I spoke to the NABE conference about the future of bar associations and suggested a number of new themes or pillars upon which 21st-century bar associations could be built. One of these was "aspiration" — my belief that most lawyers aspire to the law as a higher calling; they deeply appreciate and cherish their profession and are immensely proud to be a member of it. These lawyers seek out others who feel the same way, and they will be drawn to an organization that is equally and demonstrably invested in this vision.

There are a number of ways in which bar associations can show their commitment to aspiration: take the lead on true public-interest issues, even (maybe even especially) if they don't always coincide with the best financial interests of lawyers. Emphasize the widespread practice of pro bono, which is an irrefutable demonstration of lawyers' commitment to social justice. Enhance the image of the law and the legal profession, but do it in quantifiable ways that matter to the public.

But there is one thing, I told the NABE audience, that you do not want to do. You do not want to invest in an advertising campaign to improve the image of lawyers. These things, I said, never work out the way you hope.

So what did I see, upon my return to Canada, on the front page of The Globe And Mail this morning? "Tired of being the butt of jokes, Ontario lawyers plan image overhaul," a report on the launch of the Ontario Bar Association (OBA)'s new image campaign. I'm going to annotate this article for you, because it illustrates, better than I could ever explain, why lawyer image campaigns are a bad idea.

A few disclaimers to start: I worked for the Canadian Bar Association (of which the OBA is a branch) for ten years. I occasionally do work for the CBA and I still count many friends in both locations (although neither may necessarily be the case after this post). I was involved with a similar image enhancement campaign at the CBA early last decade, and I saw first-hand just how little these efforts move the needle on the public perception of lawyers.

Here's the fundamental problem with image enhancement campaigns: they remind everyone, in spectacular fashion, that you have a terrible image. Nobody embarks on a campaign to change people's perception of them unless that perception is really negative, and campaigns to change that perception normally just provoke people to remember and reassert why they feel that way in the first place.

In the result, by trying to move people away from their negative beliefs, you end up breaking the cardinal rule of public relations: don't repeat the slander. As you'll see, this article demonstrates that rule in spades.

What do you call 18,000 determined lawyers with a generous war chest?

Answer: the Ontario Bar Association, which, fed up with being the butt of negative jokes about their profession, is launching a public-relations campaign on Thursday.

Not an auspicious start. "We're rich, and we're declaring war on your perception of us."

The object: to persuade people that, far from their time-worn image as greedy and over-aggressive manipulators, lawyers are actually problem-solvers, pillars of their communities and an indispensable cog in a healthy democracy.

Let's start a count of negative words and images about lawyers in this article: "greedy," "over-aggressive," "manipulators" — each receiving higher billing and more attention than the nice words later in the sentence.

… Brian Howlett, creative director for Agency59, said that lawyers' intelligence level and confidence may also be a turnoff.

"There is probably a bit of envy," Mr. Howlett said. "There may also be that insecurity you get when there is someone in the room who is smarter than you. The insight that stood out for us was that we all speak well of our individual lawyers, so why doesn't it transfer when people look at the whole industry?"

Seriously? The PR agency's head actually told the country's national newspaper that people are jealous because lawyers are so much smarter than they are? "Lawyers intimidate you because you're stupider than them." I can safely predict that this one line will get more play than the rest of the image campaign put together, and will undermine whatever good the campaign might do.

… "Criminal defence lawyers are the bottom of the barrel," [Ms. Jeethan] said. Not only are most of them poorly paid, Ms. Jeethan said, but the revulsion people feel for accused criminals is transferred to their lawyers."

"People say that lawyers are liars; that they are manipulative people who will turn any shade of truth gray," she said. "It's a sad thing because at the end of the day, this is a helping profession. You are an advocate for someone, representing their interests in society and in the courtroom."

I feel bad for Ms. Jeethan, who fell prey to the natural inclination to recite our sins before seeking correction and forgiveness. But this is a classic example of repeating the slander. "Bottom of the barrel," "poorly paid," "revulsion," "liars," "manipulative," "turn any shade of truth gray" (that last one is a nice turn of phrase, actually). If you were crafting an attack piece on lawyers, you could scarcely have chosen better language. Once again, the positive things, because they're trailing in the paragraph, have less impact.

[Mr. Sweeney] said lawyers feel deeply underappreciated for their social contributions and the role they play in solving problems. In fact, Mr. Sweeney said, lawyers devote a great deal of time to negotiating and mediating outside the courtroom; contributing legal expertise to charities and community boards; and, as politicians, helping ensure that legislation and regulations are legally sound.

See, here's the problem: "lawyers feel deeply under-appreciated." That's why this campaign, and all campaigns like it, was funded and launched: because lawyers feel they don't get the credit and adulation they deserve. But this is also why these campaigns fail, because people don't care if lawyers feel under-appreciated. It's not a problem for them. It doesn't bother them in the slightest.

It does bother them that lawyers — whom they perceive, accurately, to be among the more prestigious, well-connected, and higher income-earning groups in the country — still aren't satisfied. And they resent the implication that they're the ones at fault, for failing to appreciate the beneficent presence of the legal profession in their lives. We all know people who complain about how they never get the credit they deserve. We all find these people universally annoying.

Oh, and by the way: pointing out that lawyers are also politicians is not what I would call a surefire way to improve the public's opinion of us.

"We are trained to think critically about issues; to argue appropriately; to advocate on behalf of a position," Mr. Sweeney said. "Those are skills we value. Words are what we use."

This is a great example of the disconnect between how lawyers think and how everyone else thinks. From a lawyer's point of view, these are all important, positive, and admirable attributes. From everyone else's point of view, these are, at best, neutral. And when lawyers say, "We advocate on behalf of a position … words are what we use", people hear, "We'll say whatever our clients want us to say to help them get what they want." That might not be what we mean, but it's what people hear, and they have at least some cause to believe it.

"The typical campaign would have painted them as the champion of justice and put them on a pedestal," Mr. Howlett said. "Our objective is to humanize the lawyer, to take them off the pedestal."

It's safe to say the pedestal is out of play.

"We knew this couldn't be done overnight," Mr. Howlett said. "We aren't launching a new flavour of Coca-Cola, where people decide in a week if they are going to like it. We are working toward an attitudinal shift.

The launch of New Coke, most likely the biggest marketing disaster in business history, is not an example I would have used to describe my clients' PR situation.

And finally, here's the capper: the sidebar that accompanies the article. Because what else should you expect, in a story about lawyers' image, but that the lawyer jokes would come rolling out?

There are a plethora of clichés and misperceptions about lawyers – and accompanying jokes.

THEY ARE GREEDY

What's the difference between a mosquito and a lawyer?

One is a blood-sucking parasite, the other is an insect.

THEY ARE DISREPUTABLE

Why do they bury lawyers under 20 feet of dirt?

Because deep down, they're really good people.

THEY ARE DISHONEST

Why should lawyers wear lots of sunscreen when vacationing at a beach resort?

Because they're used to doing all of their lying indoors.

THEY DON'T HAVE A SENSE OF HUMOUR

What's the problem with lawyer jokes?

Lawyers don't think they're funny, and no one else thinks they're jokes.

Now, to be clear, I expect better than this of the Globe and of Kirk Makin, the author of this story: this sidebar is the worst type of recycled cheap-shot filler. But the media's response to a story like this is entirely predictable. There are lawyers right now complaining about how the Globe took quotes out of context, paid more attention to the stereotypes than to the reality, and used the campaign to poke more fun at lawyers. But this is the nature of the beast. If anyone was seriously anticipating a warm, glowing tribute to the graces of the legal profession to emerge from this campaign launch, they were not remotely familiar with the modern press.

So, let's recap all the negative terminology used in this article about a lawyer image enhancement campaign:

greedy
over-aggressive
manipulators
Bottom of the barrel
poorly paid
revulsion
liars
manipulative
turn any shade of truth gray
GREEDY
blood-sucking
parasite
DISREPUTABLE
DISHONEST
lying

Here's the bottom line: when you start talking about your bad image, people think about … your bad image. More importantly, they see that your image is the most important thing to you — not the reality that informs your lives or their lives. Lawyers who launch image improvement campaigns come across to those they hope to reach as vain, self-regarding and pompous. Worse, they come across as out of touch about the real problems real people have with the real justice system.

Lawyers constantly say that if only people knew how much lawyers contributed to society, they would appreciate lawyers more. This is not true. Even when people learn about lawyers' societal contributions and (perhaps grudgingly) admit these are good things, they tend to regard these as ancillary to lawyers' primary function and overriding behaviour, and probably interpret it as self-serving.

If lawyers want to improve their image, we can start by improving reality. Make the justice system swifter, more transparent and more even-handed. Find ways to make the price of lawyers' talents and efforts affordable to more than 20% of the population. Push harder for principled conduct rules and fewer obstructive tactics in litigation. And stop trying to put out of business lower-cost competitors who might be able to serve the very people who think so poorly of us in the first place. Think more and do more about the reality of clients than about the image of lawyers.

The one thing you learn when you try to improve your image is all the reasons why your image is so bad. If lawyers want better public perception, we need to understand why it's so bad in the first place.

Here are two excellent summaries of what went down at the Futures Conference:

• Ron Friedmann of Fireman & Co., co-chair of the conference, published an extensive report at his Strategic Legal Technology blog titled “Overview of the New Legal Normal.” Key quote: “One panelist noted that given how many consumers cannot afford legal representation, it is morally reprehensible that lawyers deploy so few automated systems. I agree and would add that if general counsel were not cut of the same cloth as BigLaw, they might well call the limited used of tech by the AmLaw 200 scandalous.”

• Tim Corcoran, who has superbly taken over from me as Chair of the College’s Innovation Awards, published an equally insightful summary, “What Looks Good for the Future?” at both his own blog and Attorney At Work. Key quote:

The new breed of law firm leader recognizes the critical necessity of strengthening the firm, even though the policies necessary to achieve this outcome tend to weaken the traditional stranglehold of top rainmakers on the firm. Until this tension is resolved, law firm leaders are competing at a significant disadvantage.

I thought you’d also be interested in seeing the complete list of inductees to the College’s ranks in 2012. I’ve attended every induction save this one since 2006, and this is one of the strongest classes I’ve seen:

• Toby Brown, Director of Strategic Pricing & Analytics, Aiken Gump
• Jeff Carr, Vice President, General Counsel & Secretary, FMC Technologies, Inc.
• Lisa Colpoys, Executive Director, Illinois Legal Aid Online
• Beth Cuzzone, Director of Client Service & Business Development, Goulston & Storrs, PC
• Robert Cohen, Executive Director, Legal Aid Society of Orange County, CA
• E. Leigh Dance, President, ELD International, Inc.
• Carolyn Elefant, Principal, Law Offices of Carolyn Elefant
• Susan Hackett, CEO, Legal Executive Leadership, LLC
• Luz Herrera, Assistant Professor of Law, Thomas Jefferson School of Law
• Matthew Homann, President and Founder, LexThink LLC
• Bonnie Hough, Supervising Attorney, Center for Families, Children & the Courts for the Judicial Council of California
• Patricia Lane, Director of Administrative Services, McKenna Long & Aldridge
• Beverly Loder, Director of Marketing, Fitch Even Tabin & Flannery LLP
• John Mayer, Executive Director, Center for Computer Assisted Legal Instruction
• Merry Neitlich, Founder Partner, Extreme Marketing
• Richard Nigon, Chief Financial Officer, Robins Kaplan Miller & Ciresi, LLP
• Lucian Pera, Partner, Adams and Reese
• Jim Sandman, President, Legal Services Corporation

Next year’s Futures Conference will he held in Chicago at an autumn date to be determined — keep an eye on the College’s blog for updates.

I visited my local Service Ontario office recently to do something the government requires of me every five years: renew my driver's license. Fifteen minutes, a few signatures and a couple of photographs later, the deed was done, and I received my new license by registered mail a couple of weeks afterward. Couldn't have been easier.

I did have to prove a number of things before I could get my new license, mind you. I had to bring in my passport and birth certificate, attest in good faith that I was a citizen of Canada, that sort of thing. Interestingly enough, however, the one thing I wasn’t asked to prove during the whole process — they didn’t even bring it up, in fact — was this: am I still a competent driver?

It's actually kind of remarkable, when you think about it, that the driver's test you passed as a teenager gives you lifetime access to steer a vehicle on public roads. Short of criminal convictions for reckless or illegal driving, your license is pretty much a permanent possession, regardless of how much your skills and attention behind the wheel slip over the ensuing decades, how careless you become with rolling stops or how incompetent you remain at parallel parking.

Much the same problem bedevils the legal profession. The law degree attained, the bar admission course passed and the articling period completed — all in the space of a few short years in your professional youth — grant you the right to call yourself a lawyer and sell legal services for the rest of your life. Few lawyers find this incongruous, although I suspect many people outside our profession do.

But at least, you might object, unlike with driver's licences, we have continuing professional development — and in a growing number of jurisdictions, mandatory CPD — to assure our ongoing competence. In fact, I would submit, we have nothing of the sort. CLE and CPD are the professional equivalent of driver's license renewal. They roughly correspond to showing up with your passport and getting a new picture taken.

You don’t have to prove you learned anything by sitting through yet another series of CPD lectures. You don’t have to prove you even paid attention as the presenter read out the contents of yet another PowerPoint slide. And you especially don’t need to prove that, having taken the course, you’re now better able to provide services to the public.

CPD isn’t like taking your driver's test again. It’s like sitting through driver's ed again, only this time with a thick binder of updates about the new rules of the road and with no examination afterwards. In both cases, competence testing is forensic. We find out who the bad drivers are when they wreck their cars. We find out who the bad lawyers are when they wreck their cases or their practices.

These thoughts occurred to me when reading a provocative article by Gyi Tsakalakis at Lawyerist.com called "Licensed vs. Competent," a title that sums up very nicely the distinction we should be drawing here. Gyi quotes a comment by Andy Mergendahl that cuts to the heart of the matter: A lawyer is presumed competent if she has a law license. That, I think, is a convenient but dangerous presumption for the legal profession to make. Gyi goes on to ask a series of hard questions:

But does being licensed mean that she is competent to practice law in any case or matter before the courts in that jurisdiction? Should it? I don’t think that many of us would disagree that, today, the size of the gap between licensed to practice and competent to practice ranges wildly from case (or matter) to case, as well as, from lawyer to lawyer. I think it’s pretty clear that law schools don’t teach law students how to be lawyers.

We can easily think of cases and matters that could be competently handled perhaps by 90% of the lawyers licensed to handle them. We can also easily imagine cases that are better left to only a very small percent of the exceptionally experienced and skilled. And everything in between. But when it comes to deciding who is competent to take what cases, when and why, who decides the “who”, “what”, “when”, and “why”?

Clients? I’m as much a buyer-beware person as the next, but isn’t the very reason for licensing and regulation, at least in part, to protect the public from incompetent lawyers? Law schools? Ahem, not in their current state. And what does it mean to be competent? Knowledge? Skill? Experience? Preparation? Is there an emotional component to being a competent lawyer?

These are questions, I submit, that our governing bodies (and by extension, we ourselves) have failed to really confront. The whole debate over articling reform comes down, as I've argued previously, to the question of whether articling is meant to ensure competence. But let's say, for hypothetical purposes, that we did come up with an affordable and practical articling system, one that could satisfy outside observers that new lawyers are competent to practise law. What about five years after that? Ten? Twenty? Those latter stages of their careers, in fact, at which they're probably handling the most significant matters of their lives — how do we know whether they're still qualified then?

I don't have ready answers to any of these questions, but I strongly suspect that they'll be asked with increasing frequency and urgency, and not always by lawyers. In medical circles, the rule for training surgeons is: “Watch one, perform one, teach one.” Nothing like this exists in the legal profession, outside the most devoted practitioners of intense, one-on-one mentoring. Will we see that standard mandated to ensure lawyers' competence, perhaps on an annual basis? If not by lawyers, then by an authoritative third party?

It's the simplest things that escape scrutiny, the longest-standing assumptions that are examined the least. Lawyers have always had lifetime licenses to practise law, and we may have forgotten how unusual that is. We should be prepared for someone to remind us.

You’ve probably seen the movie by now, and you might even have read the book; in either case, you’ve likely seen the clear potential for the application of Moneyball principles to the legal market. Several smart observers (and one not-so-smart) have already seen it and written about it, including Paul Lippe, Patrick J. Lamb, Lisa Salazar, and the good folks at Lawyer Metrics and the Harvard Business Review. I recommend all these articles to you and encourage you to adopt the “thinking differently” approach that they embody.

For myself, I want to write what will probably be the last law-related Moneyball article for a while, in order to touch on two subjects. First, and briefly, will be the shortcomings of Moneyball theory. The second, at more length, will be the most obvious application of Moneyball principles to the law, which relates to the assessment and acquisition of talent.

For the record, I’m very much a believer in the overall theme of Moneyball, which is that rethinking traditional practices in light of new metrics and philosophies is a powerful recipe for game-changing innovation within your organization. But the movie doesn’t always do justice to the book (nor should it be expected to), and the book doesn’t always do justice to reality.

Many of Beane’s counter-intuitive “we’re not selling jeans here” amateur draft picks, for example, came to very little — or at least, less than would be expected from the high positions at which they were drafted. In addition, many baseball people will argue persuasively that three young pitchers named Tim Hudson, Mark Mulder and Barry Zito — drafted according to traditional assessment principles — had much more to do with the A’s success than Scott Hatteberg ever did. There are other nits that could be picked, but my overall point here is not to buy up all the available hype about Moneyball.

That said, and this is my second point, there really is a great deal that every organization, and especially a law firm, could take from Billy Beane’s approach. To my mind, the most obvious — and I’m frankly surprised that no one has so far explored this — is in the same area in which Beane went to war with his own scouting department: talent recruitment. Law firms do many things less well than the business world in general, but perhaps nothing so poorly as identifying talented new graduates coming out of law schools.

Ask your average law firm what they’re looking for when they go into law schools to find new articling students or associates, and they’ll give you depressingly similar answers: high academic achievers who present well in high-pressure interview situations. It doesn’t seem to occur to law firms that every other firm is looking for the same traits, such that they are collectively piling tremendous demand into a small supply of talent and inevitably pushing up its price (and eliminating the chance that different skill sets and life experiences will enter their firms).

It also doesn’t seem to occur that they’re making a startling number of assumptions in this process. They assume that good marks in law school courses are a direct indicator of high intelligence easily adaptable to a law firm environment, when in fact the only thing high law school marks indicate is the student’s ability to score well in law school courses, something they will never be called upon to do in a law firm. Nor does it seem to occur that the very courses in which firms seek students with high marks are the same courses that they and their firms routinely disparage as being irrelevant to the legal practice world.

