Seeing justice through clients’ eyes

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Posted in: Clients, Purpose

At the moment, I’m working on a paper about professionalism in the law, tying it closely to lawyers’ mandate to serve the best interests of others, including clients and the public. I thought you might be interested in this brief excerpt; I’d certainly be interested in your thoughts about it in return:

There is a fundamental disconnect between how lawyers view the justice system and how clients view it. Lawyers are trained, from the first day of law school, to get the right result, no matter what. We are steeped in the idea that justice must always be done and must always be seen to be done, whatever the costs.

The underlying theory of the common-law adversarial system reflects this: two learned advocates, zealously advancing their clients’ cause, will produce for an independent judge the means by which the correct result can be identified and proclaimed. The costs involved in reaching this result, in terms of time, money and impact on people’s lives, are, from the lawyer’s point of view, of secondary importance to the overarching goal of the system: justice must be done.

To see an illustration of this philosophy, consider the discovery process, a major contributor to the length and cost of trials. (Needed reforms to the process were endorsed by former Ontario Associate Chief Justice of Ontario Coulter Osborne in his recent civil justice report.)

Lawyers are trained to believe that anything that can be construed as potentially evidentiary should be made available for them to sift through. Inclined by both nature and training to be thorough to the point of perfectionism, lawyers want access to every stone for the purpose of turning it over. Similarly inclined towards risk aversion, lawyers fear missing any relevant point, no matter how small, and are accordingly driven to ensure that every box has been checked. The result is a massive overabundance of attention to the trees and too little regard for the forest. Continue Reading

Page 123, and More

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Posted in: Ethics, Purpose

It’s a holiday in many North American jurisdictions today (including mine — someone decided that a day off in mid-February needed the patronizing label “Family Day”), and I’m at home working on a couple of projects anyway, so this seemed like a good day for something a little lighter. From Michel-Adrien Sheppard at SLAW comes this neat meme about random wisdom: open the nearest book, turn to page 123, read down five lines and write out the three sentences that appear next.

As it happens, the book on top of the pile I’m consulting for my projects is The Lawyer’s Calling: Christian Faith and Legal Practice, a 1996 work by Joseph G. Allegretti. Page 123 finds Allegretti discussing the character of Thomas More in Robert Bolt’s play A Man For All Seasons :

Part of the reason for More’s appeal to lawyers is his legalistic (in the good sense of the word!) approach to the problem of the oath [More had refused to sign one attesting to the legality of the king’s divorce]. An oath is composed of words, he says, and he will sign it if he can, if the words permit him. He is no plastic saint: he very much wants to live, and he will use his mind to escape punishment if it is possible to do so.

Allegretti likes that part of the play because it points up More’s humanity: he has no wish to become a martyr and will use his God-given legal skills to avoid that fate, so long as doing so does not interfere with his primary loyalty to God. That, of course, does not turn out to be possible, and More suffers accordingly. There’s a lot to chew over there about a lawyer’s duty to a client conflicting with his duty to his conscience, a subject we should talk about more than we do.

I’m partial to the real Thomas More for a host of personal and professional reasons, but the literary More in Bolt’s play makes a fascinating study in lawyers’ moral responsibilities. He’s one of two fictional professionals who I think really illuminate lawyers’ lives in this regard: the other is More’s opposite number, Stevens, the butler in Kazuo Ishiguro’s The Remains of the Day, who represents the consequences of allowing your employer’s judgment to substitute for your own (if you’ve only seen the movie, do yourself a favour and read the book, too — it focuses less on the thwarted romance and more on the moral obligations of servanthood).

For all I loved To Kill A Mockingbird, I never actually found Atticus Finch to be that intriguing a character as a lawyer. He’s too idealized and heroic to serve as a realistic role model for lawyers — never makes a mistake, always does the right thing. For my money, he’s a far more compelling figure, and a better role model, when viewed solely as a father (and that’s as far as I’ll go to mark Family Day).

So: what’s on the nearest page 123 to you today?

If I had two billion dollars

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Posted in: Big Firms, Clients, Purpose

There is persuasive authority for the proposition that if I had a million dollars, I’d buy your love. So what would I be able to buy with two billion dollars? Apparently, a whole lot of wide-eyed attention and breathless commentary from various legal media outlets. That’s pretty much all I’ve seen over the last few days after Latham & Watkins, DLA Piper and Skadden Arps each announced that it had broken the $2 billion revenue barrier in 2007.

