, and to seek and receive the firm’s support in doing so, when it comes to improving efficiency and effectiveness. Neither the associates nor the firm will have much of a future in this new legal market unless they do.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Reinventing the associate

Last week’s post, “The decline of the associate and the rise of the law firm employee,” wasn’t just my longest Law21 title on record. It also triggered a detailed response from Toby Brown of 3 Geeks, to which I left a lengthy comment and which in turn inspired a further comment from Susan Hackett of Legal Executive Leadership. Toby converted both of these comments to posts, and I’d invite you to read all three consecutively to get the full exchange of views.

My plan this week is to follow up my original post with two more: one (today’s) that will explore more deeply the past and future role of the “law firm associate,” and the other that will study the whole issue of “lawyer training.”

I don’t really have strong feelings one way or another about Greenberg Traurig’s new “residency” program, largely because (as I noted in my original post) we don’t have nearly enough data about what the program actually involves. If it manages to strike a healthy balance among the needs of the firm, the interests of clients, and the well-being of lawyer employees, then I’m all for it. We’ll have to wait to see how it unfolds in practice. For the moment, I’m  more interested in the implications of introducing another new employment category (“residents”) for novice lawyers in law firms. It raises the whole question of what we mean by “associates,” and why they exist.

For most of law firm history, lawyers who were not equity-owning partners had only one title (“associate”). Associate status represented two things: full-time salaried employment and potential future admission to equity partnership. In theory, associates are lawyers who are learning their craft and honing their skills for the chance someday to become partners — and that does still accurately describe a small percentage of each firm’s associate class. In practice, however, most associates are short-term, leveraged assets whose purpose is to bill hours that fuel the firm’s profits, and who will leave the firm (voluntarily or otherwise) well before the brass ring of partnership comes into view. [do_widget id=”text-7″ title=false]

Many firms have begun to explicitly acknowledge this reality and to call this larger group of associates “staff lawyers” or something similar to indicate their status. Greenberg introduced the title of “practice group attorney” at the same time as it announced its “residency” program. Other firms refer to such lawyers with the unwieldy term “non-partner-track associates.” More senior members of this group, over the past several years, have been classified as “non-equity partners,” highly experienced associates whose time for partnership consideration has come, but about whom there are doubts (on one side or the other) that admission to partnership is a good idea. And now we have the “resident,” a short-term position for newly admitted lawyers that pays less, bills less, and gets “trained” more than a normal associate role.

So, for those keeping score at home, here are some of the ways in which law firms are now describing lawyers who aren’t partners:

  • Associate
  • Resident
  • Staff Lawyer
  • Practice Group Attorney
  • Non-Partner-Track Associate
  • Non-Equity Partner

That’s a whole lot of terms meant to express one basic idea: “You’re not an equity partner.” And for every title on that list other than the first one, there’s an additional component: ”…and you’re not going to become one, either.”

Toby argues that this is no bad thing: all of a law firm’s associates should not presumptively be considered its future partners, not least because few lawyers are truly cut out for the demands and responsibilities of ownership. I think that is certainly correct. But as I mentioned above, the title of “associate” has always carried with it the potential of ascendancy to partnership. Not every associate will become a partner someday; but any associate could become one. That’s the promise and the allure that gives “associate” an extra shine. And it’s exactly this shine, I think, that law firms are trying to remove these days.

Law firms are developing an allergy to equity partners. “Under-performing” partners are being removed from firm mastheads in every jurisdiction, while partner tracks grow longer and “non-equity partner” holding pens become more crowded. Altman Weil’s “Law Firms in Transition” survey explicitly advises law firms: “Make equity partnership very difficult to achieve.” The reason is simple: the revenue pie is shrinking, and the slices are becoming thinner than many partners want. The easiest short-term solution is to remove as many place settings as possible, adding new seats only for lateral recruits who can bring more pie of their own.

So it’s very much in law firms’ interests to lower the expectations of their associate lawyers about their chances of partnership. What many firms would prefer now is new classes of lawyer employees who don’t have all the baggage of “associateship.” These firms want salaried lawyers who work competently and bill profitably, but who neither desire nor expect equity partnership offers. All the rejigging and reclassifying of lawyers who used to be called “associates,” but who increasingly are called anything but that, is in service of this outcome.