Firms also assume that law schools themselves have done a good job of screening candidates during the admission process, even though I doiubt one lawyer in a hundred could tell you much about the admissions policies and practices of the three law schools from which they draw the most new lawyers. And most disturbingly, firms assume that the “status” or “prestige” of a given law school is a direct indicator of the quality of the lawyers that schools graduates. “Lesser” law schools — and firms define these schools pretty much identically — are given second- or third-class status in the minds of interviewers and hiring partners.

Law firms have perfected the art of identifying high-achieving graduates from prestigious law schools. But they have made no progress in specifically identifying great lawyers at the start of their careers who have the best chance of contributing tremendous value to the firm for the next 5 to 25 years. That must surely be the result they want; but that result has no verifiable causative relationship with the processes they’re now employing.

What would a Moneyball approach to “drafting” new legal talent look like? Here are a few ideas.

1. Identify precisely what qualities you’re looking for. Do you want your firm filled with people who know how to score an A on a three-hour 100% final exam and who can rattle off good answers to interview questions? Or do you want your firm filled with hard-working, assertive, self-starting lawyers who can reasonably be forecast to bring value as both associates and partners? If it’s the second outcome you’re seeking (and I can only guess that’s the right answer), why in the world are you screening for the former while collecting virtually no data on the latter?

2. Create measures by which you can identify these qualities. Here are some characteristics I would want to see in a new associate: work experience prior to law school (ideally in a small-business environment); demonstrated examples of leadership in small-group settings; extraordinary written and spoken communication skills; cross-cultural experience (ideally with a second or third language thrown in); and a knack for prioritizing and managing multiple demands. That looks to me like the profile of an outstanding partner in the year 2026. It’s not hard to detect these qualities; all you have to do is look for them, ask for them, and test for them.

3. Examine your assumptions about law school prestige. Too many law firms focus on the “best” schools (by which they actually mean the most well-known schools, or perhaps those from which certain partners graduated), failing to consider the excellent talent that can be found in virtually every law school nationwide. Does a top student at a “lower-tier” law school demonstrably have less potential to become an outstanding lawyer than a mediocre student at an “upper-tier” law school? No metrics support that contention, yet firms behave is if it’s a proven axiom.

I’ve written before about the preponderance of “belief-based” rather than “reality-based” behaviour within law firms, and it seems to me that talent identification and acquisition fits nicely into the former category. The steps and approaches I’ve outlined above don’t require much more work to implement; but they do require a degree of courage to change the way things are done after years of always doing them a certain way. Finding and acting on that courage is the real message of Moneyball, and there’s no better place to start than in the legal profession’s version of baseball’s amateur draft.

The most recent Canadian Bar Association annual meeting just wrapped up in Halifax, and while I missed this one, I attended many previous editions (more recently called Canadian Legal Conferences) while with the CBA. 

At each CLC, I came to notice, Chief Justice Beverly McLachlin’s keynote address could always be counted on to include a call for the legal profession to do more pro bono work. I suppose the fact that this is an annual request from the chief justice indicates that it’s not generating the results she might like to see. 

But it does illustrate the fact that when members of the judiciary address the issue of access to justice (as they should), it’s all but inevitable that they’ll ask lawyers to make our services more affordable (again, as we should). That’s all fine, as far as it goes.

My problem is with classifying pro bono work as just another aspect of access to justice, which is something that everyone in the legal community now tends to do. If you’ve read even some of what I’ve written on the subject, you’ll know that A2J is important to me. But pro bono goes beyond issues of access.

Pro bono publico means “for the public good.” It represents, to my mind anyway, a class of legal services that meet two criteria:

1. the provision of legal services for the party in question would qualify as an overall “social good,” beyond the party’s immediate interests (or alternatively, the failure to procure these services would qualify as a “social bad,” if you will); and 
2. the party does not have the financial resources to obtain these services (including through alternative arrangements such as contingency fees).

We tend to lump pro bono together with legal aid as two measures by which people can be helped towards obtaining a lawyer’s services. But legal aid is a different animal: it’s a broad social remedy to the problem of people with legal needs who can’t afford a lawyer’s help, regardless of the merit of the party’s claim. Pro bono legal services are meant for cases with specific social merit and/or a higher social purpose, one that the lawyer is called on to advance as part of her professional responsibility. These two concepts may be in the same church, but they’re in different pews.

It seems to me that as a profession, we’re losing some of our focus on the nature and purpose of pro bono. I know of lawyers whose clients have run out of money (a common occurrence in low-income or legal aid cases) but whom they continue to represent because of their own personal sense of decency; they refer wryly to this situation as “involuntary pro bono.” I appreciate the humor, but I think it further blurs the distinction between legal aid (a social responsibility) and pro bono (a professional undertaking). Lawyers in this situation are subsidizing society’s underfunding of legal services for the poor, not taking on cases of intrinsic merit.

I recognize, believe me, that lawyers and law firms in Canada are carrying out a tremendous amount of actual pro bono work right now, and we should applaud their efforts and encourage more of the same. I just think we should glance up every now and then and re-acquaint ourselves with the bigger pro bono picture. And as it happens, I have an opportunity here for lawyers and legal organizations in Canada to do just that.

I provide a small amount of complimentary assistance to a few A2J and pro bono organizations in the US and Canada. One of those entities is Pro Bono Net, a national nonprofit based in New York, which supports the innovative and effective use of technology by the non-profit legal sector, increases participation by volunteers, and facilitates collaboration among non-profit legal organizations and advocates. Pro Bono Net took home an InnovAction Award last year for its LawHelp Interactive program, which helps low-income people quickly and easily complete essential legal forms online for free.

Another innovative PBN initiative is Pro Bono Manager™, an application developed with funding from the Bill & Melinda Gates Foundation. PBM helps law firms manage their pro bono program more efficiently and effectively by lowering lawyers’ volunteer threshold, aligning pro bono programs with firm goals, and maximizing pro bono management time. Major global firms currently using PBM include Paul Weiss, Weil Gotshal, Orrick Herrington & Sutcliffe, Ropes & Gray, Linklaters, and Kirkland & Ellis. 

Pro Bono Net wants to expand Pro Bono Manager to Canada, and has received strong expressions of interests from some of this country’s biggest firms. Here’s the problem: PIPEDA prohibits Canadian law firms from placing sensitive data in the US, so a parallel hosting environment for the product is required outside the US in a location that conforms to Canadian privacy laws.

As a nonprofit in today’s economic climate, Pro Bono Net would be hard-pressed to cover the $50,000 to $100,000 price tag this solution requires, so it’s looking for a Canadian funder to follow the lead of The Gates Foundation and finance this project. Is this your law firm, legal organization, or law foundation? If it is, or if you’d like to learn more, contact Adam Licht at Pro Bono Net. 

Pro bono is a self-imposed professional duty that crosses borders, firm types and practice areas; it’s one of the aspects of our profession of which I’m proudest. If you’re doing pro bono work, good on you; if not, today is not too late to start.

You might have read last month that the Law Society of Upper Canada is worried about the newest articling crisis in Ontario. So worried, in fact, that it’s going to set up a working group to examine the problem. 

I don’t mean to belittle this effort, which is surely well-intentioned. But few subjects have been studied, task-forced and working-grouped more than articling (Ontario’s last kick at this can was in 2008), so it’s difficult to believe this new version will deliver different results.

What’s the nature of the latest crisis? According to Law Times:

• The number of registrants in the LSUC’s licensing program has steadily increased over the last five years, from 1,400 in 2006 to 1,750 in 2010. (Although this should come as no surprise to law societies, since most law schools in Canada have increased the size of their classes over the last decade.)

• In 2008, 5.8% of applicants ended their first year in the licensing process without an articling position. In 2011, that rate had more than doubled to 12.1%. (Although that still means 87.9% of applicants do get articles, a pretty good number that, considering only 68% of 2010 law grads in the U.S. have legal jobs nine months after graduation, is arguably phenomenal.)

• Even more law graduates are expected to enter the Ontario market over the next few years, from the University of Ottawa, Lakehead University, the University of Montreal, Thompson Rivers University, and overseas. (Although the ongoing problem with articling didn’t prevent the law society from approving the new law school at Lakehead earlier this year.) 

It seems to me that it’s time we went back to basics. Rather than trying to fix, save, or even junk articling, we should be asking ourselves why it exists — what problem it’s meant to be solving. Asking that question takes us down some interesting roads.

The why of articling

Articling can be defined as an intermediate stage between education and practice, an apprenticeship through which a novice lawyer learns the art and mechanics of professional practice from an experienced practitioner. It’s on-the-job training to help improve new lawyers’ skills. Robert Shawyer, in the Law Times article, sums up the popular view: “School can only teach so much. It’s the real-life experience of working under a lawyer and getting your feet wet in the client’s file that teaches you how to be a lawyer.”

That’s nice and all; but why does articling matter so much that we make it a mandatory element of bar admission? Well, without articling, new lawyers presumably would enter the profession lacking an appreciation of how law is actually practised and lacking any experiential knowledge of court procedures, client interaction and the like. They wouldn’t know what they’re supposed to be doing, which would be unfair to them and especially to their paying clients. 

That, fundamentally, is why students without articles are barred from practice. Articling is more than just a nice-to-have internship experience. It’s a quality assurance program that provides lawyers with the tools to justify admission to the bar; without it, they’re not fit to represent clients. 

That’s what we tell ourselves, at any rate. But there are at least two problems with this reasoning.

First: if articling is so important, why is it so brief? Trainee solicitors in the U.K. spend two years apprenticing. Germany’s Referendarzeit training period is likewise two years. Medical internships in many countries can last up to seven years. Even our own law degrees take three years to complete. Measured against these standards, one year of articling seems an awfully short time to ensure a new lawyer has grasped the complex technicalities and significant responsibilities of law practice.

Secondly, if articling is how the profession discharges its responsibility to ensure new practitioners’ competence, why is the process almost completely privatized? Through articling, law societies have effectively outsourced the practical training of new lawyers to the private sector, reserving only a minimum of oversight to themselves. Giving over the central aspect of new lawyers’ quality assurance to law firms is an interesting way of exercising regulatory authority.

If we really believed that articling is to ensure new lawyers are competent enough to practise, we’d be a lot more demanding about it. We’d make it a minimum two-year requirement (probably longer) and we’d enforce detailed guidelines for its administration. (We’d also rebuild our law schools from the ground up, but let’s tackle one implausible task at a time here.) We do neither of these things, however, because quality assurance was never really the point of articling. 

Articling, when you get right down to it, is vestigial — it’s a relic of informal apprenticeship from the profession’s earliest pre-law-school days, when there were few other ways to become a lawyer. Read this lively account of articling in British Columbia in the early years of the 20th century and you get a sense of why articling evolved and what it accomplished. 

How articling started is how it continues. Articling is one year long because it’s always been one year long. It’s administered by the private bar because it’s always been administered by the private bar. There are no other reasons.

Today, however, lawyer training is far more sophisticated. Canada has more than 20 certified law schools, bar admission programs operated by law societies in every jurisdiction, and a CLE system that’s never been deeper or more sophisticated. With all these tools at our disposal, we shouldn’t really need a mandatory apprenticeship system anymore. So why do we still maintain one?

Because we also have an ongoing issue with the competence of practitioners, especially new ones. Our law schools don’t provide professional training and it’s unlikely they ever will. Bar admission courses are brief and devote a fair percentage of their time to re-teaching law school courses. About half of all lawyers, at best, use CLE regularly, hence the current fascination with mandatory continuing professional development.

The thing is, we don’t actually have a way to ensure the competence of new lawyers — and for a self-regulating profession invested with so much of the public trust, that’s more than a minor problem. So we’ve tried to reconstruct articling — a decentralized, informal apprenticeship process — as a quality assurance program for ourselves and for the public. But that was never its purpose and that’s not how it evolved. No wonder it’s not working especially well.

Articling is a 20th-century square peg, and it’s a perfectly fine square peg as far as it goes. But trying to pretend it’s meant to fit into a 21st-century round hole is an exercise in frustration. I suggest we stop trying to do that.

Back to first principles

The articling crisis will be resolved when we fully face up to our new lawyer competence challenge. If we’re serious about ensuring new lawyers are fit to represent clients, then we should continue to enforce a mandatory articling period — but we should be much stricter about its requirements and implement a higher degree of regulatory influence over its application.

Conversely, if we’re not serious about ensuring new lawyer competence, or if we conclude that articling is not the appropriate vehicle to accomplish that goal, then we should remove it as a mandatory step for bar admission. Maybe, in that scenario, articling will evolve into a privately administered skills-training program — kind of a professional LL.M. in law practice for which new lawyers pay fees. Or maybe, like all vestigial features, it will simply fall away over time.

Either way, let’s start to address the underlying issue. The way to “fix the articling problem,” it seems to me, is to stop trying to fix articling. Let’s figure out what we’re actually trying to achieve through the use of articling, and create structures and systems specifically tailored to address those needs. 

And in that context, let’s be honest with ourselves about whether and in what ways articling serves the interests of the modern legal marketplace. The current state of affairs is unsustainable, and trying to sustain it much longer is going to hurt.

After speaking at the Legal Marketing Association Annual Conference in Orlando earlier this month, but before flying home, I managed to catch the event’s keynote presentation. It was delivered by Jeff Williford, a facilitator with the Disney Institute, which manages the Disney Corporation’s professional development and corporate culture. He described Disney’s disciplined approach to creating a business culture and applying it throughout the company's 60,000-strong workforce. Law firms could stand to adopt a few of Disney’s philosophies in this regard (though maybe not the company’s custom of referring to its employees as “cast members”).

One of Jeff's observations stood out for me: the importance of personality and demeanour in Disney’s hiring decisions. Simply put, it matters to Disney whether people are nice: are they pleasant? Do they smile during interviews? Will they relieve or contribute to tension for colleagues and customers? For a company that lives and dies by its brand and customer experience, niceness is crucial: if Disney has two equally qualified potential employees, they'll hire the nice one.

Try to imagine that philosophy adopted in your average law firm; it’s not easy. Lawyers are recruited and hired for many reasons, but niceness is not usually high on the list. It sometimes seems, in fact, that some law firms go out of their way to de-emphasize demeanour in their personnel decisions. The most important people in many law firms of all sizes, in terms of income, influence, and business development, are often the most unpleasant, difficult and cantankerous ones.

It beats me why this is so often the case. Maybe power corrupts, or maybe the same personality traits that make an outstanding rainmaker, deal-closer or litigator also tend to produce obstinate, selfish or arrogant personalities. But it’s not a trivial matter. The rest of the firm notices when behaviour that would get a clerk fired on the spot is overlooked if exhibited by a rainmaker. The lesson is clear: the more influence you have, the more you can be an utter pill, with impunity. Law firms worldwide send that message through their ranks every day.

There’s really no reason for niceness to have so little currency in law firms. Just as much as Disney, we’re in the relationship business: the real value we deliver resides not in the quality of the documents we produce or even the advice we render as in the impact we have on others. Clients remember whether dealing with their lawyer was a pleasant experience or a harrowing one. Very few client recommendations mention quality of legal work, but quite a few mention thoughtful behaviour and personal interaction.

Perhaps more importantly, niceness also has an internal cultural value. How much talent has walked out law firm doors because of the poisonous atmosphere clouding the office of a powerhouse partner? How many training dollars are wasted replacing people who simply don’t want to put up with nastiness every day? And how often does the firm’s most difficult personality end up setting both the firm’s tone and its agenda? Conversely, think of the fervent tributes paid to retiring partners who were as pleasant and thoughtful to others as they were skilled and respected by their peers.

I would go farther than Jeff. I would say that if one law firm candidate were superior to another, but was noticeably less nice and less pleasant, I would favour the nicer one. I would actively seek to penalize difficult personalities in the recruiting and retention process. If you’ll forgive the terminology, I would adopt the “No Assholes” rule and I would apply it even to the best corner-office rainmaker ever to walk the earth.

Patience and kindness, remarkably enough, seem to be a source of market inefficiency in the legal sphere: they are undervalued relative to their contribution to the firm’s overall success. Take advantage of that market inefficiency by making demeanour a real and substantial factor in recruitment and retention. Lawyers often talk about the massive morale benefits of firing their worst clients; think of the benefits of firing your nastiest lawyer. It might just leave everyone feeling like they’d gone to Disneyworld.

We’ve spent the last few decades building up a series of myths about legal education. I’d like to take a moment to deconstruct a few of them.

1. The law school from which a lawyer graduated is a relevant and reliable indicator of his or her quality.

This is the pedigree myth. Law firms for years have used “law school reputation” as a handy shortcut to avoid the hassle and expense of actual hard-nosed assessments of a candidate’s qualifications and potential. I’ve met lawyers from schools at the “top” and the “bottom” of the traditional rankings, and I’ve not seen any demonstrable difference among them in terms of intelligence or aptitude (though I’d be open to an argument that lawyers from less-regarded schools might work harder to overcome perceived shortcomings). 

Why is there no real difference among the graduates of schools at different points on the pedigree pole? The reason, at least in part, is that there’s very little difference among law schools in how they teach law: the same basic template is applied and delivered at almost every school. This is not a fact that law schools, especially those in the upper half of the rankings, want advertised: their reputations (and their concomitant financial benefits) rest on the unspoken assumption that the quality of their degree is better. I think it’s time we spoke about, and questioned, that assumption.

2. Thanks to ever-increasing tuition, law school is now a prohibitively expensive investment.

There’s no denying the increase: tuition in my last year at Queen’s Law School in 1993 was $2,300; today, it’s closer to $15,000. And while tuition has risen sharply in most of Canada (Quebec mostly excluded) over the past 20 years, it’s as nothing compared to the American experience, as detailed by this now-infamous New York Times article in January that profiled law graduates with a quarter of a million dollars in debt and no immediate prospect of work. It’s popular to blame high tuition for a variety of ills, especially the inability of new graduates to work anywhere but in a large law firm to pay down their debts.

But let’s look at this a little more closely. Canadian Lawyer’s 2010 compensation survey found that the median annual salary of associates ranged from $62,000 to $100,000 over a lawyer’s first seven years. Partners, of course, report much higher annual income: 22% make between $50,000 and $100,000, another 22% earn from $100,000 to $150,000 and more than 46% make more than $150,000 a year (including 7% above $450,000). Even $100,000 to $150,000 a year will keep a roof over your head and food on the table in most parts of the country, and many lawyers will surpass those numbers eventually. Given that most legal careers run at least 30 years, even a student emerging from law school with $100,000 in total debt (not an uncommon occurrence) who pursues a private law career can expect to be debt-free within the first third of that career; that’s a pretty decent return on investment. Government lawyers don’t do badly in the long run either.

