Column

Generalism and Access to Justice: Jack of All Trades, Master of None?

The rise of specialization is among the biggest changes in the practice of law over the past hundred years. Most lawyers and paralegals are increasingly able to focus on a smaller number of legal niches. That is good news, for practitioners and also for clients. However, I will suggest here that generalist legal professionalism has an enduring role in fostering access to justice.

Specialization and Generalism Defined

Consider all of the different types of legal need experienced by Canadian individuals, corporations, and state entities within a year. The list would include everything from drafting a will to structuring a merger to prosecuting an assault charge. What percentage of all of these types of need would a certain lawyer or paralegal be willing and able to work on? The lower the number, the more specialized that practitioner is. Generalism is the opposite of specialization. It means being willing and able to help with a larger proportion of all the legal needs that arise in potential clients’ businesses and lives.

The Appeal of Specialization 

The appeal of specialization quickly becomes apparent to anyone who practices law. First, each niche in which one practices requires a fixed investment of non-billable hours every year in order to stay current, whether one takes on a single file or 100 files. Fewer niches means less time keeping up with the law, and more time for client files.

Second, referral remains, for most firms, the dominant mechanism bringing new clients to the door. Specialization lets one develop a personal brand for expertise in an area, which generates referrals.

Third, specialization tends to improve work quality and outcomes. In one remarkable study from the UK, researchers obtained access to client files in specialist and non-specialist firms. The specialists tended to get better results. For example, in welfare benefit cases from this study, 29% of specialist firms obtained payments for their clients but only 13% of non-specialist firms did so.

The Rise of Specialization

These factors have long encouraged legal practitioners to specialize, to the extent that they can afford to turn down work outside the chosen niche(s). Empirical data shows that legal professionals are increasingly following this logic and specializing their careers within an small number of legal niches.

Moreover, the niches themselves are getting narrower. A phrase such as “wills and estates” was considered a specialist niche a few decades ago. It is now an umbrella term which contains actual niches (ie. estate litigation and estate planning) in which one can make a career.

Two phenomena have contributed to intensifying specialization in 20th century North America. First, increasing density of people and businesses, especially in urban areas, makes it easier to find sufficiently demand for a narrowly-defined practice. Second, increasing legal complexity has increased the time cost of staying current in a field, and reduced the number of fields in which one a single professional can be competent (or excellent).

The Value of Generalism 

Given all the advantages of specialization, what exactly is the defence of generalism? For those with corporate clients, generalism might mean understanding all of the common legal issues that arise within a certain industry. One well-known account divided lawyers in large Canadian firms into “finders, minders, and grinders” of corporate legal work. Rain-making “finders” of clients in business and social circles may find that generalist knowledge of legal issues helps them convince prospective clients of their firm’s expertise.

Generalism in Personal Plight Legal Practice

My new book (available free online from the Canadian Bar Association) focuses on personal plight law firms, whose clients are individuals with dispute-related legal needs. Personal plight is where our grave access to justice problem is worst. Generalism has a distinct role in creating access to justice in personal plight legal needs, attributable to the nature of these clients and their needs.

The average personal plight client is legally inexperienced. Legal consciousness is patchy at best; people struggle to perceive the legal dimensions of their life problems. Even when a person does perceive that the law is relevant to a situation, and decides to retain expert help, he or she will often not know (or not trust) a legal professional specializing in the appropriate niche.

For this reason, generalist legal practices (of the type that were more common 50 years ago) had an access-to-justice advantage over today’s niche boutiques. Generalism made it likely that the lawyer whom an individual already knew of and trusted would be able to actually help that individual with his or her legal need.

The rise of specialization may increase search costs – how much time and effort it takes to find a firm that can actually help. It may also, therefore, increase the number of people who abandon their rights because they cannot do so. Generalism has always been particularly important in isolated communities, where the number of legal practitioners is small and specialization is often economically impossible.

Fusing Generalism with Specialization

There are opportunities to fuse generalism with specialization, in order to combine the access-to-justice benefits of the former approach and the quality and efficiency advantages of the latter. Three practice models seem particularly promising:

  1. A specialist practitioner with diagnosis and referral generalism will be able to identify all of the major legal niches involved in a person’s situation, and direct the individual elsewhere for assistance or at least information.
  2. A front-line generalist is embedded in a community, such as a town or a linguistic or ethnic group. She assists clients with a wide variety of legal needs. However she has collaborative, perhaps long-distance relationships with niche specialists who may be located in larger cities. These specialists provide advice to the front-line generalist, and more advanced tasks (e.g. research or trial advocacy) may be subcontracted to them as necessary. Ken Chasse’s account of Legal Aid Ontario’s research service is an example of this type of relationship.
  3. The generalist firm of specialists. Larger firms can offer clients the best of both worlds: an institutional capacity to assist with almost any legal need, delivered by a workforce of niche specialists. Bay Street firms offer this to corporations; personal clients do not currently have the same opportunity in Canada. However in jurisdictions such as the UK and Australia, large and externally capitalized personal-client law firms are fusing generalism and specialization in this way.