The timing for this effort is excellent, because the traditional law firm associate model no longer works very well anyway.

  • New associates cannot be paid handsomely to be trained on clients’ dime as they once were, but firms don’t want to absorb the costs of training on top of the salaries they’re paying, and they’re afraid of cutting salaries because of the potential hit to their reputations in the market.
  • Experienced associates do good work and can still be billed at high rates, but the work they would normally be doing has been grabbed by partners desperate for billings, and the opportunities to gain experience early in an associate’s career are drying up anyway.
  • Senior associates have successfully run the gauntlet and “won the tournament”, but even these few winners increasingly outnumber the available internal routes to equity ownership, leaving them in a restless state of non-equity limbo.

In short, both a driving need and an unprecedented opportunity to replace or reinvent the law firm associate have arisen — and as it happens, they’ve arisen right in the middle of an historic surplus of unemployed lawyers.

In the result, for the next several years (and maybe longer), law firms figure to employ or engage the services of lawyers on much more advantageous terms than in the past. Whether located within the four walls of the law firm or in an outsourced capacity, most lawyers who work for law firms will do so at lower rates, with less job security, on shorter time frames, with less expectation of long-term equity rewards. The idea of “graduating” from associate to partner, from employee to owner, as part of a natural process of law firm development and advancement will lose its traction in many firms. If you no longer want to develop many partners, then you don’t really need many associates.  [do_widget id=”text-8″ title=false]

Is this good, bad, or indifferent? Insofar as firms are recognizing the growing obsolescence of the traditional associate model and are taking steps to rework it or replace it, I think it’s good: that model worked very well in the 20th century but seems a poor fit for the 21st. Agile, flexible workforces are coming to every industry, and the law will not be an exception. But describing this as a strategic shift may be giving law firms too much credit: in most cases, the driving force behind these moves is to reduce personnel costs and compress the ownership pool in order to increase partner profits on a short-term basis.

And it’s the short-termism that worries me. Law firms are meant to be multi-generational entities that grow through a natural cycle of development. You invest in new lawyers at a cost today because you confidently expect your investment to pay off years down the road; you accept short-term losses in exchange for long-term profits as part of a big-picture view of the firm. Law firms everywhere are currently gripped by a fever that drives the opposite behaviour: you accept long-term losses in exchange for short-term profits, because you won’t be around for the long term and you don’t really care what happens when it arrives. This, unfortunately, describes more senior lawyers in more law firms than I care to count, and it’s positioning these firms for a very dangerous future.

The traditional associate model needs to be replaced by something better. But it can’t be better just for law firm partners, or even just for partners and clients, and just for this year’s financial results. It has to be better for everyone, on a sustainable, sensible, long-term basis. If the associate model is replaced by a system that simply strip-mines our legal talent resources for maximum profit for the balance of this decade, leaving the cleanup and rebuild to the next generation, then as both a business and as a profession, we’re going to be in a lot of trouble. More on that in my next post.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

The decline of the associate and the rise of the law firm employee

Earlier this month, Greenberg Traurig became the latest large US firm to take a new approach to its legal talent. Rather than firing secretaries or de-equitizing partners, however, as is all the rage elsewhere, Greenberg proposed something different and potentially groundbreaking: the introduction of a “residency” program for new associates. Here’s how the Am Law Daily describes it:

Join the firm as an associate, but only if you’re willing to spend a third of your time training rather than churning out billable work. The catch? Those who sign on will be paid considerably less than the typical starting associate, will bill at a much lower hourly rate—and may wind up only sticking with the firm for a year.

The offer is the basis of what Greenberg is billing as a new residency program that is being rolled out across its 29 U.S. offices. Firm leaders envision the program as a way of recruiting talented associates it wouldn’t have hired during the traditional on-campus interview process for one reason or another. It will also allow the firm to assign junior lawyers to client matters without billing their work at the usual cringe-inducing hourly rates.