Absolutely, if you run up $100,000 in debt to get a law degree and either can’t get or don’t want a legal career, you’ll find yourself questioning the wisdom of the investment. If you’re going to law school to “find out if you want to be a lawyer,” don’t. But compared to other professional fields, which often require longer and more demanding matriculation periods at equal or higher rates, law is a pretty good bet. Past performance is no guarantee of future prospects, of course, and the legal profession will see a profitability hit over the next decade or so. But we shouldn’t talk ourselves into believing that the price of admission to the legal profession clearly outweighs the financial benefits thereof.

3. Law schools are failing in their mission to prepare graduates for the practice of law.

The purpose of law school is not to prepare graduates for a legal career. The purpose of law school is to grant law degrees, which are essentially undergraduate primers on legal principles, legislation and case law. Law schools don’t teach their students to “think like lawyers,” which is their standard promise; they teach students to think like law professors, which is hardly surprising given that law professors, not lawyers, determine the curriculum and do most of the teaching. Moreover, law professors are not even employed primarily to teach: their main job is to write and publish, and teaching is an afterthought. This is not a terrible new truth recently revealed by Wikileaks; this has been standard operating procedure in the legal education system for many decades. The only mystery is the profession’s continued refusal to see and acknowledge these obvious facts.

If you want a law degree to focus exclusively on legal career preparation, that can be arranged. Several US law schools have changed their curricula to cater primarily to future lawyers, and the UK’s two leading private schools, BPP and the College of Law, have introduced two-year practice-focused degrees. Such degrees likely will fail to deliver in jurisprudential philosophy what the standard law degree fails to deliver in practical career preparation, but at least they will be closer to what the market says it wants. 

The main thing is to dispense with the notion that a law degree guarantees fitness for a legal career simply because the legal profession has chosen to make it a de facto entrance qualification. Law degrees are not business degrees. “Business schools are massively more innovative [than law schools] because no one has to go to business school,” Benjamin Barton, associate professor of law at the University of Tennessee, once pointed out. “They're more interested in showing that they're giving you something of value. … At a business school, corporate executives pay $10,000 a week to talk to a professor. Law firm leaders would never go to a law school for advice."

Those are my three law school myths overdue for demolition. What are yours?

When I talk with people in the legal marketplace about alternative fee arrangements, I often hear two common objections. Interestingly, one is raised by lawyers and the other by clients. 

Lawyers say they don’t want to offer fixed fees because they figure that the client, having bought what is essentially an unlimited amount of legal services, will then deluge the lawyer with phone calls, emails, and tasks of varying complexity, burying the lawyer in work for which he or she will never be compensated. Clients, on the other hand, say they don’t want to accept fixed fees because they figure that the lawyer, always having his or her own financial interests uppermost in mind, would only offer an AFA if it was guaranteed to produce more revenue than the billable-hour model would have generated; if the lawyer wants it, it must be bad for the client.

Basically, this means many lawyers and clients believe that, given the opportunity, the other side will exploit any given pricing system to its own advantage. We should take a moment to reflect on how sad that is, and how dangerous.

The trust deficit between lawyers and clients has been growing for many years and is now as wide as I’ve ever seen it. And the chasm has deepened at the worst possible time for lawyers, just as clients are learning about new providers and new delivery methods for legal services. Not only are lawyers no longer the only game in town, we’re also at risk of losing our default position as the primary go-to manager of legal solutions. Competition has finally arrived and it has found us generally unprepared to defend our territory, largely because we’ve let our relationships with our clients languish and fall into disrepair.

Lawyers will lose the battle for lead position within clients’ portfolio of legal providers if we cannot restore the sense of trust with our clients. Clients say they want their lawyers to provide excellent service, at competitive and predictable prices, in a timely and professional manner, and all of this is true. But what clients most want from their lawyers, what they’re really purchasing, is peace of mind. When a client buys a legal product or service, he or she is buying reliability, security and assurance — in a word, trustworthiness. And you can’t sell trustworthiness unless you yourself are trusted.

Where do we start the monumental work of restoring a precious resource that has taken decades to wear away? I might suggest we begin by reframing our attitude towards the people who hire us.

I’ve heard it said, more frequently than usual recently, that people in my line of work (consulting) should serve either law firms or law departments, but not both. The reasoning is that any advice that serves the interest of corporate clients will by definition operate to the detriment of law firms: if you save GCs money, that’s less money to go into partners’ pockets. I have both practical and philosophical issues with this line of thinking. 

My practical objection is that the lawyer-client relationship demonstrably need not be a zero-sum game: both sides can benefit from a better approach. Jeff Carr, the forward-thinking GC of FMC Technologies, uses an incentivized pricing system by which he pays law firms a bonus for succeeding but extracts a penalty for failing to meet expectations. He reports that the average payout is something like 106% of the originally agreed fee — the law firm consistently comes out ahead. Yet Jeff is happy, because he’s able to guarantee a price range for his budget and he knows he got the firm’s best and most motivated work. There are other examples out there of firms on fixed-fee retainers that charge less and less every year yet turn more and more profit every year, thanks to better workflow efficiencies.

But the philosophical objection is even stronger: your client is not your enemy. Law firms that stand in adversarial relationships with their clients not only misconceive the fiduciary nature of that relationship, but they’re also asking for trouble in a market like this one. Yes, there will always be a degree of tension around negotiations for price in any exchange between buyers and sellers, even in the friendliest relationships. But when those negotiations are carried out in good faith, with the recognition that both sides can legitimately seek to maximize their own value within the context of a long-term, mutually beneficial relationship, those tensions are kept in check and are quickly forgotten afterwards.

If your practice needs a new year’s resolution of any kind, make it this: resolve to restore trust to, and increase trust in, your relationships with clients. With a solid foundation of trust, everything becomes easier; without it, everything becomes harder. And you simply will not be able to compete in this new marketplace without it.

“When it comes to customer service,” James Surowiecki noted in an insightful New Yorker column last month, “it seems people are unhappy no matter what side of the counter they’re on.” Surowiecki’s article describes how the only ones more miserable than those who provide front-line customer service these days are those who receive it: neither the buyer nor the seller values or enjoys the post-transaction relationship. 

The reason is pretty simple: during the recession (and, Surowiecki points out, even more so during the boom that preceded it), companies slashed customer service because it was little more than a cost center — and customers, always demanding the lowest price, acquiesced. The result is that the purchasers of a product or service now dread the prospect of trying to get information or assistance from the seller’s underpaid, undertrained, outsourced and unmotivated “service” representatives. Ultimately, we consumers have only ourselves to blame: save now, pay later.

Ask most law firms about their “customer service” policies and you’ll get a blank stare. Change the phrase to “client service” and you’ll hear about how valuable clients are and the lengths the firms go to solve clients’ problems and satisfy their needs; but ask firms to outline specific steps they take to ensure their clients are happy with the service they receive, and you might hear about “surveys” and “calls from relationship partners” and other one-off measures. I’ve yet to come across a law firm that could produce a client satisfaction strategy and the tactics employed to implement it.

There are several reasons for this. One is that many clients are one-offs — most people don’t need to immigrate twice or get multiple divorces — so the lawyer has little motivation to encourage repeat business. Another is that unlike in retail or other business environments, most customer service in the law takes place during the transaction, not afterwards. Related to that is a third reason: lawyers, to speak very generally, are more interested in the problem than in the person or organization that provides it, and they focus their energies on attacking and solving the problem, not attending to the emotional state (usually unhappy) of the client. And a fourth is the monopolistic nature of our marketplace: customers seeking a law firm that does things differently, or a non-lawyer solution altogether, traditionally have been unable to pursue those options — veterans of using the telecommunications or airline sectors can relate.

But maybe the biggest reason why “client service” is an empty slogan or an afterthought for most law firms is the same reason Surowiecki identifies as the root cause of poor client service in the larger business world: 

The real problem may be that companies have a roving eye: they’re always more interested in the customers they don’t have. So they pour money into sales and marketing to lure new customers while giving their existing ones short shrift, in an effort to minimize costs and maximize revenue. The consultant Lior Arussy calls this the “efficient relationship paradox”: it’s only once you’ve actually become a customer that companies put efficiency ahead of attention, with the result that a company’s current customers are often the ones who experience its worst service. 

Perhaps the advice most often given to, and neglected by, lawyers is that it’s statistically far easier to get new business from an existing client than a new one. Yet the money and effort firms devote to satisfying clients during the transaction and improving that relationship afterwards is a tiny fraction of the thousands or millions they pour into marketing and advertising. We’re more interested in the clients we don’t have than in the clients we do, and our near-complete neglect of client service in any real and effective sense demonstrates that.

How could firms make “client service” real? Secure online access to a “Client Status” website, updated daily with the latest developments on a file, would be a good start. But great client service, beyond empowering a client to access information at her convenience, requires proactive effort and actual sacrifice by the lawyer. Here are four quick possibilities:

• Make monthly or weekly calls to the client (at no charge) during the transaction to discuss the file, answer questions, and above all, just listen to the client express her worries and hopes. The single biggest difference-maker and differentiator lawyers can adopt is to learn to listen actively, quietly and attentively. Very few of us possess or polish this skill.

• For valued clients, install a 24/7 “hot line” (phone or email) at which a responsible and competent firm professional can be reached for and will respond to urgent issues — the law firm equivalent of “roadside assistance.” After-hours inquiries could be fielded by part-time lawyers or those employed with an offshore legal services provider affiliated with the firm.

• Create a referral incentive program: a client who refers another client to you receives an automatic 15% discount the next time he uses your service (which also encourages repeat business). Better yet, award the 15% discount to the referred client — studies have demonstrated this is a more effective referral system for some people, especially women.

• As my Edge colleague Ed Wesemann recommends in an upcoming article in the Edge International Review, turn the traditional lawyer pricing paradigm upside-down: give your biggest and most valued clients your best rates, and give new clients your standard, non-discounted ones, not the other way around — which, amazingly, is how many firms automatically proceed.

Customer service likely will continue to worsen as the economy struggles and costs continue to be cut in so-called “non-essential” areas. As a result, a law firm that genuinely prioritizes client service — commits the resources, builds a strategy, implements tactics, monitors progress and sets goals to be met — will stand out so far above the crowd, in the legal marketplace and elsewhere, as to be considered an astonishing anomaly. Too simple? There’s no such thing.

How much should you charge for your work? That’s a tough call for any lawyer to make, which is one of the reasons many of us default to a billable-hour system that we know doesn’t really reflect value delivered. So here’s one way to solve that problem: let your client decide how much to pay you.

In case you think that’s ten kinds of crazy, you should know that that’s exactly what UK firm CMS Cameron McKenna is doing. The 300-lawyer firm is making this and similar suggestions the centerpiece of a new marketing campaign that highlights its alternative fee arrangements (AFAs). The firm’s AFA brochure, reproduced by my Edge colleague Gerry Riskin at his blog, is titled: “The future of fees: your road map to value.” It’s a masterpiece of marketing, because it converts the ethereal notion of alternative pricing into innovative, even radical, real-world examples. Here are a few:

• To an oil major, we offered to match our fee proposal to the oil price, with a cap and collar to limit risk for both parties and to weight our fees to our client’s success.
• To a potential consumer products occupier, we offered a fixed fee proposal based on rent saved in relation to the successful exercise of tenants’ rights to determine leases of properties.
• Offsetting our fees through a “services in kind” model with a leading IT provider, i.e., using a barter model.
• To a major power client, we have offered a one-stop offering for a year for a “no questions asked” fixed price, demonstrating our appetite for sharing risk with clients.
• With an experienced purchaser of legal services, we were able to agree to a “pay us what you think the work was worth” structure.

Out of all these examples, I think my favourite is the proposal to match an energy company’s legal fees to the price of oil. It’s great for three reasons: (1) it shows the firm’s willingness to take on risk on a critical subject like fees, (2) it demonstrates that the firm knows and cares about the industry realities that affect the client’s fortunes, and (3) it’s easy and entertaining to explain to the CEO or board of directors. The fees tied to rental savings in the second example is another good illustration.

But the offer that has generated the most headlines and buzz is to let the client pay what the client thinks is fair. It’s not really novel: several years ago, Summit Law Group in Seattle introduced a value adjustment line at the bottom of each bill, inviting clients to subtract from (or add to) the submitted amount based on their satisfaction with the service. Valorem Law in Chicago has taken the same approach; the offer to subtract has hardly ever been taken up by either firm’s clients. What it’s really about is giving clients the power to have the final word on the price of services.

As you might expect, however, the media and industry commentary to the “pay what you want” option has dripped with sarcasm. One comment on the online article:

“I am the CEO of a large Fortune company contemplating a hostile takeover of a major Chinese rival. Our combined market cap is around USD80bn. Can you handle the M&A work, plus any associated merger filings and regulatory issues? I'll give you a fiver and a bag of revels.

(Actually, that’s pretty good.) There’s a general sense out there that a firm that makes an offer like this must be mad, desperate, or both.

I think that’s the wrong conclusion to draw. Notice that the offer qualifies the type of client to which it was made: “an experienced purchaser of legal services.” That’s code for a large corporate or institutional client with which the firm has had previous dealings, perhaps extensive. In real terms, what that translates into is: you’re a client whom we trust. We trust that you’re not going to pay us ten cents on the dollar. We trust that you won’t betray the trust we’re bestowing on you with this offer. That’s a powerful and positive message Camerons is sending to the marketplace.

The standard lawyer reaction, to mock ideas like this, reveals how difficult we find it to accept the place of trust in the lawyer-client relationship. Many of us are afraid of professional trust, and some of us, sadly, don’t even understand what it is. But as I and many wiser minds have said time and again, trust is at the core of any successful client interaction. Law firms whose clients trust them find everything easier, from delivering work to pricing services to collecting bills. Firms that have failed, or haven’t tried, to earn clients’ trust, find everything much more difficult and struggle to understand why.

Camerons’ AFA brochure is really an announcement: “We are ready to develop professional relationships with good clients based on mutual trust.” If you don’t think that’s music to clients’ ears, you haven’t been listening closely to clients lately. Expect to see more of these types of offers down the road — but don’t expect any of them to succeed unless the groundwork of trust has already been laid.

I read the quote more than a month ago and I still can’t quite get it out of my head. It appeared in a brief item by Julius Melnitzer at the Legal Post blog, and I’ll take the liberty of reproducing it in full here (emphasis, as they say, added):

Pfizer, whose general counsel has created the Pfizer Legal Alliance to manage its external counsel relationships, has brought the concept to Canada, and is seeking bids from Canadian firms. The pharmaceutical giant has limited its US representation to 19 firms, which may indicate that it is looking for only a handful in Canada.

Information obtained by FP Legal Post indicates that firms have been surprised by the extent to which Pfizer is focusing on the ACC's Value Challenge criteria. "They didn't ask a single question about our legal expertise or the quality of the legal advice," says one source whose firm recently pitched Pfizer. "A lot of lawyers here in Canada have been pooh-poohing the ACC Value Challenge as a passing fad, but they're taking it a lot more seriously now."

A little background: the Pfizer Legal Alliance is a radical approach to outside legal spend by the pharmaceutical giant’s law department. Nineteen law firms throughout the US have been selected to join the Alliance, under which each handles legal work from Pfizer for one annual flat fee that covers everything — from telephone calls to major litigation. At the end of the year, each firm’s performance is reviewed, and the result can be a bonus — or elimination from the alliance. 

The ACC Value Challenge is a project by the Association of Corporate Counsel to better align the interests of outside counsel with their in-house clients and to better define and deliver value to those clients. The ACC has identified six “value criteria” for corporate counsel to use when assessing law firms: understanding of client objectives, legal expertise, efficiency and process management, responsiveness and communication, ability to budget and predict costs, and execution. 

Now, back to that quote. I’ve been tempted to contact Julius to ask about the tone of voice in which the lawyer delivered it. Bafflement? Possibly a little scandalized? Or maybe just kind of stunned. Surely the client wants to know how smart we are, how accomplished our lawyers, how excellent our credentials. But no, apparently, they just have a series of questions about how well we can understand the client’s business, predict prices, achieve results and communicate to the client’s satisfaction.

With apologies for the generalization, I have to say I’ve been struck by how little urgency is apparent among Canadian law firms these days, compared to our American and British counterparts. I strongly suspect that our good fortune in avoiding the full brunt of the financial crisis and the Great Recession has left our legal sector a little complacent about the scope and depth of the challenges facing lawyers over the next decade. Many Canadian firms still seem to believe that the recent pressures on the legal profession are shallow, recession-driven and temporary, and that everything will be back to normal soon enough. It bodes poorly for the ability of this country’s legal profession to weather the storms ahead if we won’t even acknowledge that the sky is clouding over and that umbrellas would be a good idea.

Here’s a quick illustration of the difference across borders. One of the panels at last year’s CBA Law Firm Leadership Conference dealt with alternative fee structures, and the question was put to the panelists: if a client came to you today asking for a fixed-fee arrangement, how would you respond? A Canadian managing partner basically replied, “Well, if the partnership committee approved it, and it made financial sense for us, and if we could accurately predict the cost of the various elements of the case, etc. … then yes, we’d consider that.” The same question was put to a senior partner from a US firm. His answer: “Yes.” He went on: “We’d figure out later the details of how to make it work. But if the client wants it, the answer is yes.” You couldn’t ask for a better example of the difference between a lawyer-oriented firm and a client-oriented firm, between a culture that thinks lawyers still call the shots and a culture that understands there’s a new game in town.

Pfizer’s initial foray into Canada, searching for law firms that get it, ought to make clear to lawyers here that it’s time to stop hitting the snooze button. Change is here and it’s real, and law firms that continue to conduct business as usual are taking a great risk. Clients, it can’t be said often enough, aren’t impressed by firms’ pedigrees or the qualification of their lawyers or what schools they attended: clients know or assume that all lawyers are at least competent and probably excellent at their jobs and are otherwise pretty much indistinguishable. What they’re seeking are ways to choose among firms, and the criteria they’re using are those that contribute directly to client value.

If you still believe, as a Canadian lawyer, that your “legal expertise” or “the quality of your legal advice” is the difference-maker for your clients, please understand that this is what clients care about today:

Results: deliver what the client needs — no more, no less — on time, on budget, in ways that enhance client value. 

Price: ideally fixed, certainly predictable, in no way variable according to how many hours you worked — and oh yes, discounted.

Alignment: know the client’s objectives and adopt efficient systems and processes to help achieve those objectives.

Assurance: never make the client regret, in front of bosses or shareholders, that he or she relied on you.