Increasing specialization in the practice of law is both inevitable and salutary. However generalism – the ability of legal professionals to assist clients with a broad variety of legal needs – has enduring benefits for access to justice. A key challenge is to find practice models that simultaneously deliver the benefits of specialism and generalism to clients.

For more, please refer to Section 6.1.of Accessibility, Quality, And Profitability For Personal Plight Law Firms: Hitting The Sweet Spot, available now from the Canadian Bar Association Legal Futures Initiative.

Comments

  1. Agreed: affordability requires that the infrastructure for the delivery of legal services has to: (1) parallel that of the medical profession, i.e., specialist lawyers serving generalists; (2) thereby producing the highest degree of competence re every factor of production; and, (3) producing the large economies-of-scale required for affordable legal services. For example, legal research support services available to all lawyers at cost, i.e., because no law firm would have enough legal research work to afford such specialist lawyers, they would have to be made available to all lawyers by way of support services such as is LAO LAW available to all lawyers who do Legal Aid cases. And there are many other parts of lawyers’ work that can be more competently and cost-efficiently done by specialized legal research support services than general practitioners can do it. The general practitioner is much more than half of law society membership.
    Develop such support services or see the general practitioner’s market taken over by the commercial producers of legal services, e.g., LegalZoom, LegalX, Rocket Lawyer, etc. And also all standardized documentation and templates used by lawyers, including those used by Big Law also thusly taken over. Why pay Big Law’s legal fees to incorporate your company? In 2011, LegalZoom carried out 20% of the incorporations in California, which has a population slightly larger than that of Canada. So first they render the general practitioner obsolete, then chip away at and dice up that of specialized practitioners of all kinds. The only way to cope is to make legal services as provided by lawyers, affordable. Then we can advertise the great advantages of the solicitor-client relationship over the merely buyer-seller relationship of LegalZoom, etc.
    And the issue as to whether to legalize ABSs (alternative business structures, i.e., commercial & other investors able to own law firms) is very relevant to law societies’ ability to prosecute them in Canada for UPL (the unauthorized practice of law). That issue must be considered in the present context that our law societies have no program the purpose of which is to SOLVE the problem of unaffordable legal services, as distinguished from the “alternative legal services” programs, which merely help the population learn to LIVE WITH the problem. If ABSs in any form are legalized (as LSUC legalized the so-called “charity ABSs” at its September meeting last month), then all such producers should be allowed to similarly bring relief to the problem of unaffordable legal services, including the commercial producers, and all forms of ABSs. And so, LegalZoom etc., have not been hindered at all in their great expansion and success in the U.S. See: (1) Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN, October 5, 2017, pdf download); at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3020489;

    (2)Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (sections 8-10 (pp. 41-81) (SSRN, August, 2017, pdf. download); at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 .

    And the other response being used by law societies—“apps,” (applications of electronic technology to the production of legal services), won’t create affordable legal services. Making the producer itself more cost-efficient is never sufficient to produce affordable products and services, because the effect of increased cost-efficiency is limited by the manufacturing process to which it is applied. For example, no matter how much improved a bicycle is by adding a motor, better gearing, etc., it will not perform with the speed, capacity, and convenience of a motor vehicle. The method of producing legal services is very obsolete, i.e., making a cottage-industry method of production more cost-efficient will not enable the production of affordable legal services. See: (3) “’Apps’ and the Waning of the Solicitor-Client Relationship,” Slaw, October 3, 2017; at: http://www.slaw.ca/2017/10/03/apps-and-the-waning-of-the-solicitor-client-relationship/

    So: threaten law societies that if they don’t get competent to solve the problem of unaffordable legal services, then we must petition government to abolish law societies which would be the best thing that could be done for the population, the justice system, and the legal profession itself. But law society benchers won’t change until they are made to fear the consequences of not changing. But governments and the social media, and news media, and opposition political parties are not yet doing that. But eventually they will, if matters remain as they are. And so, the only way that the problem of unaffordable legal services will be solved is by way of government programs for socialized law. The Ontario Government could do that quite easily. Like Saskatchewan showed the way to socialized medicine in 1962 by way of the failed Saskatchewan Doctors’ Strike. But that’s an article for Slaw, next time.

Leave a Reply

(Your email address will not be published or distributed)