Greenberg is simultaneously creating a new non-shareholder-track position, practice group attorney, that is akin to similar jobs created by Kilpatrick Townsend & Stockton; Orrick, Herrington & Sutcliffe; and others that have moved beyond the up-or-out structure typically employed by large law firms. …

[C]lients have been eager to use the junior lawyers, who cost less than a typical associate, and have allowed them to sit in on meetings and calls—at no cost to the client—as part of their training. The rest of the training, MacCullough says, comes via online courses with the Practising Law Institute, the professional development courses the firm offers all associates, and extra “hands-on learning” with partners without concern about billing for the time.

This initiative emerged from Greenberg Traurig’s Fort Lauderdale office, where new graduates are offered the chance to be “fellows” who resemble associates, but are paid less, bill less, and spend more time training. This innovation has now spread firm-wide. “Once the initial one-year period ends,” the Am Law Daily reports, “residents will either become a regular-track associate, take on the new practice group attorney title, or leave the firm.” (This reminds me of the old college football coach’s admonition against the passing game: “Only three things can happen when you throw the football, and two of them are bad.”) [do_widget id=”text-7″ title=false]

Response to Greenberg’s program has been generally positive, and I can understand why. Anything that offers even partial employment opportunities to new law graduates these days has to be considered a good thing. The “residency” approach contains echoes of the “apprenticeship” programs that firms like Drinker Biddle, Strasburger, Ford & Harrison, Frost Brown Todd, and Howrey pioneered about 3-4 years ago and that I thought might herald a whole new approach to associate training. (They haven’t.) And Greenberg’s residents bear a close resemblance to Canada’s articling students, whose one-year apprenticeship in a law firm is a widely admired (although increasingly flawed) way to introduce new lawyers to practice.

Yet something still seems off. By crafting the position of “practice group attorney,” Greenberg has joined many firms in creating a class of associates who aren’t going to be partners; by introducing “residents,” Greenberg appears to be creating a class of lawyers who, most likely, aren’t even going to be associates. What’s not clear is why either of these new groups of lawyers are inside the firm at all. If what you’re looking for are low-cost, non-essential generators of legal work, why not talk to Axiom or The Posse List or any LPO with offices in Mumbai, Manila, or Minneapolis? Why introduce and maintain yet another costly group of lawyers who aren’t here for the long term?

One possible reason is that the whole point of the residents is to eventually replace the associates altogether. Lower salaries? Essential for continued partner profitability, and more reflective of actual associate value. Lower billing rates? Clients aren’t paying the higher rates anyway, so you might as well find a rate that they will pay. Lower billing targets? There isn’t enough work available for partners to make their targets, let alone new lawyers. As the article makes clear, these are really the only differences between a “resident” and an “associate.” Which of these two classes do you think the firm will want to sustain?

The law firm associate market is way overdue for a serious compensation correction: $160,000 starting salaries were and are ridiculous, relative to both the availability and value of new associates. New lawyers can’t and shouldn’t be expected to bill 1,900 legitimate hours a year, and a system that required them to do so was impractical and unwise at best, improper and unethical at worst. Something had to replace that system, and this may be the replacement.

Greenberg’s model is obviously still in its formative stages, and there’s not much point in exploring it further with such limited data. But it’s possible that it might be part of the next stage, maybe the final stage, in the decline of the law firm associate and the rise of the lawyer employee.

Go back several decades to the emergence of the Cravath model, which originally viewed a small class of salaried associates as future partners who could nonetheless generate profits through leveraged work along the way. The distortion of that model, over time, led to much larger and more profitable associate classes, of which only a few members would make partner — but all the same, the firm and its clients still treated those associates as professionals with potential long-term value. We’re now on the verge of entire associate classes whose only purpose and value is to generate leveraged work. They are not meant to be future partners: they are temporary employees meant to sustain the practices of current partners for as long as those partners need them. [do_widget id=”text-8″ title=false]

You might object that that’s not a good long-term stratagem. But a lot of law firms these days aren’t being managed for the long term, and there’s nothing more long-term than associate development: the investment of serious time and money in hopes of producing future partners. Many firms are employing fewer new lawyers than ever, and they have little incentive to invest heavily in the long-term development of the ones they do. They don’t need more equity partners — many firms are busily culling their own ranks — and if they do, they’ll get experienced, plug-and-play veterans with books of business via lateral acquisitions in the free-agent market. (Where laterally trained partners will come from in future, if firms no longer commit to investing in new classes of associates today, is not firms’ leading concern at the moment.)

