Of Legal Futures — Darker or Better

A couple days ago CBA Young Lawyers released the 11th report in the Legal Futures Initiative, Do Law Differently: Futures for Young Lawyers. The report features profiles on 26 pioneers of the #NewLaw movement (one is my colleague Audrey Jun @AudreyyJun), and identifies emerging “new legal careers” along with the skills new lawyers will need to forge a life for themselves beyond the crumbling “old system” of equity partnership track positions, mentorship, associate positions or, well, to put it bluntly… any kind of full-time “lawyer job”. Everything is in flux and much is about to become myth over the next 10-15 years.

The report’s author, legal futurist (pragmatist?) Jordan Furlong, writes that “the legal career continuum of the past several decades was a moment in time, and that moment is now fading away.” He says that:

“The future will be different from the past. We believe that it’s not only going to be different — it’s also going to be better.”

I must confess, having read the report, this last assurance did not carry conviction. I have little doubt that change is coming for many of the reasons named in the report. But does it sound to you like a better world for debt-saddled law students?

Here’s a brief quick look at the report, along with what I asked myself when I looked inside:

Frank Talk About Factors Transforming the Legal Market

The report fingers four culprits killing jobs for full-time lawyers:

  • Regulatory liberalization (i.e. end to lawyers’ strict monopoly over the provision of legal services)
  • Competitive pressures (i.e. what legal consumers will accept from legal service providers, lawyers or otherwise)
  • Technological advances (virtualization, automation, AI, etc.)
  • Access imperatives (or simply, the access to justice crisis that has raised costs for legal services out of reach of average consumers)

This is the bad news from the report. It says outsourcing, advanced software automation and short-sightedness among the big firms will have a depressive impact on articling positions and full-time associate positions. Already only 60% of US law graduates move on to jobs as lawyers, and here in Canada articling positions will continue to dwindle as big firms focus less on fostering young talent, and more on poaching mid-level talent when it’s ripe. Law firms will keep smaller and smaller cores of staff.

Emerging Career Opportunities

The good news? Well, lawyer “jobs” will decline, but lawyer “opportunities” will grow. Meet the seven career paths of the future:

  1. Running your own show — solos as niche specialists with virtual practices
  2. Serving clients institutionally —in-sourcing by corporate law departments may soon account for the majority of salaried lawyers
  3. Flexing your time — the “agile lawyer” is paid less, and has no partnership options or benefits, but they pick their own schedule
  4. Serving the 85 percent — if lawyers currently only serve about 15 percent of the whole population, will some startup tap the hitherto untapped 85%?
  5. Training the machine — as AI is poised to start doing more entry-level legal work, it still needs to be trained. Training the machines to do your job is, well, at least itself a job for now.
  6. Streamlining the systems — “Law firms and law departments will soon have great need of process engineers and project managers”
  7. Preventive law — “proactive rather than reactive legal services — has barely scratched the surface of its potential”

While I understand the spirit of buoyancy and optimism, the term “lawyer opportunity” used here is too vague to sound that much better than the term “lawyer job”, which is something we could (at one time) have used to raise a family and generally make a life for ourselves. I’m not disagreeing with the perspective that the old system is crumbling and that these are some alternative opportunities we see ahead, but how is this really a “better” future, and what do we mean by “better”?

Mortgage lenders won’t agree that “flexing your time” (#3) is a good thing to put on an application, and you would be in good company if you thought that “training the machine” (#5) to eat your lunch is a short-sighted plan if your aim is to have a lunch to eat yourself at a later time.

As for going solo (#1), while I see how technology supports running lean solo law practices, I don’t know how this answers the competitive pressures problem. To win out over competitors (from inside or outside the legal profession) who have the same technologies at their disposal, one needs either sophisticated processes or aggressive price cuts. The prospect of hundreds of barely trained new calls running their practices online at bargain basement prices is, in my view, cause for alarm, not relief.

And while there must certainly be opportunity in “serving the 85%” (#4) it is not clear to anyone what that this will look like and whether any young lawyer will put food on his or her table once this market is tapped. I would sooner bet my chips on the large tech companies that own Watson or the next killer AI app. It is automation that will likely bring the price of legal down to a level anyone can purchase.