We have no cause, as Canadians, to be sanguine about the future. Our governments are heavily indebted, our housing market is still frothy, and our health-care system has outgrown our present willingness to pay for it. The hammer has yet to really fall here, and when it does, we’re going to experience what lawyers elsewhere have already gone through. We’ve been given a reprieve of several months, maybe a couple of years, but that’s all. 

Make the most of this opportunity to prepare for a far more demanding client marketplace. I can guarantee that Pfizer will not be the last client to leave lawyers baffled, scandalized or stunned by its demands.

The InnovAction Awards, which have been given to small firms, global giants and non-firm entities in five countries on four continents, can cover everything from legal service delivery to legal marketing, from technological systems to client communication, and from law firm management to access to justice. The criteria are simple:

1. Absence of precedent (The innovation must have never been done, or done quite this way, before)
2. Evidence of action (An innovative idea was transformed into action, and not merely reflective of best intentions.)
3. Effectiveness of innovation (There is some measurable outcome that indicates the innovation is accomplishing what it was intended to do.)
4. Recent implementation (Action must have taken place within no more than three years prior to this entry)

Last year, the College instituted an Honourable Mention category for innovations that, while they might not be completely original, were executed or delivered in a unique way or to an unprecedented degree. So even if your innovation wasn't the very first to appear, the way in which you did it might very well meet the Honourable Mention criteria.

The entry fee for each submitted innovation is $US325; send in your entry before the early-bird deadline of May 3, 2010, and that fee falls to US$250. Complete details of the Awards, including the entry form, FAQs, the benefits of winning and a list of past winners, is available at the InnovAction home page.

Please don't hesitate to email me if you have any questions. This is my third year serving as Chair of these Awards, and I can tell you that the variety and creativity of submissions never ceases to amaze year to year. If your firm or organization has done something original and innovative that made things better for your firm, your clients, your community or the legal marketplace, you deserve to be recognized for it — and we want to hear about it!

I have to admit, when I started a recent series of trips to make presentations in the U.S. and Canada, I'd been questioning whether my recent assessments of and predictions for the legal profession had maybe become too radical. Having now returned from speaking with and listening to some of the sharpest and most engaged minds in the business, I'm coming to think I haven't been radical enough.

Certainly, there was encouraging news. Delivering serious and perhaps discomfiting messages to state bar leaders in Chicago and law society executives in Toronto, I was heartened by the openness to these ideas and the readiness to address our current challenges that our profession's leaders displayed. Some lawyers and some firms might be ignoring what's happening in this marketplace, but in no way is that universal, and I think it bodes very well that the people in charge of many of our legal institutions are facing these challenges head-on. Listening to the managing partners of some of the world's largest law firms at a Georgetown Law symposium in Washington, D.C., it was also refreshing to hear at least some of them acknowledge that the old model is passing away and the adaptation to a new model will be difficult but necessary. Certainly, everyone else in the room, which included almost every thought leader who wasn't otherwise engaged at the ABA TECHSHOW, was fully cognizant of what we're facing (and two new surveys confirm it).

For all that, though, I came away from these experiences more convinced than before that major, rewrite-the-rules change is imminent in this marketplace, and that some current institutions simply won't survive in recognizable form. You should read the media accounts of the Georgetown Law Firm Evolution event, from observers like Aric Press, Rachel Zahorsky, Ron Friedmann, Greg Bufithis , and various Twitter correspondents (as well as a response from Robert Sawhney), to get a sense of the scope of change that was discussed.

But for me, the penny dropped during the dinnertime address by Richard Susskind, whose remarks included a heartfelt plea for conference delegates to lead a change for the better that the profession and justice system desperately need. One of Richard's topics was the Legal Services Act in England & Wales, and its soon-to-be-active provisions allowing alternative business structures (ABSs), including non-lawyer equity investment in law firms and legal enterprises (here's a sampling of articles, from last September to last week, describing scenarios under which law firms might invite such investment).

Richard, however, has been speaking with investors who are actively engaged in preparing entry to this marketplace, and he reported that law firms are not their primary target; in fact, their interest is coalescing around legal service providers that we now consider to be on the fringes of the profession, like legal processing outsourcing companies. These are the providers that outside investors think are much likelier than law firms to emerge successful from the ABS upheaval, and it's where most of the new capital is going to go.

Match that up against what the private equity people have been saying on the subject. Jeremy Hand of Lyceum Capital is quoted in two of the previously linked articles as saying his company has a "focus on new business delivery models, not traditional law firms," and is looking to work with firms with “a modern, streamlined, low-cost delivery model — quite different from that of the traditional partnership." Tony Williams of Jomati Consulting, who advises Lyceum, added that the new private-equity model emphasizes equity over debt, and equity-driven investors require high rates of return: "So firms need to have a very clear understanding about what they can do with that money that gives a higher rate of return to them and to the private equity people.” None of these remarks resonate with how the vast majority of law firms go about their business — but they do sound a lot like how non-lawyer providers conduct themselves and view the marketplace.

Put all that together, and this scenario emerges: private equity enters the legal marketplace in England & Wales, but it pays just glancing attention to traditional law firms, deciding that it doesn't need the headaches that come with trying to manage lawyers and reinvent law firms built around the billable hour. Instead, most of the money heads for efficient, accessible, predictable, process-driven operations that are aligned more closely with how modern businesses operate, including LPOs, online and virtual service providers, and streamlined, fixed-fee lawyer boutiques. Already, Intermediate Capital Group has made a £440 million investment in CPA Global, the LPO firm that famously took a huge chunk of legal work from Rio Tinto last year. That purchase effectively placed a marketplace value on CPA Global approaching $1.4 billion. How many law firms, if they were to go public today, could aspire to a $1.4 billion market cap? 

LPOs, it has to be emphasized, are not just doing first-year associates' grunt work, not anymore. They are moving up the value chain steadily and with surprising speed, taking on the work of second-, third- and fourth-year lawyers — not just by using lower-cost labour, but by doing the work more systematically and efficiently. As I said a while back, these companies will not be content with basic work forever; they see no reason why they can't eventually do the toughest legal jobs. Billion-dollar legal services providers, unfettered by traditional lawyer restrictions, can go global instantly and almost effortlessly. They’ll have more than enough money to acquire the top talent from the best firms worldwide, to invest in new systems and innovations that will reduce costs even more, and most importantly, to change clients’ expectations about what a law firm can deliver. They will be law firms, in effect, and even if lawyers in a given jurisdiction somehow succeed in keeping them out, the landscape will have changed: clients will demand their lawyers compete on the same playing field.

Some firms, especially in the UK, seem to sense this already, and they're taking outsourcing seriously (though perhaps none as seriously as Eversheds, which has gone into the LPO business itself, albeit with risks). More interesting are attempts by some firms and clients to rethink workflow, such as the move by Royal Bank of Scotland towards a "Mexican Wave" system (pioneered by Lovells) that you'll be hearing much more about in the months to come (a City firm does the "higher-end" client work while sending more routine work to lower-cost firms in smaller centers). Also intriguing are joint lawyer-client ventures in the UK (such as those by Geldards and Kent County Council and by Berwin Leighton Paisner and Thames Water) whereby in-house and outside counsel are integrated to an unprecedented degree. I'm pleasantly surprised by the innovative approach these firms are taking, and I hope it'll be enough to secure their positions when the floodwaters really start pouring into this marketplace.

For many other firms, though, the challenges are extremely serious. The prospect that emerges from all this is a legal services marketplace in which many law firms are simply irrelevant — they're not structured in ways that deliver maximum value to clients and they can't compete with rivals that are. There was a lot of talk at the Georgetown event about whether "BigLaw is dead," and I have to agree with those managing partners who dismissed the notion: these firms are obviously up and about and making a great deal of money, and it's absurd to pretend they're dead men walking.

The worry, for me, is that many firms, of all sizes, aren't ready for the radical ways in which the playing field is about to change. Their focus is either straight ahead, on their clients, or internal, on their own condition and competitiveness. They're like a quarterback whose gaze is either locked downfield on his receivers or focused dead ahead on the defenders in his path. As a result, he never sees the hit coming, from his blind side, that flattens him and turns the ball over to the other team. It's not just lawyers and clients who matter anymore. New players, with an unprecedented combination of size and speed, are charging onto the playing field like a storm and rewriting the rules of the game as they come.

For the record, I don't intend to buy one. At least, not for a few more years and not until the inevitable upgrades, improvements, fixes, and content distribution changes have run their course. But well before the iPad 3.o arrives, the original version will have had a serious impact on the computer industry, on the production and distribution of content, and yes, on the legal profession.

I won't recap everything that's been said about the iPad in the mainstream and legal communities — Reid Trautz and The Wired GC have two solid takes — but it's worth noting that the reaction has been mixed (and not just to the name, which I think will fade to non-issue status in relatively short order). The iPad has been criticized for its failure to shift paradigms, to be the next big thing that the iPhone was. It's just a small Netbook, or a big iPod Touch, say the critics: not a game-changer, not everything it could have been. So let's start with a quick word about what the iPad does appear to be.

The iPad is a mobile content consumption device. It isn't optimized to play music, record videos, create documents, take photos, make phone calls, or do any of the other functions whose absence has been criticized. I suspect that's for two reasons. One, Apple already has a fleet of devices that do these things very well and has no interest in rendering them redundant or obsolete. And two, the convenient consumption of content is actually an extraordinarily deep and rich field that no one has, up until now, really set out to harvest. The iPad is optimized to allow its owner to access as much content as possible as easily as possible: it's light enough to carry around with ease, equipped with a screen big enough to read with ease, and set up to access the internet with ease. That's an immensely powerful functionality, because when people are able to get whatever they want easily and conveniently, it changes all their expectations and creates completely new standards of service and satisfaction.

That's all well and good, you say. But does the arrival of the iPad mean anything for the legal services marketplace? I think that in three different ways, the answer to that question is yes.

1. Mobility. In the beginning, there was the briefcase. If a lawyer had to venture outside the cozy confines of his law office, he stuffed the relevant papers and books into a briefcase and set off (if he was heading to a trial or discovery, a junior would trundle after him pushing a mini-trolley stacked with boxes). Then came the laptop, which allowed the lawyer to carry not just the relevant files for his case, but also all the files in his office. And now has come the iPad, which will allow the lawyer to access everything he has ever produced in any location (through MobileMe or DropBox) and on the entire internet. Through each evolutionary stage, the lawyer can transport more and more information on ever-smaller and lighter items, until he gets to the point where he is essentially a walking law firm.

So I think the one trend that the iPad will really accelerate is the movement away from the physical plant of a law firm. Manufacturing still requires workers to come together in a centralized factory, but the same can't be said of knowledge industries like law. There are fewer and fewer reasons for lawyers to come to work every day in the same facility — physical law libraries are dwindling, files and documents reside on servers or in clouds, and smartphones have untethered lawyers from offices and landlines. As hourly measures of productivity begin their long decline, "face time" at the firm will become less important. Collaboration, the benefit most often touted for lawyers' proximity to each other and the key to future legal services, is and will be possible through multiple means, most of which involve distance. The iPad, along with its coming competitors and future iterations, has a good chance of being the watershed technological development that finally does away with "four walls and a door" as the default definition of a law office.

2. Publishing. As noted above, the iPad is designed for the consumption of content, not the creation of it. Lawyers create more content than the average professional and tend to consume somewhat less, but what they do consume is largely the work product of legal publishers: case law reports, legislative updates, legal research databases, leading texts, legal periodicals, and so forth, all constitute the heart and soul of legal publishing houses. The iPad is a mobile reader with internet access, and the obvious way in which lawyers will use this device is for these sorts of materials. This will fundamentally change the way in which legal publishers go about distributing their content, just as the iPad will change (and is already considered the only viable option to stop the collapse of) consumer newspapers and magazines.

The thing about legal information is that you need it when you need it, not when you can get back to the office or find a wi-fi spot for your laptop. Hence the appeal of legal research tools for mobile devices: just before the iPad premiered, FastCase generated a lot of buzz in the blawgosphere by announcing a free legal research app for the iPhone. But the iPhone, as even its adherents will admit, is too small to be used for extensive text review (and the BlackBerry even more so). The iPad promises to make legal information instantly accessible and convenient to read (there are those words again), and it won't be long before lawyers start viewing mobile electronic access as the default format for legal information and reject printed materials that will seem bulky and cumbersome. How soon will this happen? If nothing else, give it three years for the current crop of law students, who will be among the profession's earliest iPad adopters, to make their way into practice, then see what happens. That's three years in which legal publishers need to shift their internal processes to accommodate new delivery, pricing and updating mechanisms for their content.

3. Design: Last fall, The Economist ran an article (subscription required) about the coming battle among Microsoft, Google and Apple for supremacy in cloud computing. Each of the contenders has an advantage: for Microsoft, it's money (although neither Google nor Apple are exactly cash-poor), and for Google, it's technology (although again, smart people abound in all three companies, as well as in dark-horse contenders like Amazon and Facebook). But if I had to bet on a winner — if not in the cloud, then in the industry generally — I'd say it's Apple, for only one reason: design. Apple beats Microsoft, Google and every other competitor when it comes to the user interface — or, more colloquially, the customer experience. People enjoy using Apple products, and "enjoy" isn't a word you normally associate with technology. At the end of the day, money, brains, functionality and so forth become ubiquitous and undifferentiated, such that your killer app can be topped almost before your new product is on the shelves. But a great user experience is a game-changer: not only is it hard to replicate, it almost inevitably leads competitors to imitate rather than fight.

You can probably see the application to law firms. With few exceptions, lawyers are very smart and law firms are very good at delivering legal services. "Excellence" isn't a competitive advantage in the law and hasn't been for decades. So firms look for other ways to stand out from the crowd. Unfortunately, extremely few succeed. Law firms almost all go about their work exactly the same way: they pitch clients the same way, go about their tasks the same way, bill their work the same way, treat their clients the same way. Any client who has had the opportunity to sample the offerings of multiple law firms can attest that, for all practical purposes, they really are all the same. No wonder clients, especially these days, are so focused on price and especially on predictable fees: they're hunting for something, anything they can use to justify choosing one law firm over another.

There's only one silver bullet here — only one thing that a firm can do that its rivals can't match and its clients will love: the customer experience. From marketing to client intake to processes to results to invoices to follow-up, how a firm relates to its clients throughout the life of a retainer is the most important element of all. The design of your firm — the experience your clients have before, during and after retaining your services — is critically important, because it's unique to your firm, it's 100% focused on the customer, and it can't be copied or imitated. My Edge International colleague Gerry Riskin wrote about this more than three years ago in an article called "Intelligent Design for Law Fims":

You’ve heard of practice management — but do we discuss “Practice Design”? Not yet. If law firms truly want to capture the attention of the marketplace, to stand out for all the right reasons, they need to start thinking more about how they present themselves to the market and how they deliver their services. By committing time and resources to law practice design, innovative firms would open up whole new frontiers of competitive advantage over their rivals.

Apple doesn't get everything right, but it does make sure that everything it makes and everything it does puts the customer experience front and center. How many law firms can honestly say that? How many lawyers can say, and back it up with evidence, that the ways in which they work, communicate and bill their services are designed and delivered with the client's complete personal satisfaction in mind? If your firm wants to have a fighting chance at making it through this coming decade in one piece, then it needs to take a lesson from Apple: design matters. If the customer is delighted, you win.

The iPad doesn't do everything, but it doesn't need to. It does what it does really well, and it makes its customer feel good doing it. There are a lot worse mottos your law firm could adopt.

Just 20 short years ago, if you wanted to buy a book, you had to go to a bookstore. If you wanted music, you had to visit a record store, and if you wanted to read the news, you had to buy a newspaper. Then Amazon.com debuted in 1994, Google was incorporated in 1998 and Napster emerged in 1999. Soon enough, people stopped buying newspapers because news articles were accessible online at no charge, stopped buying records because they could get music from each other freely, and stopped walking into bookstores because they could buy books with one mouse click online. These three companies helped deliver body blows to three massive industries by exposing and eliminating the key to these industries' success: control over distribution. Far more than what's happened to banks and auto manufacturers, it's the most important business event of our time.

Lawyers don't sell books, articles or music tracks to our clients. But we've long benefited from a similar type of control over the distribution of legal services, rooted in two barriers: the inability of competitors outside the legal profession to replicate our offerings, and legislative restrictions against such competitors operating without our authorization. The first and more formidable of these barriers is falling as we speak: client-directed assembly of legal documents, legal professionals operating in low-cost jurisdictions, online dispute resolution systems that render litigation superfluous, free searchable legal knowledge databases: all these and more innovations exist today and will rapidly multiply. The second barrier is weaker than it appears, vulnerable to the stroke of a legislative pen like the one already wielded in England and Wales.

News, music and bookstore executives who could somehow time-travel from 1989 to 2009 would be struck by how ill-prepared their companies were for fundamental change to their marketplaces. It's not that demand for their products has gone away — it may even have grown — but business models founded on control of narrow distribution channels were overwhelmed when control failed and access exploded. Many law firms are in an uncomfortably similar position — too much of what they offer is within striking distance of increasingly accomplished competitors from outside the legal profession.

But lawyers don't need to repeat the mistakes of these other industries. We can prepare better, both because we have a clearer picture of how our own marketplace will change and because we have the incentive of seeing what happens to companies that don't prepare well. We can take a close look today at what we sell and at the market in which we sell it, and figure out which of our offerings will survive a new landscape in which there are many more competitors playing by a different set of rules. We can conduct what I think of as an obsolescence audit — identifying those aspects of our business model that won't survive the next ten years and taking steps now to address them. Here's a short checklist to get us started: look within your firm for…

1. Any offering that's the same no matter who buys it. This includes news and analysis of legislative and case law developments, documents like simple contracts and wills, tips to adopt and traps to avoid in various areas of law — universally applicable legal products, basically. If what you sell differs hardly or not at all depending on your buyer's circumstances or preferences, then you're squarely in territory now occupied by service providers outside the legal profession. They don't need to tailor their services to clients because they don't have clients — they're using these products to make money through advertising or other means. Non-tailored services in the legal sector have a stand-alone value approaching zero; if they constitute a part of your business, drop them now.

2. Any offering essentially the same as your competitors'. This, as you might imagine, covers an enormous amount of what law firms now do. The hard truth is that a lot of legal work doesn't really vary that much from firm to firm, in terms of function and quality; there are very few legal tasks that only one firm can offer to an acceptable degree of competence, let alone excellence. So you can either come up with an offering that can't be duplicated by any competitor, law firm or otherwise (unlikely), or you can distinguish your offering by redesigning the way in which you deliver your services — re-engineering the client experience by way of cost, design, ease of access, integration, and so forth. If an offering really isn't susceptible to a value-added redesign, be prepared to drop it, no matter how lucrative it might now be.