Now, if this is the sort of thing you like, then the foregoing links will give you more than enough to pass the weekend, what with the debates over total firm revenue versus profit per partner versus profit per equity partner, each metric relatively able or unable to determine the richest and/or most profitable large law firm in the world. For myself, I’d like to step back here and suggest that the more we obsess over law firms’ enormous revenue or profit figures, the farther away we travel from why we’re in this gig in the first place.

It bears repeating that lawyers, like the laws that enable their businesses, exist for the purposes of clients, not the other way around. I constantly see lawyers get that formula backwards, viewing clients primarily as a means to their own ends rather than as ends in themselves. Our profession is deeply immersed in the concept of clients as sources of work, suppliers of problems, lifelines of status, fonts of revenue — as entities from whom we receive, rather than to whom we give. A lot of lawyers, subconsciously or otherwise, regard clients as holding value only insofar as they provide us with the raw material of lawyering.

Kant could have told you how categorically important it is to treat people as ends in themselves, that striving to enable another’s dignity and happiness is the overriding purpose of human relationships. That, fundamentally, is why law remains an important calling and (done right) an immensely fulfilling vocation. It’s no coincidence that law, medicine and ministry — each centered on alleviating unhappiness and enhancing the human condition — were the first three lines of work to be considered “professions.” If we want to understand what we mean by professionalism, we need to remember where the word came from. Continue Reading

It’s still not funny

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Posted in: Purpose

I can understand why a lot of people tell lawyer jokes. I will never understand why some lawyers do.

Jokes about people in positions of authority — political leaders, clergypeople, doctors and lawyers — trace their lineage back centuries. They’re grounded in people’s real need to exercise some sort of control over or resistance to the authority these figures represent. If you can’t topple el presidente, you can at least mock him, safely, behind closed doors. Lawyers have been powerful figures in society for as long as the profession has been around, so it’s natural that jokes have evolved as a way to cut lawyers down to size and bring them down to a more everyday level. That’s understandable and, from a social point of view, entirely healthy.

My problem with most lawyer jokes is that they’re abusive. Good humour turns on incongruity or unexpected developments; the humour in most lawyer jokes, such as it is, turns on the execrable nature of the lawyer. To the extent he speaks or acts in the joke, the lawyer is greedy, dishonest, stupid, destructively selfish, amoral and nihilistic. (And note that many lawyer jokes don’t even require the lawyer to be more than a silent caricature — he’s just the dead object in the road in front of which there are no skid marks.)

Jokes that hinge on people being lumped into a category aren’t jokes, but stereotypes — if the jokes were really funny, they wouldn’t have to lean on the crutch of prejudice. They dehumanize people, denying them the dignity to which they are fundamentally entitled and making the “joke” easier to swallow. The lawyer in the worst lawyer jokes is not a person to be humbled, but a thing to be abhorred. Yet that doesn’t keep people like the pending Republican nominee for president from telling a particularly unfunny and cruel lawyer joke to boost his own popularity. Continue Reading

The rookie says thanks

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Posted in: Purpose

I’m going to borrow a page from David Maister‘s blog and take a moment at the start of each month to say thanks to other bloggers who did me the honour of linking here over the past few weeks. I’m brand new at this game, and I genuinely appreciate the warm welcome to the blawgosphere I’ve already been extended. So, many thanks to Simon Fodden, Paul Caron, Amir Kafshdaran, Omar Ha-Redeye, Simon again, Dennis Kennedy, Ron Friedmann, and Steve Matthews, not to mention commenters Amir, Susan and Tybalt. Grazie mille, folks!

Beyond work/life balance

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Posted in: Big Firms, Generations, New Lawyers, Purpose, Satisfaction

Seth Godin, whom you’ll see linked fairly often in this space, writes about the new workaholic, the person who’s motivated not by fear but by passion: “The passionate worker doesn’t show up because she’s afraid of getting in trouble, she shows up because it’s a hobby that pays. …[T]he new face of work, at least for some people, opens up the possibility that work is the thing (much of the time) that you’d most like to do.”

I read that and thought of the survey of law firm associates that Hildebrandt issued a little while ago. Its findings caused something of a stir by flouting the conventional wisdom that associates, especially in large firms, were overworked, stressed and deeply unhappy. I won’t go into the nuts and bolts here, but among the findings was that satisfaction was much higher than expected and that there was no correlation between long hours and unhappiness — rather the opposite, in fact. I think these two items say something about today’s new lawyers that law firms need to understand.