New Skills and Expertise

Of course the skills required in new candidates for admission to the bar have changed over time. Generations of lawyers in centuries past apprenticed under drudgery, hand copying forms and precedents for supervising lawyers. In the 1980s, they collected dry cleaning for senior partners. But analytical ability, attention to detail, logical reasoning, persuasiveness, sound judgment, and written communication were always important. So what’s important now?

The report identifies nine proficiencies for future lawyers:

  1. Data management
  2. Emotional intelligence
  3. Entrepreneurial spirit
  4. Financial literacy
  5. Network building
  6. Process improvement
  7. Professional conduct
  8. Strategic thinking
  9. Technological proficiency

What’s interesting to me about this list of skills is that it sounds like an MBA curriculum… and maybe that’s the point?

We are not necessarily talking about “lawyer jobs” giving way to “lawyer opportunities”, but “lawyer jobs” giving way to “business opportunities in the legal sector”… whether or not a lawyer is involved. It’s more or less implied by this report that we’re living in an age where everyone is cutting corners. Firms are not training talent, clients are not paying for it, and we’re in a race against various players (accounting firms, off-shore out-sourcing, multi-disciplinary practices and alternate business structures, tech startups, etc.) to commoditize legal services and wring out value from the old, inefficient models of the past. For many of the career paths described, I see how business acumen is useful, but it’s not clear how or where the integrity, independence and candour of the legal profession is to be applied or even preserved.

It’s especially unclear to me how a young lawyer—maybe not how a young tech entrepreneur not beholden to a law society—is expected to navigate these churning waters. Streamlining processes and cutting corners is something that can get a lawyer in trouble, especially when trust accounts are involved, and the discipline digests are replete with examples made of lawyers who cut corners to improve processes.

— Connect with Nate @nrusse

Comments

  1. Nate, thanks very much for your insightful comments! (And yes, I definitely prefer “pragmatist” to “futurist.” :-))

    Your assessment that there are steep challenges facing the legal profession, and new lawyers in particular, is correct. Importantly, however, the technological, social and economic forces bringing about this new state of affairs are largely beyond the profession’s control — something lawyers generally don’t like to hear, because we like being in control, but that I nonetheless think is indisputable.

    For me, it’s not a choice between the legal world we used to have and the world that’s barreling towards us — the old legal world is out of our reach. Yet most of the activity I see among the organized bar in the US and Canada seems bent on trying to bring back an era that has passed, one in which there was a smooth, reliable, remunerative, and well-worn path from law school admission to partnership. Whatever its merits, that system is breaking down — for the latest example, look at Quebec, where articling vacancies have hit 18%. What is the Young Lawyers Bar there calling for? Restrictions on new lawyer entry. These are reflexive, protectionist responses to a new kind of problem we haven’t faced before.

    So the choice that actually lies before the organized Bar is how, if at all, we’re going to adapt to a new set of circumstances and a new legal market. What the CBA report recommends is acceptance of the emerging reality and adaptation to this environment at the earliest opportunity. It tries to forecast the nature of demand in the coming market, to figure out how lawyers can provide the most value in that market, and to recommend that lawyers obtain the knowledge, skills, networks and mindset that will allow them to do just that.

    I think your characterization that these are “business opportunities in the legal sector” is a fair one — but I don’t believe these opportunities are any less valuable, necessary, or important for not being traditional lawyer roles. The emerging reality is that people and businesses are going to get legal services how they want, from whom they want, at the price they want — the legal market is going to end up behaving like any other market, for better and for worse. There’s no rule of nature that says lawyers must be among those providers. If we want to serve this market, we’d better figure out in a hurry what it wants and skill up to provide it.

    This does not mean an abandonment of professional integrity or legal principles. If anything, it means the opposite: I’ve been saying for quite some time that in a crowded, noisy, multi-player marketplace, lawyers’ ability to stand out for quality, professionalism, and ethical behaviour is a competitive advantage. We should be prioritizing these skills and principles in legal education and bar admissions — but we haven’t been, not to the extent we should. Being a “lawyer” should mean bringing dedication to the rule of law to our work no matter what we do — that applies as much to a legal knowledge engineer or a legal project manager as it does to a traditional trial lawyer. But do our law school curricula reflect that? Do our CLE offerings?