3. Any offering not optimally designed for client value. Think carefully about this one. It's not just the easy candidates like the billable hour, in which every new case development simultaneously increases risk to the client and reward to the lawyer. It's things like your entire litigation practice. Litigators are especially fallible to the Black & Decker error that Richard Susskind cites, failing to see that the customer wants not a drill, but a hole in the board, in the easiest, cheapest way possible. Litigation is neither easy nor cheap; online dispute resolution is both, and it's poised to eviscerate litigation over the next decade. Look at what you do in your firm (and how you do it) and ask yourself: if I were the client, would I want it done this way? If the answer is no, change it.

4. Any offering that really, truly doesn't require a lawyer. This one is far too important to be answered by lawyers. Instead, look at what your clients are doing themselves, or look at your flourishing competitors outside the profession. The question to ask isn't: is a lawyer the most accomplished possible resource for this matter? The question is: is a lawyer absolutely necessary, in terms of expertise, judgment and cost, for this matter? You may be correct that the quality of these alternatives doesn't measure up to what lawyers do — but rest assured, that quality will improve over time, and quickly. If the main reason your lawyers keep receiving particular kinds of work is because only lawyers are allowed to do it, or because clients use you for these tasks out of habit, alarms should be going off. In the near future, things that don't require a lawyer, won't.

Applying these four principles, and others that you'll come up with for your own circumstances, will result in a stripped-down law firm, maybe severely so. That's a daunting prospect. But do you suppose publishers and record companies now wish they'd been stripped down and focused when the web-generated wave of change struck them? Do you think they regret investments in and acquisitions of more-of-the-same year after year, time and money they could have spent retooling for a completely different competitive landscape? The reality on the ground for these industries today, when viewed from their catbird seats a decade or two ago, is unimaginable. The legal services marketplace is different, but it's not nearly different enough — and the change is far more foreseeable.

No one really knows what law firms will look like in the future, but I can guarantee what they won't look like: the past. Entering the 2010s with a law firm model essentially unchanged from the one that entered the 2000s is asking for serious trouble. Start changing that now.

If you happen to subscribe to my Twitter feed, you'll notice that I regularly post links to stories of interest in the legal press. If you look closely, you'll notice that a great many of those stories pertain to developments in very large law firms. That's not because I'm fascinated by BigLaw or because I think my subscriber base is either. It's because that's what gets published. The legal press pays a disproportionate amount of attention to large law firms — as do we all.

The best-known legal periodical, The American Lawyer, is so tightly intertwined with large firms that the 100 biggest are referred to as the AmLaw 100. ALM's web-based publication, law.com, is heavy with large-firm content (though in fairness, it does have a Small Business page too). The UK has two periodicals that closely follow BigLaw, LegalWeek and The Lawyer. In Canada, it's Lexpert. In Australia, it's ALB Legal News, and so forth. But even purportedly general-interest legal periodicals also devote a substantial amount of space talking to and about lawyers in large operations. I've spent the last ten years editing a bar association magazine whose readers are mostly in firms of ten lawyers or fewer — but a look back over those issues would probably reveal a lot of coverage given to big firms.

If a periodical intentionally focuses on BigLaw, generally it's because large-firm lawyers traditionally make a lot of money, so they're attractive both as subscribers and as advertising targets. But why do many other legal publications over-emphasize big firms, relatively speaking? Mostly, it's because those firms have both the motivation and the resources to engage with the media.

Large firms have marketing directors, PR experts, website personnel, even a growing number of social media mavens, all paid to raise the profile of the firm and its lawyers. So when your average overworked legal journalist goes out to search for story ideas and contacts, he or she finds the big firms all over the place — they've established a powerful presence on the landscape. Not only that, but their PR professionals handle all the work of media relations, leaving their lawyers free to focus on client work. Small-firm lawyers and solos, by contrast, generally leave a much smaller footprint in the places where journalists search for ideas and leads, and few can afford to devote otherwise billable time to engaging even the mainstream media, let alone the legal press. The end result is that the rich, so to speak, get richer.

But I think there's more to it even than that. If our professional media outlets spend an unusual amount of time mooning over big-firm lawyers, it's because the profession does too. The prevailing culture of the bar, for many years, has been to attach an unusual amount of prestige to big law firms and the lawyers who practise there.

Whether we like to admit it or not, we often tend to think that a lawyer in a large firm with a well-known brand and spacious offices in a big building downtown is somehow a superior product. Even small-firm or boutique lawyers, who may feel a certain degree of animus towards their big-firm rivals, take an outsized degree of pride from defeating one of them. There's no rational basis for thinking that the size of a law firm has any bearing on the quality of the lawyers within it — yet that belief has infiltrated the way many lawyers think and behave. (Not the popular imagination, though. Atticus Finch didn't work for a large firm. Neither did Perry Mason.)

Now, my point, as I hope you'll appreciate, is nothing so hackneyed as big firms bad and small firms good. It's a much narrower observation that small firms and solos are underrepresented in our professional media — and that this is not a good thing.

It's not good for law students, reading Above The Law in class and thinking that the fascination with large firms and their payrolls is normal and healthy. It's not good for new graduates who read legal magazines and newspapers and come to believe there's something less admirable and prestigious about working in a smaller firm (or, heaven forbid, in a public-sector or law department capacity). It's not good for the profession as a whole that the interests, priorities, cultures, and business habits of large-firm lawyers are presented as the default setting for private practice. And it's not good for smaller practices, which count the majority of all lawyers among their ranks, that they don't get to hear their stories told, their concerns addressed, their best practices circulated, and their career choices validated in proportion to their presence in the profession.

If there's a solution here, it's going to have to emerge from the ranks of these smaller-firm lawyers themselves — waiting for institutional publishers to change their editorial focus is not a good plan. Smaller practices need to find a way to amplify their voice and multiply their narratives within the profession as a whole. Maybe they need to help create their own media channel, pooling resources and enabling advertisers to find and support them. Maybe they need to harness the power of social media in ways that big firms haven't figured out yet, to create the first truly online legal periodical through some innovative combination of blogs, RSS, Twitter and LinkedIn, and focus it on their issues. Maybe they need to figure out what the small-firm equivalent of Legal OnRamp would look like, and start recruiting their clients to join.

In any event, I'm inclined to think our current fascination with the size of a law firm will soon start to fade. As someone pointed out at the College of Law Practice Management's Futures Conference last month, "big firm" and "small firm" are increasingly specious and distracting distinctions. To the extent we need to divide the bar — and it's not always clear to me that we do — we should divide it along the lines of whether a firm serves a consumer client base or a corporate/institutional client base, because those really are very different types of businesses. That'd be a lot more useful than adding up how many lawyers use the firm's stationery, and drawing unwarranted assumptions from the result.

"Eighty percent of the poor in the United States are unable to afford a lawyer or find pro bono help for their civil legal problems, according to the American Bar Association." That sentence, from an American Lawyer article last month, is not only embarrassing. It's also an omen.

The article in question, titled "Unmet Needs," was part of a special series on pro bono in the United States, including the top 100 pro bono-friendly law firms and a powerful critique of big-firm pro bono by Deborah Rhode. The latter piece highlighted how pro bono at too many firms is less an exercise in professional and public responsibility than it is an opportunity to enhance associate recruitment and retention and score some easy PR points. The result, Rhode points out, is that the clients most in need — the "sob stories" and "difficult clients" referenced in the article — are the least likely to get pro bono help from these firms.

It reminded me of a conversation I had last year with two senior practitioners of the local bar. Both lawyers were partners in national firms; both were also extensively involved in volunteer and community activities. They were lamenting the pro bono culture that had taken hold in law firms, especially among newer lawyers. Young associates were constantly clamouring to do pro bono work for one socially aware organization or another. "What I'd like to see," one lawyer said, "is a lot more of them go down to family court and help out some of the unrepresented litigants there. That's where we need pro bono help right now."

pro bono help of that kind is just the sort of "unmet need" that the American Lawyer article was talking about. The writers spoke with legal aid and pro bono lawyers across the US and identified five "needs baskets" where the demand for pro bono work is great and the supply from big firms is limited:

1. Representing military personnel
2. Helping the unemployed
3. Easing the load in family court
4. The cracking pro bono infrastructure
5. Serving the rural poor

The first category might be uniquely demanding in the US (and perhaps also Great Britain) right now, but the other four needs baskets are present in virtually every common-law jurisdiction. AmLaw was focusing on pro bono and large law firms, but it seems to me that this is part of a larger pattern of areas systematically under-served by lawyers.

It's almost received wisdom in our profession that many practitioners couldn't afford to hire themselves if they needed a lawyer, a statement that I suspect is at least a little exaggerated. But for many people, especially those in the categories above, it's no joke: they flatly cannot afford to hire a lawyer for anything more than the most basic tasks. Legal assistance is a service that middle-class people, with help from family members and savings accounts, can just about manage. It's something that working-class people struggle terribly to afford. And for the poor and unemployed, it's legal aid, pro bono, or nothing. And thanks to the recession, legal aid systems are being cut back in the US, the UK and Canada, while the number of people applying for legal aid is growing.

If you're a lawyer with a conscience, that should bother you a great deal. But even if you're without a conscience, you should still be worried by this trend, because it's about to dovetail with another trend and lead to some serious consequences: lawyer shortages outside urban centers are starting to become endemic in some countries.

Canada: "43 percent of lawyers practising in [B.C.] are now over the age of 50 … in the last 10 years the numbers of lawyers aged 51 to 60 has doubled, with an average age across the province of 47 years old. In small communities, the aging of the profession is even more pronounced, with an average age of over 50 years old."

Australia: "[M]any rural and regional practices do not have enough lawyers to service community needs, with 43 per cent of principals indicating that their practice currently does not have enough lawyers to service its client base. The problems looks set to escalate, with a large number of lawyers – many of whom are sole practitioners – looking to retire from practice in the next five years."

Japan: "The dateline is Yakumo, a small city of almost 20,000 within a legal district of about 50,000. Journalist Norimitsu Onishi reports that it is not unusual for cities five times that size to have not a single lawyer."

The root causes of lawyer shortages are the same everywhere: aging practitioners ready to wind down their practices, not enough young lawyers willing to move to smaller communities to replace them. It's not surprising that the US, a country with more than one million lawyers, doesn't have many lawyer shortages, but less heavily populated states like Maine and Idaho are reporting such shortages already. Most industrialized countries are facing the prospect of communities without enough lawyers to serve the local population.

So from one direction, we have growing numbers of people in dire circumstances needing but not getting lawyers' help. And from the other direction comes a growing number of non-urban centers without enough lawyers to meet residents' legal needs. Without question, the demand for legal services is growing — but the supply of these services, how much they cost, and where and to whom they'll be delivered all lie within the control of lawyers. And as we've seen, we can't always count on lawyers to put the public interest ahead of their own interest when deciding how their supply will meet that demand.

So how do you think this is going to end? Faced with a legal profession unable or unwilling to provide affordable legal services to clients whom and in communities where they have little economic interest, do you suppose governments will stand idly by? Do you think they won't wonder why it is that lawyers and only lawyers are licensed to provide the great majority of legal services? Do you think they'll continue to believe that the Unauthorized Practice of Law is a legitimate restraint on the delivery of legal services? Do you think they'll ever consider lawyers to be anything other than facilitators of legal services delivery?

If you think all these things will come to pass, that the status quo will roll along unchecked, then more power to you. But if not, then you might yet come to believe that the era when lawyers were in control of the legal services marketplace is drawing rapidly to a close.

The legal profession is on the verge of an extremely serious problem. If you want to see what it looks like, check out what Chicago-based firm Mayer Brown has just done. According to the Chicago Tribune, the firm has offered its new associates a deal: take a $100,000 pay cut (to $60,000) and go work in-house for one of the firm's large clients like Kraft or United Airlines. The job is guaranteed for one year and not a day more — after that, if the company doesn't keep the associate, she's on her own.

It tells you something about new lawyers' state of mind that most of the associates grabbed this opportunity. As John Wallbillich at the Wired GC observes, there's little downside for the associate: either he's hired, or he's let go with valuable experience under his belt, or he develops an arm's-length relationship with the client under his own shingle. And from the client's perspective, hey, free lawyers are always nice to have. The article indicates other firms might be reluctant to follow Mayer Brown's lead, in case the seconded associate bombs and the firm is blamed — which I find pretty amusing, since these firms don't seem to mind if the associate bombs while pumping out billable hours on the client's dime. But whatever, the client seems happy enough, too.

So that brings us to the question: what's in this for the firm? I mean, Mayer Brown is basically paying associates $60,000 not to work for them. This, at the same time that dozens of large firms are paying associates not to work for them either, but rather to report to law clinics and public-interest legal employers, or to travel or do "something meaningful." And still other firms are paying future associates still in law school to defer their employment with the firm, maybe for good. These current and future lawyers evidently hold so little value that their employers will pay someone to take them off their hands. Associates are starting to look like the equivalent of subprime mortgages for law firms — toxic assets they want moved off their books.

Law firms paying associates not to work for them isn't just a symptom of the recession, though — it's worse than that. In normal marketplaces, employees are paid roughly in accordance with the value they produce through the application of their skills and knowledge to their assigned tasks. In smaller law firms, this holds true: a partner won't take on a new lawyer unless there's work that needs doing and the lawyer can accomplish it with enough competence to keep the clients satisfied and the fees coming in.

But the large-firm leverage model skewed that system. An associate could be assigned endless cycles of rote work with little value, billing out the hours logged until the associate paid off his annual cost to the firm and became an engine of pure profit. This worked because institutional clients didn't know or care enough to question exactly what the associate was doing and why he required so much time and money to do it. The associate's value to the firm lost any connection to his actual skills and qualifications.

That system, as you may have noticed, is coming to a grinding halt. For a variety of reasons covered here before — closer scrutiny by more sophisticated and motivated clients, new technology and processes capable of handling rote work cheaply, low-cost alternatives to associates in low-cost jurisdictions — large firms won't be able to employ armies of associates on work that a bright law student could do. In many cases, they'll have to restrict the number of new lawyers in their employ to those who can handle sufficiently sophisticated work that a client is willing to pay for. The diamond — or the cylinder — will come to replace the pyramid, and law firms will be leaner, more effective and more rational organizations for it.

But first, the profession is going to go through a crisis, one triggered by a growing buildup of law school graduates who can't find work. Year after year, we'll produce more new lawyers than the market will hire — the large firms won't be taking on nearly as many, while legal talent demand overall will narrow to lawyers with proven skills and/or experience. And these masses of unemployed law graduates are going to make us face an ugly truth we've been avoiding for years: we're doing a terrible job of training our future lawyers.

Whether they ought to or not, most law schools don't train their students in the skills they need to contribute value as lawyers — new associates often end up with rote work because in many cases, they're not equipped to do much else. The bar admission process offers too little training and comes too late in the game to provide much help. Articling terms, where they exist, offer mixed results in terms of producing competent lawyers. We know all this, but we haven't been sufficiently moved to do anything about it, because new lawyers always seemed to muddle through somehow.

But the emerging economics of the new legal marketplace won't allow us to disguise unskilled law graduates as billing drones or on-the-job training projects anymore. Unless they can hit the ground running as reasonable contributors of client value, these graduates will be very hard-pressed to find work as a lawyer. Hanging out their own shingle will be a risky option, given their paucity of skills, but one that many of them simply may have to take.

A huge disconnect will quickly become evident: our professional admission system still imagines that purchasers of legal services are willing to effectively subsidize the new lawyer training process. The purchasers will say otherwise, and this reality will bear itself out in rising new lawyer unemployment rates. This will force us to accept that new lawyers must be ready, upon entry to the bar, to provide at least a minimal level of useful legal services to clients — a base of competence from which they can grow as professionals. And that realization will lead, faster than we think, to a wholesale restructuring of the legal education and lawyer training system.

When this change will happen, how long it will take, what form and directions it will assume, which institutions will survive and which won't — I have no idea. I dislike making predictions as a general rule, but this seems to me less a prediction and more the inevitable result of clear trends now well underway. When law firms pay their lawyers to work for someone else, something has gone seriously wrong. We're looking at the canary in the coal mine.

….and so once again, best wishes from all of us on the faculty to you, the class of 2012, as your journey through law school begins.

Before I yield the microphone, I have some news to share both with you and with my colleagues: that little lottery ticket I bought on a lark at the corner store last month turned out to be the sole winner of the $6.7 million jackpot. When the dean returns to her office, she’ll find my graceful letter of retirement on her desk.

And so, as this is my last official function here, and as I happen to be at the podium, I thought I would share with you, the class of 2012, my unfiltered thoughts about the legal education you’ve signed up for and the legal profession you’ve begun the process of entering.

Many of you have already approached me and other faculty members to ask about the job market for law graduates — as well you might, since every day brings news of fresh casualties from the Great Deleveraging. This is undoubtedly your primary concern — a far cry from my first day of law classes 19 years ago, when our chief interest lay in finding out what downtown club was hosting the latest orientation event. We didn’t start thinking about jobs until our second year; I’d be surprised if anyone here hadn’t thought about jobs by your second day.

Of course, in my first year – it really wasn’t that long ago, you know — the classrooms weren’t named after law firms, and the career services office was a locked and unstaffed storeroom full of firm brochures halfway down a basement corridor. Most of the faculty considered employment for graduates a subject beneath their attention – at least, employment other than as a law professor or judge. This was to be expected, since few of them had more than a passing acquaintance with life at the private bar, and more than a handful had philosophical objections to market-based economies in general.

That’s all changed now, of course. For better or for worse – and I can find you advocates for both sides – the evolving consensus is that law schools should make at least some effort to help you secure jobs and/or to ensure you possess some skills and knowledge geared towards private law practice. The career services office is now in spacious quarters on the main floor and staffed with full-time paid professionals. On-campus interviews by law firms are an unremarkable fact of life. Practicing lawyers teach numerous courses – at some schools, in fact, these sessional lecturers outnumber the full-time faculty. No one could seriously question whether law schools have made an effort to accommodate your career interests.

But is it enough? Some people say we’ve only improved the extra-curriculars, and that the fundamental nature of the degree is still traditional to the point of being reactionary. Here in Ontario, the mandatory first-year curriculum hasn’t changed in more than 50 years — you’re going to learn the same subjects this year as your predecessors did when JFK was the president down south. We still teach you the underlying principles of law and make you read judicial decisions about the application of these principles to various to legal problems — and we still don’t give you the opportunity to apply those principles yourselves. Aside from a few procedure and ethics courses, most schools don’t give you much of a glimpse into the life of a practicing lawyer. Call it a J.D. or an LL.B., but your average law degree remains more a liberal arts education than a graduate or professional instruction, and certainly is not preparation to practise law.