It’s therefore possible that the era of the “law firm associate” — the partner in training — is now coming to an end, as I suggested back in 2009. Replacing it might be the era of the “lawyer employee” — here today, gone tomorrow, with a completely different set of expectations on each side about the nature of the relationship. It’s true that at several firms, the transition I mentioned above has long since taken place: most associates are essentially revenue generators. But the title of “associate” has a lengthy history and carries powerful expectations: “associateship” has been the precursor to “partnership,” just as adolescence has been the precursor to adulthood. Take away the title of “associate” and replace it with something smaller and poorer — “intern,” “resident,” “employee” — and the impact is profound.

This must surely be an attractive route for many law firms eager to reduce salary costs, minimize training expenses, and boost partner profits. But there’s a risk to the law firm that trades associates for employees straight-up, that diverts resources from internal development to external acquisition: it might permanently lose its capacity to develop any lawyers at all.

The ability to onboard a new lawyer, bring her into the firm’s cultural and structural orbit, develop her capacity to produce higher value over the course of time — this is an organizational skill, no different than any other a firm might possess. A firm that ceases to take internal development seriously will see that skill atrophy: it will become a muscle rarely exercised, with predictable results. PD professionals may leave the firm for better environments elsewhere; partners may lose whatever remaining interest they might have had in bringing along new lawyers; potential recruits may regard the firm as a dead end. These outcomes might not matter to the firm today. I guarantee that they’ll matter down the road.

Once a law firm switches off its lawyer development engine, it’s not easy to rev it back up again — and if you intend for your firm to be operating more than five years from now, it’s an engine you will desperately need to work at some point. That’s the tradeoff, whether they realize it or not, that some law firms now seem poised to make.

There’s another risk to this development, by the way — a threat to the continuing development of the legal profession itself. But that’s for another post.

[Here’s the next instalment in this series: “Reinventing the associate.”]

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.  

Disrupting the legal education marketplace

Are you old enough to remember when the only way you could send a letter or a package to someone in another city was through the Post Office? Do you remember what it was like to deal with the employees and policies of a company that had a complete monopoly on a vital service? Remember how much you enjoyed that?

Are you also old enough to remember when the only way you could phone someone in another area code was through long-distance services provided by your local telephone monopoly or duopoly? And how you had to wait and call after 6 pm to get a discounted rate, or after midnight for an even steeper discount? How did that work for you?

It’s easy to forget how much technology and globalization have changed and improved our everyday experiences in the last few decades. Today, we take companies like Fedex and Skype for granted. We have trouble picturing a world — a very recent world — in which there was no Ikea, no Amazon, no Samsung, no Starbucks, no SouthWest. You don’t have to use these companies or like their products to recognize that their arrivals changed the markets they entered, created more choice, forced the incumbents to lower their prices or raise their games or change their offerings or all three. And I can presume that you wouldn’t go back to those old, narrow, barren markets unless forced at gunpoint.

Now, take that frustrating, constraining, 1970s-malaise feeling you recall from the old days, and apply it to legal services. Because that’s the way many people and businesses still experience the legal market: one type of provider, one set of rules and procedures, one definition of adequate service. But that’s all about to change:  our cozy little market is opening up, and new players are entering.

These new players, like the Ikeas and Southwests that entered other markets before them, will undermine clients’ existing assumptions about how legal products and services should be created, priced and delivered, and they will find many willing customers desperate for a breath of fresh air. This isn’t really negotiable or reversible. All that’s left for us to decide, as lawyers, is whether we want to wind up as the future equivalent of the Post Office in a FedEx world.

Now, here’s the better news for lawyers: there’s a growing chance that we could experience the same kinds of consumer benefits arising from the opening and expansion of another dusty, moribund market: legal education.