I continue to be amazed by senior lawyers who complain long and loud about the current generation entering their firms: “no commitment,” “not willing to pay their dues,” “a sense of entitlement,” and occasionally, even “lazy” are among the apparent sins of the young. The people saying these things are very smart, very capable, often leaders of their firms, but I don’t think they’re grasping a critical point: by and large, today’s new lawyers have no qualms whatsoever about working long and hard. What they have serious qualms about is working long and hard on rote tasks, unfulfilling assignments, due diligence and similar kinds of docket-filler, with few opportunities for serious client contact, independent undertakings, or crunch-time appearances in dealrooms and courtrooms. Continue Reading

Pro bono without borders

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Posted in: Globalization, Purpose, Talent

A press release came my way today from McCarthy Tétrault, announcing that the firm is the first Canadian “Partner Without Borders” of the Quebec division of Avocats Sans Frontieres. [Edit] ASF is an international NGO devoted to providing legal assistance and representation to vulnerable individuals and groups in developing countries or those in crisis. The organization is active in 30 countries, working with local groups on a completely pro bono basis. ASF Quebec has a number of law firm sponsors already, but McCarthys is the first to become un partenaire. Good for them.

Any law firm worth its charter has always been active in its community, of course, but in this age of megafirms with global reach, we’re starting to see super-national firms display a truly remarkable degree of involvement in issues and organizations that transcend the usual local undertakings. Check out DLA Piper, whose New Perimeter project is an incredible piece of work: a worldwide pro bono initiative that has seen 13,000 lawyer hours contributed to, inter alia, drafting new judicial laws in Kosovo, restructuring a micro-lending project, developing a worldwide food bank system and creating a human rights center in southern Africa. This is work on the scale of the CBA’s sterling International Development Committee, but supported by a for-profit firm rather than a non-profit association.

It would be naive to overlook the obvious marketing and recruitment benefits of McCarthy’s move here: the press release highlights the firm’s other pro bono efforts, including its support of Pro Bono Students Canada. This obviously invests the firm with some cachet among law students and new lawyers, many of whom take overseas development work very seriously. McCarthys, of course, will have to back up this commitment with active participation in Avocats Sans Frontieres (and now I have Peter Gabriel’s Games Without Frontiers stuck in my head), because students can also tell real commitments from mere gestures. But I prefer to think McCarthys means what it says here about its pro bono commitment, and that what we’re seeing really is the white-hot trend of globalization applied to the age-old tradition of lawyers’ community service.

A long look in the mirror

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Posted in: Purpose, Satisfaction

I don’t have much to say about “the Maclean’s cover” that hasn’t already been said, eloquently and accurately, by the CBA’s current and past presidents. The CBA was right to defend lawyers’ good name against an offensive piece of hack journalism. The less said about that article and the book that inspired it, the better.

But here’s the problem. Look beneath those shallow and cynical diatribes against our professional conduct, and you’ll find a few uncomfortable truths. Read the more legitimate but equally disturbing article about large firm life in the September 2007 Toronto Life. Hear the speakers at the CBA’s Canadian Legal Conference last month describe women lawyers who hide serious illnesses in order to protect their careers.

We damage our profession when we pretend that everything’s just fine in the practice of law. I’ve spoken informally with any number of lawyers and heard countless stories of frustration, worry, heartache and exhaustion. Big firm or small, urban or rural, many lawyers suffer from ineffective business models, uncompetitive practices, unfulfilling tasks, punishing workloads, and unacceptable behaviour by colleagues and bosses.

None of these issues has anything to do with the fundamental nature of being a lawyer — we’re no more susceptible to these sorts of problems than are accountants, architects or investment bankers. So much for the lie that lawyers are inherently unprincipled or miserable.

What these problems do have in common is a broken business culture. Compared to today’s successful organizations, the way lawyers structure their businesses, sell their services, treat their employees, market their practices and relate to their clients is obsolete and harmful. The poor workplace culture that afflicts many law offices can be traced to our outmoded approach to business — and our refusal to admit it.

National has been exploring these business and cultural problems for years. But the stories we’ve published are outnumbered by the ones we’ve had to abandon, because we couldn’t get enough lawyers to talk on the record.

Those lawyers who shared their stories with me informally were adamant that they would not be interviewed on these topics, not even under assumed names. They’re afraid to speak the truth, afraid for their jobs and reputations — and that’s as damning an indictment of the current system as I can think of.