Or is it too much? Spend enough time as a law school professor, and the drift away from actual pedagogy and towards market-readiness training seems irrefutable. I’m not naïve enough to believe that you or your predecessors ever enrolled in law school for the sheer joy of learning Land Transactions or Business Associations. But the drive to generate nothing but the highest grades in order to generate the most job offers has now become relentless. Too many students now make the pursuit of an A the primary if not the only purpose of taking a law course. If many faculty members have been too slow to recognize the professional purposes of a law degree, many students — and the law firms that eventually hire them — have been too quick to turn law school into a jurisprudential version of the college football season and draft, with too much attention focused on what comes after graduation, not before.

The increasingly uncomfortable truth, unfortunately, is that we law schools are stuck between these two extremes. To a growing extent, we are losing our sense of direction and purpose: neither fish nor fowl, neither institute of higher learning nor professional training college. I fear, in trying to be both, we have ended up being neither. Forced to hew to our longstanding structure by both faculty and tradition, but pulled hard the other way by the private bar and the realities of the legal marketplace, we have spent the last two decades missing an opportunity. With few exceptions, we have yet to take a stand and say, “This is what law school is for. This is the part we play in the legal community and our society.” What is the role of law schools in the 21st century? I don’t know, and I’m not sure most of my colleagues do either.

This is a serious problem for us, because these are times of great upheaval, and if we do not choose change, change will be chosen for us and applied to us. The private bar’s unhappiness with legal education has never been higher — and the bar’s presence in our daily lives and influence over our students’ attitudes have never been higher either. More law societies and state bars are re-examining their bar admissions processes, and I foresee a growing belief that if law schools will not give the bar the sort of new lawyer training it wants, the bar will provide that training on its own and bypass law schools altogether.

But this is also a serious problem for you, because you will graduate into a 21st-century profession with which you will be largely unfamiliar and for which you will be largely unprepared. To the extent we here at law school are well versed with the practicing bar, it is with a 20th-century practice model, one based on:

• exclusive control by lawyers over the selling of legal services,

• technology as a tool for the completion of tasks by lawyers, rather than as a means of performing those tasks alone,

• uninformed clients who exist in either a fiduciary or adversarial position with lawyers, and
• work recorded and billed, and lawyers rewarded, by the hour.

Each of these pillars of the legal profession we’ve always known is now buckling, along with many others (and that’s not to mention potential changes to ethics standards such as client conflicts of interest and non-lawyer ownership of firms). The nature of the practice of law is changing, and none of us here know what it’s changing into. What’s worse, neither do the people who’ll be administering your bar passage or the people who’ll be hiring you. There’s never been so much uncertainty around what the nature of a lawyer’s professional life will be like – and yet your legal education will be remarkably similar to the one I received in 1990. I’m not sure whether there’s anything we can do about that – but I sure do wish we would try.

My fervent and parting wish, in fact, is that law schools would take the lead in figuring out what tomorrow’s legal profession will look like, so that we can prepare tomorrow’s legal professionals to lead it. There are some very honourable exceptions to this, but as a general rule, law schools have kept a low profile in, or even absented themselves from, the important discussions and debates taking place right now about the future of law. Lawyers, law firms and lawyers’ organizations are doing most of the talking, and although we are constantly referenced in these discussions, we seem disinclined to take a central role. We must appreciate that the result of our failure to secure a place in these conversations will be that the decisions that flow from them will be applied to us, not by us.

But that is our problem, not yours. Your challenge is to prepare yourselves as best you can for a future profession that is still taking shape – to anticipate “unknown unknowns,” as the expression goes. You can’t know the final form of things to come, but you can discern the principles that will shape it: professionalism, collaboration, innovation, and above all, client service. So start now: get in the habit of cooperating with your classmates, join social networks with a lawyerly focus, follow the profession’s innovators through blogs and podcasts, and wring as much information as you can between classes from your sessional lecturers about the experience of the lawyer grind — and, yes, from your veteran faculty members, too: they’ve seen it all come and go, and they have wisdom you can only guess at.

Use these resources, and as many others as you can pull together, during your time here. Understand, above all, that your life at law school — the courses, the interviews, the grades, and all that — is not the only or a sufficient aspect of your legal education. It's one piece of the puzzle, and you need to find the others. The days when a law degree was all you needed to be a lawyer, if they ever existed, are gone now. Your preparation for a legal career — a career that will be different from that of anyone who’s gone before you — is now your responsibility. Don’t look back three years from now and say, “Law school didn’t prepare me for a legal career.” Like it or not, we can’t do that anymore. Like it or not, that’s your job — and it starts right now.

As does my retirement. Drinks in the law lounge are on me.

The mid-April date for the Law21 Blawg Review reflects both the founding of the Canadian Bar Association and, of course, the establishment of our constitution and Charter of Rights. Accordingly, I'd like to make an extra effort to showcase Canadian law blogs for the rest of the world. (This week's edition of Blawg Review, as it happens, by May It Please The Court's J. Craig Williams, referenced Tartan Day's Canadian connections). So this post is also an open invitation to Canadian law bloggers (and their readers) to submit their favourites — it'd be great to see a lot of nominees from our incredibly deep pool of law blog talent in Canada.

It's best to make your submissions through the official Blawg Review channels rather than by direct email to me. You can submit your nomination by going to the "Submission Guidelines" page at Blawg Review and following the directions there. Thanks in advance for your assistance in showing off the week's best law blogs! (Cross-posted to Law21).

"Are we looking at a second Depression? I don't think so," said Paul Krugman, NewYork Times columnist and Nobel-Prize-winning economist, during his luncheon address to the Canadian Corporate Counsel Association's World Summit [PDF] last week in Vancouver. Then he added: "A month ago, I would've said, 'Absolutely not.' But today, I'm going to say, 'I don't think so.'"

That was the standout quote for me from an economic assessment so pessimistic that at its end, Krugman admitted: "I wish I had some positive things to tell you." But aside from, as he said, having "people in Washington I can now talk to," he didn't have much good news to share. The powerful tremors emanating from Citigroup add to worries that even an astonishing American stimulus package of $800,000,000,000 — a financial adrenalin shot roughly equal to Australia's entire GDP — won't cover even half of the expected $2,000,000,000,000 in losses this recession is pounding out. Every country's economy is in trouble, and even those with the political will and financial tools to address the problems seem stymied. Europe is facing particular challenges, while China — whose financial statistics are "science fiction," Krugman said — is facing a sharp downturn. He thinks the eventual solution to banks in crisis is going to be nationalization — though he observed that not even the Obama administration is psychologically ready to take that step yet.

Now, another Great Depression is still a considerable distance away (we're nowhere near 25% unemployment, GDP cut in half, or a stock market reduced by 90%, for example). And since whatever the mainstream media brings you is pre-inflated at least 20% by hype, you could be forgiven for thinking that things are bad, certainly, but not borderline catastrophic. But while Krugman's grim outlook took me aback, what really struck me was the lack of surprise among audience members, including a lot of general counsel and in-house lawyers from national and global entities. Some of them nodded in agreement and all of them seemed to have had their beliefs confirmed, not undermined, by his remarks. They had the air of people who know exactly how bad things might be.

Law firm lawyers should be concerned by that. They should also be concerned by this: for the most part, surprisingly little was said about the problem of outside counsel costs. This wasn't because the problem had gone away; from my reading of comments on stage and in conversations, it was because legal costs had ceased to be something to talk about and had become something to be dealt with. The simplicity and finality of that sentiment were unnerving. I asked an in-house lawyer to name one thing her outside law firms could do to make her happier. "Reduce their costs," she replied. Fair enough, I said; should they do it by outsourcing, or by automating, or by — she cut me off. "I don't care," she said flatly. (Patrick J. Lamb reports a similar experience.)

If these are the dark, heavy clouds of a major storm overhead, then the downpour is already hitting the ground. The steady stream of law firm layoffs at the end of 2008 has turned into a flood in the first month of 2009. Morrison & Foerster cut 53 lawyers and 148 staff; Wilson Sonsini dropped 45 lawyers and 68 staff; Cooley Godward laid off 52 lawyers and 62 staff; Blank Rome cut 20 lawyers and 40 staff. Baker & McKenzie laid off 20 people, Foley Hoag 32, and Morgan Lewis 50. Meanwhile, Clifford Chance's global cuts are at 150 and Linklaters expects to drop up to 120 lawyers and 150 staff. Cadwalader continues to bleed. And don't forget the firms that cut only or mostly staff. That's about 1,500 reported layoffs in January, and more unreported — not all that many in a million-plus profession, perhaps, but still more than we've seen all at once in a long time.

Why the sudden paroxysm of cuts (with more certain to come)? Partly, the firms' press releases speak truth: there is less work going around and there is overcapacity. But few firms have fallen so idle that a lack of work threatens their ability to meet payroll and keep the lights on; more often, the cuts are made to maintain overall profitability, just like in any other corporate venture. But don't dismiss this as the old "greedy shareholders" story — there's a strategic imperative here.

Firms need to keep their profitability up because they're terrified that their most productive partners, believing their earning power is being diluted or dragged down by lesser performers, will abandon the firm for richer pastures. This "flight of the rainmakers," as Dan Binstock calls it, is a real threat to firms' viability: all it takes is a few key defections to trigger the kind of crisis of confidence that took down firms like Heller, Thelen and Thacher. Setting aside for a moment the question of what kind of "partner" bails on his colleagues in a crisis in order to make more money, this is the harsh reality facing a lot of firms, many of which must have concluded that cutting "less productive" staff, associates or even partners is an existential choice. It's an urgent if not panicky maneuver, and it's not going to work in all cases, because partners are on the move no matter what.

In the short term, the likely results will be the diminution or collapse of an unusual number of firms, and the brief emergence of "super" firms that went on buying and poaching sprees, added a lot of partner talent, and generally feasted on the remains of their failed rivals. Much will be made of these "winners," whose leaders' vision, aggressiveness and timeliness led their firms through the crisis bigger and better than when they went in. Eulogies will be written for the "losers," heads shaken and tsks tsked at "victims of the recessi0n" that shuffled off this solvent coil. And many people will expect the script to end there and for things to go back to normal shortly thereafter.

But I'm not sure normal's coming back that fast, if it comes back at all. As mentioned at the outset, this is going to be a hard downturn, not least because of its length. Krugman talked about a U-shaped recession as the upside, an L-shaped recession as the worse-case scenario; few people are talking about a V-shaped recession anymore. Accordingly, law firms can't simply shed ballast for a few months and hope to ride out the storm; the brunt of this recession looks more and more likely to stretch into 2010, and could conceivably go longer. There just aren't enough staff and associates, or even less-productive partners, to keep throwing overboard for that length of time. Firms will have to continually ward off those crises of confidence, and the longer this lasts and the more often a partner's departure incites a death watch, the harder it's going to be to hold the firm together. Those firms with strong cultures, true collegiality and rational business cultures will be fine; the other 90% are in for a very rough ride.

All recessions end, and eventually we'll come out on the other side of this one too. But who'll be there? There'll be those super-firms I mentioned, at least one of which will be a true US-UK powerhouse with leading practices in both New York and London. I expect to see a lot more midsize firms, quite a few of which were formerly large outfits with multiple offices. But I think we'll also see the start of a far more important transformation: the beginning of the end of the traditional law firm model.

That model, like the financial system upon which many of its users grew fat, has been pushed to its limits and is close to breakdown. Leverage is maxed out, and not just the financial kind that banks are unwilling or unable to extend for the foreseeable future. The ranks of associates can't be swelled much larger than they were, and the billable hour targets for those associates can't be pushed any higher, not unless firms start handing out human growth hormone to their new lawyers. The lack of professional management — part-time leaders with one eye always on their practices — is not sustainable for multi-million-dollar 21st-century businesses. Hourly billing is broken — neither the people billing the time nor the people paying the invoices can stand it any longer. Hiring straight-A law school graduates and hoping for the best is an irresponsible and indefensible way to manage talent and grow business. And so on.

The traditional law firm model, driven to its logical extreme, is busting its gears and jumping its track at the worst possible time: clients are ready to impose unilateral retainer conditions, competition from non-traditional law offices, non-lawyers and overseas lawyers is gathering steam, and technology that can automate, systematize and rationalize law firm cash cows like due diligence and document review is here. Take that powder keg — it would be a unique convergence of forces even in good times — and drop in the lighted match of an unprecedented global recession; the blast likely will transform the landscape of the private bar.

It seems to me that the traditional law firm model — designed to maximize profit and convenience for lawyers — is beginning its decline. Simultaneously, a new model — one designed to maximize service and efficiency for clients — is starting its rise. Richard Susskind's new book (which will be reviewed here shortly) paints a vivid picture of an unbundled, pre-programmed, automated, systematized, packaged and downloaded future for legal services — a marketplace whose contours and functions are dictated by clients. That's where we're headed, and this recession will be a key early catalyst in getting us there.

This transformation won't happen because lawyers suddenly see the light and come to realize the self-evident virtue of a client-centred law practice. It won't happen because clients, especially the corporate kind, suddenly decide to be the change they've been pestering firms about for years. We've been waiting for these forces to trigger change on their own, and I think we can now call that watch off. All things being equal — which they've been for decades — the cloistered legal services marketplace keeps right on rolling. This change will happen because the realities of a badly wounded global economy will require it. The times really are changing, and despite its best efforts, the legal profession will change with it.

Speaking about the present crisis, the new US president told his country that it's time for people to "put away childish things." It's also time, it seems to me, for the legal services marketplace to grow up.

Considering that it has the potential to profoundly reshape the nature of American legal education, I’m a little surprised that the Interim Report of the Outcome Measures Committee of the ABA’s Section of Legal Education and Admissions to the Bar hasn’t received more attention since its release in June. Aside from brief mentions at the places you’d expect — Best Practices for Legal Education and the Law Professors Blog Network — I haven’t seen the report and its implications discussed in much detail. So I thought I might take a crack at it.

What follows isn’t really a summary of the report, which is 65 pages long — neither you nor I have that kind of time. And there's a lot of content, such as assessment methodologies and other professional education regimes, that's important but not germane to my present interest: the practicing bar’s long-overdue willingness to play a role in deciding what a legal education should actually accomplish. So with those caveats issued, here we go.

The ABA, for those who don’t know, is in charge of accrediting law schools in the U.S. About 200 schools have received the ABA’s imprimatur so far, and all states recognize that graduating from such schools qualifies a person to take the state bar examination. (Though ABA accreditation is apparently not always necessary for a school's graduate to write a bar exam, as a recent case in Massachusetts decided (HT to Joseph Dang.))

Anyway, in May 2007, the Section’s Accreditation Policy Task Force recommended appointing a committee to consider revising the accreditation process, in order to rely more heavily on “output measures” than on “input measures.” The afore-mentioned committee was struck in October 2007 and issued its preliminary report this past summer.

What do we mean by input and output measures? The report gets right to that in its very first paragraph:

In recent years, there has been a growing sentiment within the legal education community that the Accreditation Standards of the ABA Section of Legal Education and Admissions to the Bar should be reframed to focus more heavily on “outcome measures” – accreditation criteria that concentrate on whether the law school has fulfilled its goals of imparting certain types of knowledge and enabling students to attain certain types of capacities, as well as achieving whatever other specific mission(s) the law school has adopted.

Those who advocate this change maintain that the current Accreditation Standards rely too heavily on “input measures” – accreditation criteria that concentrate on whether law schools are investing the right types and amounts of resources (such as physical plant, number of faculty, and budget) to achieve the goals identified in the accreditation standards and the school’s missions.

This represents a major shift in how the ABA assesses schools’ fitness for accreditation. It’s also — to my mind, anyway — a pretty clearly good one: a school is as good as its graduates, not its infrastructure, especially when they're graduating into a professional environment. And in fact, outcome measures are specifically and approvingly cited in the preamble to the ABA’s Standards and Rules of Procedure for Approval of Law Schools. But in practice, thanks to written standards at odds with this emphasis, input measures have tended to win the day. The ABA clearly is ready to change that, and the report, in its conclusion, paves the way there:

An outcome-oriented approach to accreditation would call for reframing Standard 302 so that, instead of focusing on the areas and types of instruction that the law school should provide, the Standard would instead focus on the types of lessons the students should have learned … by the time of graduation from law school.

But the committee was also instructed to think about output measures themselves, and to look beyond traditional measures like bar passage and employment rates. It was encouraged, in so many words, to rethink what should qualify as meaningful outcome measures of a law school’s effectiveness. To do that, the report relied heavily on two recent watershed works in legal education: Educating Lawyers: Preparation For The Profession Of Law (Carnegie Foundation for the Advancement of Teaching, 2007) and Best Practices For Legal Education: A Vision And A Road Map (Clinical Legal Education Association 2007) [PDF].

The committee turned to the Carnegie Foundation (CF) book to answer the key question: “What outcomes may be regarded as central to the legal education field as a whole?”

To prepare students to be competent professionals, CF ascribes three apprenticeships that should make up their education. The first apprenticeship is the cognitive or intellectual, which provides students with the academic knowledge base. The second apprenticeship is the forms of expert practice shared by practitioners. The third is the apprenticeship of identity and purposes, which introduces the student to the values required of the professional community. … In shorthand, CF describes these three apprenticeships as “knowledge, skills, and attitude.”

You could substitute “values” for “attitude” and end up pretty much at the same destination. A law graduate should possess knowledge of the law, the skills with which to apply that knowledge, and the values or attitudes or judgment to use the first two traits ethically and for the public good. The committee acknowledged that U.S. law schools have over-emphasized the first trait to the detriment of the other two.

From that point, the committee dug in for a great deal of research: looking at accreditation standards in other fields of professional education, studying the work of regional and national accreditation commissions outside legal education, and reviewing submissions by groups such as the Society for the Advancement of Law Teaching. At the end of that process, the committee, as expected, recommended that "the Section of Legal Education and Admissions to the Bar re-examine the current ABA Accreditation Standards and reframe them, as needed, to reduce their reliance on input measures and instead adopt a greater and more overt reliance on outcome measures."

Now, if you’re like me, you’re probably wondering: “So what exactly are the outcome measures that law schools should be measured against?” The committee wondered that too, and asked itself whether the ABA should set out detailed outcome measures when designing those accreditation standards.

But in the end, the committee decided that a law school should be given “considerable flexibility … to determine the outcomes the school seeks to effect (presumably within broad contours established by the Standards and Interpretations) and the mechanisms by which to measure those outcomes.” This is in pursuit of greater innovation and to allow schools more breadth in cost allocation decisions. But it's also in support of the idea that every school should be allowed to define its own “mission,” so long as it’s then held strictly to account for its efforts in achieving it:

[I]n order to provide law schools with the information they need for making decisions about what outcomes to set and how to measure them, the Committee recommends that the Standards Review Committee and the Council adopt Standards and Interpretations that would set very general parameters regarding outcome measures and then flesh those out with commentary setting forth models that have proven successful and that a school could choose to use if it wishes.