    The CBA report is certainly candid about the challenges we face. But I’d prefer candour to nostalgia, and I think law students and new graduates will prefer it too. We need new strategies for maintaining the importance and relevance of the legal profession to the legal market and society in general, not to mention ensuring that people and businesses can get reliable, effective, ethical, and affordable legal assistance (which, it’s worth repeating, 85% of them do not under the extant system). The CBA report offers up one set of strategies and solutions, but there is certainly room for many others. Our young lawyers will welcome all the assistance of this type they can get.

  2. Thanks for taking the time to post here, Jordan. I just posted a response to Karen Dyck’s own thoughts about the DLD report and I won’t prattle on (much!), but I like your words above better than the introduction to the report which I just couldn’t square. I have always found your candour refreshing!
    I’d love to see more exploration of how we are going to package and sell the benefits of professional integrity in the new legal economy, and how we are going to preserve it as lawyers as a “profession” becomes more deregulated, less cohesive, and more rarefied.

  3. Nate:

    I have a nit to pick.

    My bias is that I started my own virtual solo practice heavy on technology a few years ago.

    When I started out, people with a great deal of experience told me that I was vastly underestimating my technology costs. The fact is, I was a database analyst and a computer programmer before I returned to University to study law. My estimates were very accurate, and my technology costs have been going steadily down.

    That’s me. Now the nit.

    You say that you would be in “good company” for thinking that automating yourself out of a job is a bad idea.

    Between being the person who knows how to automate their own practice and drive down the marginal cost of serving one additional person, and being the person who does not, and has to compete with someone who does, I can’t imagine why you would consider the latter the good company? Does good company assume that if they don’t do it no one will? Is primed for disruption good company?

    We have a real access to justice problem, and the idea of lawyers holding on to inefficient ways of providing services out of self-interest is counter to what is in the interests of the public that we are supposed to serve. Not to mention apologism for intentional inefficiency, which is a serious ethical problem. Not good company in my books.

    I know I’m not average. But the average is moving toward me. There are more and more of me. The tools out there are getting better and better, easier to use, and less and less expensive.

    To help answer the question of what we define as “better,” from my perspective a system is “better” if more people get more value and a more equitable share of the value from it. Is this new reality “better” for lawyers? Not generally. Not anymore that the new reality is “better” for newspaper reporters.

    But, consider this: for too many women, continuing to practice law privately is not a realistic possibility. We lose about 50% of women in private practice by year 8. Those are people who can, if they learn the tools available, realistically run flexible time home-based virtual law practices and continue to provide services as lawyers profitably. Is this new reality better for them? I’d say so.

    And is it “better” for the people we are supposed to be serving? I believe it will be, yes. We can either help our clients get there, or we can be left behind when someone else does.

  4. Hi Jason,
    Thanks for making this a more vibrant thread.
    I might take your “nits” one louse at a time, if that’s OK:

    #1 — that “good company” remark
    The DLD report talks about several “lawyer opportunities” which may supplant regular “lawyer jobs” in 10-15 years time. One of these opportunities is training learning machines. My point was that if this is really a “lawyer opportunity”, it won’t sound like a sustainable one to everyone. My point is you are in “good company” (not a value judgment — just a figure of speech) if you felt underwhelmed by this… or even threatened. You would be in “good company” if, like most law students and new calls coming up who do not own shares in an AI startup, you do not think that training a machine is a “better” career than the one you thought 3 years of law school tuition was going to land you. Remember, the audience for this report is young lawyers. I’m not saying people who automate aspects of their practice and are more efficient are not virtuous/good company. I’m also not saying that AI is “bad”. I am certainly not saying that firms who insist on charging $2 for every fax page are virtuous/good company. I’m just saying…

    #2 — the future may be “better” for techies, entrepreneurs, the justice system or even the majority of society, but it’s not looking “better” for someone with $80k in student loans who just finished a 3-year JD. I’m not saying we should rage against the machines or the dying of the light or send armies of articling students armed with foolscap and fountain pens to perish in the digital sand storms. I’m just acknowledging that these are not “better” conditions for the majority of those entering the profession.

  5. And I am just going to leave this link here, for those who don’t know I’m not really that much of a stick in the mud: link to Lawmaggeddon podcast

  6. #1
    I never thought you were accusing tech people of anything. I thought you were paying a compliment to people who see technology as a threat and not a tool.

    Those people always lose.

    #2
    why would we say by implication that the majority of new lawyers cannot be techies and entrepreneurs? I don’t see that. Is that true?

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