As you know, for all practical purposes, there is one and only one route into the legal profession: a law school degree and a Bar-administered admission process. The degree goes by different names (e.g., Bachelor of Laws, Juris Doctor) and so does the admission process (e.g., articling, Bar exam, solicitor training, Bar admission course). But the basic structure is universal and hasn’t changed for decades: three years of law school followed by a competence assessment that, in most (but not all) cases, is not especially difficult to pass.

The practicing Bar’s unhappiness with the legal education system has been thoroughly documented. But the Bar also has no one to blame but itself. By allowing a law degree to stand as the exclusive means of legal education credentialing, the legal profession has also created a monopoly that works against its own interests. If you want to become a lawyer, you must first go to law school. Legal educators, gifted with sole possession of an extremely lucrative and perennially increasing market, have responded exactly as you would expect any monopolist to respond: jacking up prices, fending off change, and ensuring their own nests are comfortably lined. (Before you start feeling too resentful about that, go back and read the fourth paragraph again.)

Law schools, of course, are currently in the process of watching their pleasure domes start to crack and crumble. Thanks in large part to recessionary forces and changes to the way law firms hire and use associates, US lawyer employment has imploded, and law schools are paying the price. You could argue — I won’t, at least not strenuously — that this is unfair to the schools: they didn’t cause the changes to the market, and if anything, they’re doing a slightly better job preparing students for practice today than they did 10 and 20 years ago. Not that that will help them now — there’s an old saying that when you sow the wind, you reap the tornado.

Anyway, the most recent US law school data is remarkably grim: as you’ve probably read, applications to ABA-accredited law schools are down 20% from 2012 and are on track to nosedive 38% since 2010. If you go back to 2004, the drop is an astonishing 50%. This has hit the legal academy like a hand grenade tossed through a window: Paul Campos has been tracking the resulting panic and shrapnel for several months now.

The problem has become large and serious enough to have caught the attention of the mainstream press: The New York Times, The Atlantic, Forbes and The Daily Beast have all picked up the story, coverage that is just going to accelerate the race away from law school enrolment. I issued a “sell” advisory on law schools 20 months ago, and nothing that’s happened since has changed my mind. (Smart schools still interested in saving themselves should read Bill Henderson’s Blueprint, today.)

That, obviously, is the bad news. The good news is that this market disruption, like every other, can create opportunities for new players and new models. Here are a couple that you should note and encourage.

In England & Wales, now widely recognized as the world’s legal laboratory, apprenticeship is poised to make a comeback in the professions. “At the moment, to become qualified as a solicitor, accountant or in insurance, the typical route involves three years at university, then on-the-job training and professional qualifications,” wrote Skills Minister Matthew Hancock in the Telegraph. “But university is not for everyone. There is no reason why you can’t attain the same qualifications, without the degree, starting on-the-job training in an apprenticeship from day one. So I want apprenticeships spanning craft, technical and professional jobs that open up work-based routes to the top.” The minister cited approvingly an apprenticeship program under development at BPP Law School, which has close ties to the profession.

Now, if you’ve been reading my work for a while, you’ll know that I think highly of apprenticeship, and that I wrote a few years ago about some promising apprenticeship programs at a handful of US law firms. (Here’s the paper I submitted to a Georgetown Law symposium on the subject.)  I imagined and hoped that this was a trend that would take off in a recessionary climate; it did not. But that was apprenticeship as a training method for new lawyers; we’re now talking about apprenticeship as a non-school route into the profession.

Hardly anyone takes that path anymore; but if it could be revived, ideally complemented with a mini-degree that provided grounding in the essentials of jurisprudence and legal theory, then law schools would have more on their hands than just a PR nightmare and a shrinking inventory: they would have competition. And unlike those first two factors, which will spawn only destructive outcomes, competition can and should be constructive for schools. Competing models that threaten to siphon off the best applicants would spur schools to make real changes in their approach to the market — it would give them a target to focus on and a framework within which to reconfigure and rebuild.