Okay, then: what are those parameters? What should those commentaries be? What are the “broad contours” of the Standards and Interpretations within which schools must define their outcomes? The committee wasn’t sure if its mandate included coming up with proposed wording for new Standards and Interpretations. It would like to do so, though, judging from this paragraph at the end of the report:

The committee believes that its presentation of potential wording for any such new Standards and Interpretations might help to clarify the committee’s vision of the new outcome measures and how they would operate in practice. Accordingly, the committee is inclined to present such potential wording in its final report, with the understanding that any such draft Standards and Interpretations would be merely illustrations, offered to the Standards Review Committee as one of many possible approaches to the subject. Barring instructions to the contrary from the Section Chair, the committee intends to present draft language of this sort in its final report.

Nonetheless, over the course of the report, you can glean some of the factors to which the committee refers favourably and some of the principles that it would like to see schools follow. For instance, here’s the committee quoting from Best Practices’ “seven principles for developing outcome assessments”:

• faculty should formulate outcomes in collaboration with the bench and bar;

• outcomes should be reasonable in light of the abilities of the students and faculty.

I don’t think it’s a coincidence that the first factor listed — collaborate with the bench and bar — is the first factor listed. There are numerous other excerpts from the report, either quoted from sources or drafted by the committee. Sift through them and note the underlying theme:

- [L]aw schools should shift in assessment from the conceptual knowledge accumulated by students … to the assessment of practical competencies (professional skills) and the development of professional identity.

- Most lawyers spend most of their time trying to solve problems. Those problems consist of raw facts … presented by clients, along with some questions like “Legally speaking, how do I get myself out of this mess?” or “How do I plan my affairs to avoid getting into a mess like this in the first place?” If our job is to teach students how to “think like lawyers,” then we should train them to solve such a problem.

- Direct evidence of student learning outcomes may include: faculty testing, capstone performances and courses; professional and clinical performances; and third-party testing, including licensing examinations.… Indirect evidence of effectiveness include: work samples; graduate surveys; employer ratings for performance; and self-reported growth by graduates.

- The Law Society [of England & Wales] is currently “developing new forms of examination and assessment of those values, skills, and knowledge [that a solicitor should possess on his first day of practice],” which are “intended ‘to ensure that qualification to practice law is based on an individual’s knowledge and understanding of law and legal practice and their ability to deliver legal services to a high quality, rather than on their ability to complete a particular course or courses of study.’”

- The Australian Law Reform Commission … urged an Australian curriculum re-orientation away from the traditional content focus towards skills and values acquisition and training – towards “what lawyers need to be able to do [rather than] anchored around outmoded notions of what lawyers need to know.”

- [T]raditional legal education does not give enough emphasis to other practical skills such as working with clients, managing a file, the business of law practice, negotiations, etc.

- General Motors has developed an assessment instrument to evaluate the performance of its lawyers, using the Lominger Competencies, with respect to [, among other things ...] knowledge (such as, for example, possessing the appropriate legal knowledge, knowing how businesses work and knowledge about current and possible future policies, practices, trends, technology and information affecting the business and the organization; knowing the competition; and awareness of how strategies and tactics work in the marketplace);

Now, this is just an interim report, and on its face, it recommends only what its commissioners asked it to do: shift the ABA’s accreditation focus from input to output measures. But it seems to me that the committee is also cautiously laying the groundwork for a major rethinking of the purpose of U.S. law schools.

This isn't just about shifting from input to output criteria; it's about reframing those output criteria in practical, client-facing ways. The Legal Education and Admissions Section is being asked to think about law school, at least in part, in terms of producing lawyers with knowledge, skills and values geared towards the practical demands of a professional life of client service. I’ll be the first to say that that’s not all a law school should do. As I’ve said before, a law degree is and should remain an intellectual pursuit, “higher learning” in the best sense of the term. But it's also preparation for using that knowledge in the business of law and the service of clients.

The Interim Report of the Outcome Measures Committee is a first step in that direction and is immensely important for that reason. If the committee continues along this path with its final report, recommendations and implementation, it could end up triggering some of the most significant changes ever to the American legal education system and, shortly thereafter, to the American legal profession itself.

A couple of weeks ago, I wrote about the ascendance of individual lawyer brands. Today, I want to write about the corresponding decline of law firm brands. And there’s no better place to start that discussion than with the fate of Heller Ehrman.

Heller Ehrman, if you’re not familiar with it, is a century-old California law firm that dissolved last week. You can find detailed coverage here, here and here. The lasting impression you take away from these reports is that Heller was neither evil nor incompetent. Its rivals were sad to see it fall, and many of its employees were devastated and in tears, referring to the firm as a "family." There’s no Schadenfreude or sense of just desserts here.

Heller is not the first firm to go down in the relative blink of an eye. Here in Canada, the profession was shocked last year by the sudden collapse of respected Toronto firm Goodman and Carr. Other names like Brobeck and Coudert come to mind as well. In most of these cases, what really stands out is the astonishing speed and seeming lack of warning with which everything gave way. The only tremor emanating from Heller was a pair of failed merger talks, but as soon as that word began circulating, the breakdown was underway.

Sound familiar? It should, unless you’ve ignored newspapers and television for the last two weeks, and the collapsing house of cards on Wall Street that they’ve been chronicling. Because when you get right down to it, the same affliction really took out both Heller Ehrman and the likes of Lehman Brothers: the marketplace suddenly stopped believing in them.

The consistent theme of the analyses emerging from Wall Street’s rubble is that the industry’s level of trust in each of these entities fell away, first gradually and then suddenly. And when that happened, what became apparent — with frightening speed and clarity — was that trust was really the only thing keeping these institutions afloat. Here’s Derek DeCloet of the Globe & Mail:

Mistrust – or lack of confidence, if you prefer – is the most corrosive thing you can ever have coursing through the world's banks and credit markets. Mistrust maims and destroys. In the end, a financial institution's only asset is trust. Brand names, history, branches on the prime corner of small towns – they don't mean a thing unless there's confidence. Ask anyone who worked for Northern Rock, IndyMac, Washington Mutual, Wachovia, Bear Stearns, Lehman Brothers ….

And here’s James Surowiecki in the New Yorker:

[T]he entire edifice of Wall Street is built on confidence. Investment banks rely on short-term debt to run their businesses, and their businesses consist of activities — trading, deal-making, money management — that depend on people’s faith in their ability to honor their obligations. As soon as the customers and creditors of a company like Lehman start to wonder whether it might collapse, they become less willing to lend or to trade, and more likely to demand their money back. The perception of weakness exacerbates the reality of weakness. And although there are myriad measures of a company’s health, nothing looks scarier than a stock price that’s heading toward zero. …

The downward spiral can be stunningly fast and near-impossible to escape. Lehman’s assets were not significantly more toxic last Monday, when the company filed for bankruptcy protection, than they had been a week earlier. And, technically speaking, the bank may not even have run out of money, since it had access to an emergency liquidity line from the Federal Reserve. What Lehman did run out of was credibility. It couldn’t remain a going concern because creditors and customers no longer trusted it.

Try reading those entries again, substituting law firms for investment banks. What Heller Ehrman demonstrates, and what should seriously worry managing partners everywhere right now, is that law firms really are no different. Bruce MacEwen at Adam Smith Esq. is exactly right:

[T]he stark, glaring reality is that law firms are fragile institutions. … There doesn't need to be anything wrong with Heller, or Morgan Stanley, Goldman Sachs, or Merrill Lynch, for people and the market at large to perceive there’s something wrong with any of those firms. It's the run on the bank mentality. … The curtains come down and the lights go out when the abrupt exodus of partners, clients, and erosion of the revenue base, occasion breaches of bank lending covenants and a shut-off of credit.

A law firm's most important asset is not its work in progress, and it’s not even the people who walk out the door every night. It’s the confidence that the market places in the firm — the extent to which the firm inspires continuing untroubled assumption that this collection of talent and commitment is safe to believe in. Everything else is details. And that's why law firm brand is so critical.

Very few law firms possess what marketers would strictly refer to as a "brand" — a differentiating reputation for or identification with some distinguishable trait that constitutes a competitive advantage. But every law firm of even minimal presence has a "brand" in the sense of a recognizable profile in the marketplace based on acceptable levels of competence and reliability.

If a firm is known to sufficient numbers of clients, carries out its tasks, and keeps its promises, it earns confidence. Its name — be it Skadden, Linklater, or McCarthy, or something less gilt-edged — is shorthand for a repository of client trust. Its brand is essentially its marketplace ID, its industry access pass, its credit line of credibility. Lose that, and it loses everything.

And here we come to the crux of the issue for law firms: a brand needs to be controlled. If you’re not in charge of your own brand, if you can’t make it be and do what you want, you’ve got a problem. Because that means someone or something else is in charge of your brand, and you’re at their mercy. Law firms are running out of ways and means by which to control their brands.

Look at it this way: a brand is a promise to the marketplace that your product or service will consistently feature the characteristics X, Y and Z. An individual lawyer can say, “I will provide these sorts of legal services, I will deliver them in this fashion, and I will deliver them to these types of clients.” That's the heart and soul of a professional brand right there. The lawyer who chooses to makes those promises and carries through on them controls his brand.

A pair of lawyers can make and keep those promises about as well as one can. Five can manage it, though it gets harder to ensure everyone meets and maintains the same standards and criteria. It’s harder again with a dozen lawyers. And when you get past 20 — and especially when you get to 200, or 2,000 — it becomes well nigh impossible. Law firms of any substantial size really have little control over the clients they take on, the ways in which they deliver legal services to those clients, and who is delivering those services. Think about it.

Law firms don't have much control over the clients individual lawyers take on.
Conflicts of interest are the only obstacle that a firm can realistically place in the way of a partner who wants to being in a new client. Unless the new client would interfere unduly with an existing (and more profitable) client, a lawyer is generally free to take it on — regardless of how poorly or even contemptuously his or her partners might regard that client. The lifeblood of a law firm is billable business, and as long as the lawyer brings that business in, the firm won’t much mind who or what the business is attached to.

Law firms don’t control how lawyers deal with their clients.
Lawyers are notorious for the unique and even idiosyncratic ways in which they deal with their clients. They call clients as often or as infrequently as they like, deliver written opinions in whatever format they prefer, offer as much or as little detail and explanation as suits them and their individual clients, and so forth. Consultants urge firms to institute differentiating practices like 24-hour client callback. But the reality is that enforcing practices like that is pragmatically difficult and culturally all but impossible. A client who switches lawyers within the same firm might reasonably think he has actually switched firms altogether, for all the consistency in service delivery between the two.

Law firms are losing control over who delivers their services.
This is, in many ways, the most critical one, because clients hire the lawyer first, the firm second. Unprecedented lateral movement of partners, combined with firms' proven inability to retain associates at will, means the people delivering a firm's services change with mind-spinning frequency. Many clients associate a firm's brand with that of the lawyers with whom they deal. But if the names and faces of those lawyers keep changing, that reputation becomes equally transient and unreliable. Are you a great M&A firm? Okay, your best two M&A lawyers have just joined your biggest competitor, and a third has gone in-house. What are you now? Your brand has changed, and you had no say in the matter. If that lack of control doesn’t scare you, it should.

What it comes down to is this: a firm’s marketplace currency — its lifeblood — is the degree with which its brand is regarded with confidence by the marketplace (and that includes its clients, its competitors, and its own talent). Managing that brand and maintaining that confidence is therefore of the utmost important. But the means by which a firm’s leadership can do that are slipping away.

The newest, most affordable and most intriguing branding tactics — blogging, Twittering, micro-marketing, pinpointing — trend towards the individual lawyer, not the collective firm. Firm branding tactics — advertising, sponsoring, partnering — are traditional, resource-intensive and mass-market-oriented: blunt instruments in an age of precision targeting. It’s easy for an individual lawyer to build a trusted brand through her character and accomplishments, and to amplify that brand by blogging or podcasting; it’s very difficult for a firm of 100 lawyers to build trust the same way.

If many law firms were to stop and take stock of their most important asset, they would likely realize that their brand owes far more to historical momentum than it does to consistent deliverables. Now, momentum is a powerful force, nowhere more so than in the law; but you simply don’t know when it’s going to run out and Coyote Gravity will kick in. Dig beneath the surface of many law firm brands, and you’ll strike hollow space a lot sooner than you might think. In a lot of cases, there’s not much there there.

What can law firms do about this? Honestly, I’m not really sure there’s much they can do. If your brand is your lifeblood and you don’t have control over it, then you need to take steps to gain that control, even if only a measure of it. You need much stronger oversight of client intake and service delivery methods. You need to outdo all your rivals in terms of your ability to keep partners on board and retain the associates you most want to retain. You need sufficient consensus to enforce at least a modicum of the standards you say you stand for. And frankly, you need to be of a sufficiently compact size that you can realistically manage to accomplish some of these goals.

But really, I’m not sure all of these put together would make enough of a difference. I still believe the long-term future of the legal profession belongs to client-driven alignments of solo and small practices. The world’s largest firms — the 10,000-lawyer behemoths on the distant horizon — are going to be those that specialize in commodity-type work, the kind of things that can be automated, templated, algorithmed and standardized — the kind of work for which ISO 2001 ratings will be meaningful measures of quality assurance. The bigger you are, the more your work needs to be susceptible to the consistency and predictability of the assembly line. That’s just about the only way you can develop and control a brand on a scale of that size, and the law will prove no exception.

If you don’t control the content of your brand, then your brand becomes little more than leftover reputation, general opinion, holdover name recognition. Active brands are powered by trust and confidence, and at the end of the day, these attributes are earned by individuals, not collectives. Gather and nurture these individuals and their brands, and you have a chance. Fail to do so, and you’ll be left sitting around wondering when the inertia will run out.

There will come a day, sooner than many people think, when vast numbers of law firms disappear almost overnight. The shock to the profession will be profound and lasting. But the reason will be simple: the glue that held these entities together — the confidence of the marketplace, the trust in the name, the power of the brand — dried up and wore off, little by little, until the bonds of collectivity simply fell away. That’s what happened to Heller Ehrman.

Who is your firm? Why should we believe you? Why should we believe in you?

But the most essential thing law firms do for their lawyers is to share their brand — to give their lawyers the boost in personal prestige and profile that comes with being associated with a respected name and identity. Set aside all the recruitment and retention pitches — the overriding reason why lawyers stay with a firm for the medium-term or beyond is that the firm's brand evokes confidence, lends legitimacy, and enhances the lawyer's personal brand. (For an example of what happens when a firm's brand collapses, watch the unhappy tale unfolding at Heller Ehrman).

That, at least, has been the traditional way things have gone. More recently, though, in the age of the lateral hire, we've seen firms acquire lawyers in the hopes that the lawyer's personal brand and reputation will reinforce or even enhance the firm's brand.

We've also seen the rise of lawyer free agency — rapid lateral movement among firms by lawyers at all career stages, such that it gets harder for firms to base their brands on individual lawyers or practice groups. Most importantly, the combination of associate fungibility, hard economic times and partners' determination to protect PEP at all costs has resulted in recurring waves of lawyer layoffs, making an indelible impression on lawyers that loyalty to employees is not a law firm characteristic.

These and other phenomena mark the rising importance and influence over the last decade of the lawyer's personal brand, something that was once foreign to all but a very few outstanding practitioners. Individual lawyers have less need to be associated with a law firm's brand, at least beyond the first couple of years of practice, because they have become more adept at fashioning their own reputations and taking charge of their own careers.

Now, add two more recent phenomena to that mix: the arrival of millennial lawyers, who don't stay in any one place very long and place high importance of personal definition and fulfillment; and the growth of the Web a personal brand platform through the use of blogs, podcasts, LinkedIn, Twitter and other forms of self-promotion and brand definition. The result, I think, is a fundamental power shift away from the collective firm brand and towards the individual lawyer brand.

Firms are going to have to cope with this, and in a longer essay later this month, I'll go into some detail on that point. But for you, the individual lawyer, this means that starting now, you have both the responsibility and the requirement to take full control of your career and your personal brand. You need to assume that no other entity will make a long-term investment in your own success, and that you have to forge an identity and skill set independent of any firm or other legal employer.

If you need a model for that task, look at sole practitioners: this is the life they lead. From day one of their practice, they couldn't content themselves with simply knowing the law and waiting for the cases to come up the elevator shaft. They had to learn everything about attracting clients, which meant marketing themselves, defining their niches, building their reputation, writing and speaking where clients could see them, and making client service the #1 priority. It also meant understanding the finances of a legal business: overhead costs, lease payments, cost identification, profitability calculations, accounts receivable, bill collection, tax and pension liabilities, and much more.

As all but a few law firm brands decline in importance, and as clients increasingly buy legal services based on the lawyer, not the firm, you're going to have to add "full-time brand management" to your list of duties and skills. You have to be prominent and persuasive when showing up on Google searches, fully capable of running a small business, and able to keep one strategic eye on the short- and long-term evolution of your markets. Because you won't be able to rely on law firms to do that kind of thing or share some of their brand power with you.From now on, we all need to take charge of our brands and our careers.

From now on, we are all solos.

(Cross-posted from Law21, at Steve Matthews' request.)

Okay, so here we are, in the dog days of summer. Canadian readers have just come off the August long weekend, and most probably wouldn’t object if this three-day holiday were suddenly extended to a full week by executive fiat. But no matter where you are (okay, not Australia), you’ve had your fill of daytime heat, evening thunderstorms and the like. You’re ready for a splash of something different.

And here it is: welcome to the first annual Legal Profession Blue-Sky Challenge! It’s time to engage in some serious blue-sky brainstorming, to think way outside the box, to engage bold new paradigms, and to run through numerous clichés that all basically mean: let’s try to think of the next big thing, or the next thousand little things, poised to break out in the legal marketplace.

Innovation, frustratingly near-dormant for so long in the law, is practically running rampant these days. Lawyers around the world are talking about it, law firms and legal companies are winning awards for it, and clients are choosing law firms that incorporate it into their marketing and service delivery. (And outside the law, innovation is hitting warp speed — check out this mind-blowing video from Nokia.) The new legal profession that we’ve spent years been hoping for is finally starting to unfold, but we’ve only scratched the surface yet.

So let’s scratch it some more. Slaw readers, cast aside your presuppositions and conventional wisdom about the legal profession and propose something new, even radical — pretend the legal profession doesn’t exist in its current form and you need to invent it. What would you do? What could realistically be done — realistic in the sense that it’s reasonably possible through the evolution and application of technology and culture? Pick a time as far or as near in the future as you like and sketch out a feature of the practice or profession that would be much different — and with any luck, better — than what we have now.