We can summon the courage and honesty to address these problems ourselves — or we can continue to hide behind our professional walls and wait for more outside attacks to bring them down altogether. Which sounds like a better option to you?

This post first appeared as the editorial in the October 2007 issue of National magazine.

Is stewardship dead?

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Posted in: Leadership, Purpose

Maybe not quite, but in the context of most professional law firms with more than just a handful of partners, it’s on life support and the priest has been called in.

I honestly don’t know of any midsize or larger law firms, at least, that operate other than “to maximize the wealth of the current shareholders.” Talking about stewardship — propounding the idea that you’ve inherited something special and precious from those who came before you, that you don’t “own” it the way you own your car or your jacket, and that you’re compelled to pass on that legacy intact and improved to those who follow — that would be speaking a foreign language in most current partnership meetings. Certainly there are exceptional firms out there, but they likely operate so differently from the competition as to be exceptions that prove the rule.

I don’t think this is because of rampant employee turnover and lateral departures — they’re symptoms of stewardship’s absence, not a cause. I do think that, among law firms anyway, aggressive growth — “national” and “global” strategies meant to maximize business intake — have stretched the traditional model of a law firm beyond any coherent meaning. I mean, come on — an 800-member “partnership”? Can you seriously contend that the hundreds of lawyers nationwide or worldwide whom you’ve never met — who share only a letterhead and a remuneration plan with you — are your “partners” in any but the most formalistic sense of the word?

True “partnership” implies elements like trust, shared values, common commitments — it involves a conscious recognition that you and I hold the same approaches to professionalism and client service, and a decision to proceed together towards our shared goals. Receiving an e-mail in Montreal announcing that the Calgary office has admitted a new litigation partner whom you’ve never met and likely never will, that doesn’t cut it. Law firms that grow beyond a certain size and jurisdiction inherently can’t be much more than a loose affiliation of constantly revolving outside counsel. In this context, “stewardship” simply can’t apply.

The recent deals whereby major law firms have become the single source for a multinational’s outside legal work — Tyco and Evershed’s, Linde and DLA Piper — look more and more to me like the future of large law firms: really, really big corporate legal departments, half-inside, half-outside. That’s fine for them, but I look forward to the day when these firms no longer burn so brightly in the profession’s imagination that they set the tone and expectations for how other law partnerships are expected to define and conduct themselves.

I always tell law students to remember that large law firms are the exception, not the rule. Hopefully, stewardship still runs silent and deep among smaller firms, and will stage a major comeback as the nature of lawyers’ business associations continues to evolve in the years to come.

This post originally appeared as a comment to a post at David Maister’s blog on March 22, 2007.

The purpose-driven lawyer

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Posted in: Law School, Purpose

The myth of the rich lawyer is remarkably widespread. That’s odd, considering the fact that while some lawyers are very well off, many others simply make a decent living, and some sacrifice potential income for a greater purpose.

These days, only the independently wealthy emerge from three years of legal education debt-free. Tuition is higher than it’s ever been, and textbooks aren’t exactly cheap either. Add in the cost of living in the metropolitan centres where many schools are located, and you can see why law school has become a major financial investment.

The schools do their part to ease the burden — bursaries and grants for lower-income students are greater than ever before, for example. But they need help if universal accessibility to a legal education is to be preserved, something that is a legitimate objective for our profession.

You can appreciate why the schools resist calls for tuition freezes. The convergence of government funding cuts, globalized competition for top professors and students, and aging facilities in need of renovation or replacement means that law faculties have to maximize their revenue sources. Many law firms have stepped forward with generous grants and sponsorships, but the bar can’t fill the funding gap alone.

The ideal solution would strike a balance, providing schools with sufficient financial flexibility to forge competitive programs while also pursuing the worthy goal of a truly diverse profession that reflects Canadian society. These are not diametrically opposing objectives, and through consultation and innovation, that solution can be found.

But consider the potential cost of failing to achieve that balance. Legal careers dedicated to ensuring fairness and justice form the foundation of a just society and express the best ideals to which this profession can aspire. They stand for the proposition that law can be the key to better lives for people fighting obstacles most of us will never know.

If we allow these types of careers to become inaccessible for all practical purposes, we will have lost more of our professional soul than we realize. It’s been said that the test of a society is how well it treats its most vulnerable members. The test of a profession is how much it’s willing to invest in that effort.

This post originally appeared as the editorial in the July/August 2006 issue of National magazine.