Nobody wants law schools to disappear; we want law schools to thrive — but on their merits. Putting a viable alternative up against law schools would motivate them to reconsider their own models, defend their own visions of lawyer preparation, or adapt their approaches to more closely resemble what the successful options offer. Complaining about law schools didn’t work; trying to regulate them won’t work; and putting them out of business is pointless. So give them competition: unleash alternatives that can give them a run for their money, and let them fight their way out of this mess.

A similar sort of innovation may be unfolding here in Canada, which it seems fair to say is not widely recognized as the world’s legal laboratory. But the Law Society of Upper Canada in Ontario has recently done something which could be just as bold, in its own way, as the UK’s move towards apprenticeship.

Law graduates cannot be admitted to the Bar in Canada until they’ve completed a year of articling — itself a form of apprenticeship with a practicing lawyer or law firm. More than a few US commentators have envied this approach and suggested its adoption in the US (or the British solicitor trainee program or German Referendarzeit). But articling in Canada is itself the subject of ongoing controversy, and in Ontario, articling placement — which used to be all but automatic — is now down to about 85%. That’s a problem that the US bar, facing a 55% new-lawyer law-related employment rate, would love to have.

In Ontario, however, concern about the articling crisis led to heated debates and finally, late last year, to the approval of a pilot-project Law Practice Program that would run parallel to articling and provide an avenue to those who cannot land articling positions. The program is not, shall we say, universally popular, and at this extremely early stage, it’s almost entirely speculative anyway. But I think it’s tremendously important nonetheless, for much the same reason as I think the possibility of apprenticeship is important: it creates competition for new lawyer training.

Up until now, articling in Canada has, in a sense, enjoyed a monopoly, in much the same way that law schools and lawyers have. There is only one “apprenticeship” method, one training route, for Canadian bar admission, and that’s the articling process. Knowing this, many Canadian law firms have felt free to offer articling positions without having to worry very much, if at all, about the quality of those positions. All they really had to concern themselves with was the provision of a competitive salary; it was accepted wisdom among lawyers and law graduates alike that the articling experience itself would always be uneven, and that whether you really learned much about being a lawyer would be partly a matter of your own efforts and partly the luck of the draw.

Now, introduce the Law Practice Program into this mix. Suddenly, articling programs can’t afford to be complacent, because now there’s another training option. Providers of the Law Practice Program (it’s envisioned that there would be several) can pitch themselves to the law student market thus: “Law firms won’t really train you to be lawyers, you know. They’ll have you photocopying and doing grunt work and picking up drycleaning. But we will train you, through competitive work placements and practical role-play sessions and other cutting-edge methods for inculcating business skills. We will give you the tools to be employable upon graduation.”

These providers will have to offer and deliver these kinds of benefits, because that’s the only way they’ll be able to make money. In order to attract candidates — and, much more importantly, to produce graduates attractive to employers — they will need to build a training program superior to articling (and based on some reported articling experiences, that might not be terribly difficult). They will have to do more than just be a consolation pathway for students who couldn’t find articles — they’ll have to persuade law graduates of all stripes that their programs are as good as or better than articling and are worth the investment.

And if they succeed — well, then suddenly, we have a race. New lawyer training stops revolving around the tired old question of “Whose responsibility is it?” that we’ve been grappling with for ages. It becomes a question of “Who wants the opportunity?” Which training option is better for new law grads? Which can deliver the best results? Which can draw the best students into their programs and produce the best subsequent employment rates? A market filled with new lawyer training options, competing with each other to attract law graduates into their program, would have many ramifications — the likely end of standard paid training for new lawyers almost certainly among them — but the overall impact on the profession would be highly positive.

That’s why I think the Law Practice Program for the Ontario legal profession has the potential to be a game-changer, and why the suggestion of an apprenticeship route into the British profession is equally significant. Our legal education and admission methods have grown stagnant because they are monopolies, no different from the post office or phone companies of the past. Break up those monopolies — open up these markets and let in some sunshine and fresh air — and you’ll have the first real opportunity for serious reform and improvement in the new lawyer development process.

And if it all breaks right, then just like with mail and long-distance calls, no one will want to go back to the old days again.

Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America on how to survive and profit from the extraordinary changes underway in the legal services marketplace. He is a partner with Edge International and a senior consultant with Stem Legal Web Enterprises.