Here are five to get you started, listed in ascending order of their improbability (odds included, but no wagers accepted). I make no claims as to whether some of these would be good or bad — and really, good or bad from whose perspective? — but if they get us thinking about what we should try to accomplish — and what we should try to avoid — all the better.

Here we go:

1. Wiki law publishing. Suppose the ten most knowledgeable people in a given area of the law — lawyers, judges, law professors — got together to write the definitive statement of that law. And suppose they did it on a wiki, to which each member could contribute anytime they wanted and could choose the areas they wanted to address, with outbound links to the key cases in the area. And suppose they charged a small amount to anyone who wanted to access the wiki (pay-per-use or annual subscription), and used the proceeds to pay students to keep the site constantly updated? Would we still have a legal publishing industry after that?
Odds: 25 to 1.

2. Specialized law schools. It’s a specialized profession; why wouldn’t we have specialized law schools? If you know you want to practise family law, attend a Family Law School where the core courses are taught with family examples and every elective deals with resolving marital and custody problems. Clients would be all over this sort of thing — if you’re a worldwide technology firm, wouldn’t you love to meet graduates from the MIT School of Law? If you don’t yet know what kind of lawyer you want to be, you can still go to a general-interest law school — but you’ll be at a competitive disadvantage if you eventually want to focus in any area where specialized law degrees are available, and there’ll be more than a few.
Odds: 100-1.

3. No more law firms. Most law firms of any size generate much of their revenue by providing legal knowledge (rapidly becoming commoditized) and business processes (rapidly being outsourced and/or automated). When these two areas dry up in terms of profitability, lawyers are left to sell only judgment, advocacy and advisory services — which should be very profitable indeed. But with so much of the bulk work no longer employing so many associates, the rationale for the traditional law firm will be gone. Moreover, telecommuting and online collaboration dispense with the need for expensive centralized offices. Blog-and-wiki branding increase the power of individual branding at the expense of firm brands. An entire Millennial generation of lawyers resists the whole idea of fixed office face time. Conflicts of interest rules make it increasingly difficult to maintain formal partnerships. The result: while lawyers have always chosen to share practices with whomever suited their interests, clients will now have that power, to assemble the lawyers they want, based on their preferences and observations, from among a profession of solos for the tasks they wish to have done. The traditional law firm becomes obsolete.
Odds: 500 to 1.

4. Client law faculties. Are you ready for the Google School of Law? For a Toyota Law Faculty? Royal Dutch Shell Law School? Tata Law? Universities are already turning more and more frequently to the private sector for funding and endowments; eventually, these corporations might just say to themselves, “Why are we paying good money for a training system over which we have no control?” If applied to law schools, this could see the specialist law school taken to its logical conclusion: a law school with the imprimatur of a major multinational. Many of the “students” would be current employees whose qualifications require a legal upgrade, but the school would also be open to outside students who want the benefit of the company’s training and brand. Considering corporations will eventually own and operate law firms too, this would be the logical extension of that development.
Odds: 5,000 to 1

5. Private court system. I don’t mean ADR firms staffed by retired judges — I mean an actual parallel court system operated entirely within the private sector, whose rulings have equivalent legal force to the public ones. Parties pay a fixed fee upfront to cover standard trials, and share equally the costs of overruns — retaining staff lawyers costs you extra, or you can bear the cost of your own lawyer. Judges are hired, not appointed, and their pay is based in part on the efficiency with which the case is disposed and the reviews given by each of the parties. Public-court rulings are relied upon for precedents in private-court cases, and eventually, the reverse is true as well. The private court is regulated the same as any other self-governing private body that provides key quasi-public services, like universities, airport authorities, and, oh hey, law societies and state bars.
Odds: 10,000 to 1.

Okay, now it’s your turn to take up the Blue Sky Challenge. Doesn’t matter how modest or how outlandish — show us what you’ve got. Who’s first?

The benefits that knowledge management can deliver to a law firm are well documented. They include reducing wasteful duplication, increasing the firm’s intellectual capital, enhancing the firm’s ability to anticipate and meet client needs, improving the firm’s recruitment and retention arsenal, and more besides. Firms that get KM right, like Morrison & Foerster, have every reason to boast about their success.

But the obstacles to successfully implementing a KM program in law firms are equally well-known. They include:

• Hoarding: lawyers who believe their livelihoods depend on the knowledge tucked away in their files, both print and neural, are intrinsically resistant to sharing it.
• Hedging: with lateral movement epidemic, even practitioners open to KM are reluctant to share knowledge with colleagues who could be competitors tomorrow.
• Billing: when KM activities aren’t treated as billable or equivalent time, lawyers aren’t motivated to take the time and effort to add to the firm’s knowledge base.
• Prioritizing: even if all these challenges are met, lawyers are extremely busy and will often postpone KM duties in favour of more pressing matters – and there are always more pressing matters in a law firm.

None of this is new. But I’ve begun to think that factors like these aren’t just unfortunate aberrations in law firms’ culture that make KM difficult to pull off. I think these might actually be fundamental elements of most modern law firms – part of their DNA – that can’t be overcome any more than you can overcome your own genetic predispositions. If that is so, then that bodes poorly for the long-term success of most law firm KM efforts.

Law firm knowledge management, I’ve come to believe, can only succeed if the people who supply the knowledge are genuinely and enthusiastically motivated to do so. If they see a clear value proposition for themselves, and if they really want to contribute to and build a knowledge center greater than their own, and if they believe there are checks and balances to ensure fairness in giving and receiving knowledge, and if they believe sincerely in the greater good of the firm — then I think KM will flourish.

My sense, though, is that most law firms don’t exactly encourage these characteristics in their culture. With older lawyers continuing to hoard work and neglect mentoring, with associates and partners constantly leaving for greener pastures, with compensation and promotion systems handcuffed to hourly billings, and with all the firm’s efforts bent towards higher profits per partner — well, is it any surprise that KM efforts often find little soil in which to blossom?

KM is fundamentally about contributing to the greater good of the whole; many law firms, I think we can safely say, are not.

Law firms, then, in theory, are perfect places for knowledge management to work. Law firms, in practice, are far from it. That’s why I think the next iteration of KM initiatives in the law – KM 2.0, if you will – won’t involve law firms at all. It will involve individual lawyers coming together to share knowledge on a voluntary, selective basis. It will be private knowledge management.

Private KM teams
Imagine this: a small group of lawyers (as few as five, up to around 20, ideally about 10), each potentially in a different type of environment — a large law firm, a small boutique, a sole practice, an in-house department, a law faculty, whatever. They might all be in different jurisdictions or even different countries. They might not have worked together before, or even know each other that well; some might have never met in person.

But what they all share in common is a knowledge of and profound interest in the same legal subject area — pharmaceutical class actions, say, or business process patents, or asset securitization, or child custody proceedings in Oregon, or small-claims court cases in Nova Scotia, or wealth management in New South Wales, or any of the law’s thousands upon thousands of sub-specialties.

What they want is a way to meet other lawyers with the same interests and complementary knowledge in order to enhance their own expertise through relationships of mutual trust and gain. The Internet generally, and collaboration technology in particular, enables just that.

These lawyers could voluntarily enter into a collaborative knowledge assembly project — private KM teams — with as many or as few other lawyers as they like. All they need is a secure extranet and a simple yet enforceable agreement for giving and receiving knowledge. Each member contributes what he or she knows about the chosen area, and each extracts what he or she needs from the resulting knowledge collective.

Think of it as a private 24/7 CLE program on your chosen subject field, with panelists and other attendees personally chosen by you. Or think of it as subscribing to a specialized online multimedia trade journal where you’ve approved all the contributors (and you’re one yourself). It’d be a novel way for you to gain many of the theoretical KM advantages of a law firm without many of the practical downsides of same.

Here’s what I envision as the four key characteristics of private knowledge management teams for lawyers:

1. The lawyers themselves. They might be current or former colleagues, law school classmates, or friends of friends. Or they might not have close personal histories at all, but would have encountered one another through professional networking methods old (associations, CLE events), new (blogs, LinkedIn), and both (personal recommendations). Each lawyer knows enough about the others’ expertise and reliability to make a commitment to the group’s purpose, membership and success.
2. A secure platform. This could be simply an extranet, which are so plentiful and affordable these days as to be almost ubiquitous, or an online project management platform like SharePoint or Basecamp that can serve as a KM portal. Each member would have an exclusive password to be shared with no one else.
3. Acceptable forms of contribution. Everyone thinks and works differently, and a private KM project would recognize this by being open to numerous types of knowledge: formal memos, written articles, bullet-point notes, dictated messages (maybe through Jott), podcasts, videos, links, caselaw updates (maybe through RSS feeds from a case law site), judges’ tendencies, mediators’ inclinations, FAQs, etc.
4. The rules of the road. Private KM teams like these would require a concise set of membership rules, with which all members must comply. They might include a minimum number or quantity of contributions per month, agreement as to the types of acceptable contributions, strictures against sharing access to anyone outside the group, and procedures for resolving disputes, adding or dropping members, and most importantly, enforcing the rules.

These points are only the basic building blocks — the format eventually adopted by the group’s members would be more detailed and would vary widely according to members’ consensus preference. Lawyers, as we know, love rules and procedures, so KM team members would have to make great efforts not to lawyer the thing to death. But difficult issues, such as access to the information upon the group’s dissolution, should certainly be figured out in advance.

Private KM teams would obviously be fairly radical (although not unprecedented — we all remember law school study groups, right?), and I can already envision several criticisms of this kind of scheme. Here are a few:

• Trust issues: it’s asking too much for lawyers to trust others (or even themselves) not to allow access to friends or colleagues, or otherwise to export the team’s knowledge base for the members’ own ends. But this criticism is equally valid in the law firm context, and says more about lawyer culture than about KM practice. Moreover, most law firm lawyers don’t get to choose all their partners and associates, whereas private KM team members would be personally selected and vetted by each member before anyone joins; the trust bar would actually be set higher.
• Client information: one of the most valuable aspects of a law firm KM system is that information on clients can be shared, including work in progress, past cases, internal documentation, personal histories, etc. To volunteer this type of information in a private KM context would betray client confidences and violate ethical standards. That’s a fair point, and client insight is one of the areas in which law firm KM systems would still hold an advantage. But I don’t see any restriction on contributing general industry knowledge and trends to the private KM team, so long as this information is generally available outside the client context.
• Divided loyalties: won’t law firms resent their partners sharing knowledge with their private KM team members, in addition to (or even instead of) their own firm? Shouldn’t the lawyer’s loyalties be first and only to the improvement of the firm’s own knowledge base? Perhaps, but it seems to me that law firms already sanction and even encourage their lawyers to give away their knowledge outside the firm, speaking at CLEs, writing articles or blogs, or authoring books. Arguably, the firm receives a profile boost from such public appearances that wouldn’t apply within a private team environment; but that kind of return to the firm has a limited value, and its absence isn’t sufficient reason to forbid a lawyer from privately improving his or her knowledge base — which the firm would likely not be able to do anyway.

I recognize that this is a controversial idea, and what I’ve laid out here is only an outline that can and should be improved upon (comments are welcome). Nor am I suggesting that private KM teams would replace law firm KM efforts — not for a while, at any rate. But I do think that private KM teams could, right now, offer a powerful complementary way for lawyers to upgrade their own knowledge and share what they already know with others.

The key lies in the fact that the lawyer’s participation would be entirely of his or her own choosing and on his or her terms. Whereas many lawyers who contribute to a law firm knowledge base do so by obligation or institutional fiat, lawyers who join private KM teams could customize the experience to their own liking. The niched subject matter, the modes and frequency of contribution, the other members, and the rules of the game would all be tailored to their own needs and preferences. And because of that, participants would approach the process with the kind of enthusiasm and goodwill that many law firm KM directors could only wish for.

]]> http://www.slaw.ca/2008/06/15/private-knowledge-management-teams/feed/ 0 http://www.slaw.ca/2008/04/06/a-major-league-approach-to-new-lawyer-recruitment/ http://www.slaw.ca/2008/04/06/a-major-league-approach-to-new-lawyer-recruitment/#comments Sun, 06 Apr 2008 13:52:05 +0000 Jordan Furlong http://www.slaw.ca/2008/04/06/a-major-league-approach-to-new-lawyer-recruitment/


Now that baseball season is (finally) with us again, I’d like you to meet Kevin Ahrens. He’s not a lawyer, judge or law professor – he’s a 19-year-old from Houston who has foregone college to start a career as a professional baseball player. Last June, the Toronto Blue Jays chose him with their first-round pick in major-league baseball’s annual amateur draft (he was the 16th overall selection).

Kevin plays shortstop and has been a very productive hitter throughout his amateur career, which consists of three all-district and two all-state selections during his time at high school. He stands 6'2", . . . [more]

]]>


Now that baseball season is (finally) with us again, I’d like you to meet Kevin Ahrens. He’s not a lawyer, judge or law professor – he’s a 19-year-old from Houston who has foregone college to start a career as a professional baseball player. Last June, the Toronto Blue Jays chose him with their first-round pick in major-league baseball’s annual amateur draft (he was the 16th overall selection).

Kevin plays shortstop and has been a very productive hitter throughout his amateur career, which consists of three all-district and two all-state selections during his time at high school. He stands 6'2", weighs 190 pounds, and bats from both sides of the plate. As a hitter, he has remarkably quick hands that give him tremendous plate coverage and figure to provide solid home-run power in a few years’ time. Defensively, he’s okay at shortstop, but his size and skills probably portend a move to third base in the future.

I don’t know Kevin – never met him, never will – but I already know all this information just from reading any number of websites that provided me these insights for free. Rest assured, though, that most if not all 30 major-league baseball teams collected much more information about him — data they kept to themselves, along with the methodologies they used to evaluate him.

These 30 teams paid scouts to fly to the Houston area and watch Kevin play in various local games and tournaments. They videotaped him batting and playing defence, and distributed the videos organization-wide. They ran his high-school statistics through any number of formulae. They may even have interviewed his coaches, teachers, teammates or family members.

In short, 30 organizations each spent real money to learn everything they needed to know about one teenager whom only one of them would eventually draft and pay a signing bonus of $1.44 million. Major-league teams do this for hundreds upon hundreds of young men across North America, and take similar measures to evaluate other young men around the world.

Now consider this: Kevin might never be a regular in the major leagues, let alone become a star. He might peak in a few years’ time as a career bush-leaguer, hang up his spikes at 26, and represent a huge wasted opportunity. As a Blue Jays fan, I sure hope he doesn’t (and I’m confident he won’t), but even first-round draft picks are risky, and for players drafted lower down the list, the odds are against them from day one. But major-league ballclubs still spend all this time and money — because if they don’t, they know they’ll immediately be at a huge talent disadvantage relative to their competitors.

Now, meet Jason Singleton. Jason’s a second-year law student at the University of Alberta. (Actually, he’s not; I just made him up.) Jason scored several A’s and B-pluses in his law school courses – half of which were graded on a 100% final exam and none of which taught him much about the practice of law. Before law school, Jason completed an undergraduate degree in business at Simon Fraser University, where he was a low-A student. He’s interested in corporate law and really enjoyed his Business Law course at U of A.

Jason is 25, personable, smiles easily, and is eager to impress. In his spare time, he enjoys rock climbing and playing Ultimate. He looks good in a suit, but has questionable taste in ties; his shoes are a little scuffed. He answers standard interview questions well, talking a little too long but eventually getting most of his points in. He says he’s not afraid of working hard. He didn’t get drunk at the cocktail party and he handled himself well at the dinner.

This summary reflects the information used by the law firm that just gave Jason an articling position with a strong likelihood of hireback. No scouting trips, no interviews with family and friends, no statistical analyses – Jason had good marks, is interested in business, and was liked by five of the six partners and associates who interviewed him.

On such slim evidence do law firms across North America make their own draft-day decisions every year, and on such decisions are the much-hyped “talent wars” being fought. Compared to sophisticated organizations in other industries, law firms’ talent evaluation and intake systems come across as remarkably loose, informal, even primitive.

If baseball teams recruited potential draftees the way law firms assess law students, they wouldn’t look much beyond the player’s batting average, home run and run-batted-in totals for hitters, and wins, losses and earned-run average for pitchers. Even the most dyed-in-the-wool traditionalist scouting director would laugh you out of the room if you suggested drafting a player on such un-contextualized and potentially misleading evidence. But most law firms are “drafting” new lawyers on their batting averages and win totals, and have been doing so for decades now.

The largest law firms in Canada and the U.S. spend a lot of time, money and effort to compete for the “top law students,” which they define narrowly as those who got the best marks at the top-rated schools. These are the very same schools, mind you, that lawyers consistently complain don’t actually teach students useful information about being a lawyer. Firms invariably speak contemptuously about law school courses, but they still rely heavily on the grades awarded in those same courses every year at hiring time.

It seems to me that the current recruiting process for new lawyers gives firms as much chance of selecting good lawyers who will provide great client service as they do of selecting underachievers who won’t add value to the firm. Law firms that can, but don’t, develop sharp, sophisticated systems for evaluating talent are putting a potentially huge competitive advantage on hold.

To be fair, this is not entirely the firms’ fault. Law societies set up a lot of hoops around the new lawyer recruiting process, through which both firms and students must jump. There are reasons why they do so, including streamlining the process and trying to make the playing field as even as possible, but one of the effects of these processes is to create numerous barriers to innovation in new lawyer recruitment.

American Lawyer magazine looked at the issue of new lawyer recruitment last summer, in an article titled Is This Any Way To Recruit Associates? It concluded that firms are missing out on talent acquisition opportunities and competitive advantages by clinging to traditional ways of evaluating law students, especially regarding the sacred cow of grades:

[A]cademic performance is not necessarily a proxy for work performance. In 2000 Kansas City, Mo.-based Blackwell Sanders Peper Martin did a study to see how well grades predicted professional success. The firm compared each of its associates’ grades, class rank, and school rank to their evaluations and accomplishments at the firm. Blackwell found that neither law school rank nor class rank could determine who would become a standout lawyer.

Partly in response to this finding, Blackwell revamped its approach to associate recruitment and advancement. While academics are important, says Blackwell’s recruitment partner, Peter Sloan, they are not sufficient. The firm looks for exceptional analytical and communication skills by reviewing writing samples, interviewing references and meeting with candidates.

The article contains a number of examples of law firms that have moved past the simple combination of “good grades” and “good presentation” that drive so many hiring decisions in this industry. London-based Linklaters, which administers a harrowing aptitude test, and San Francisco-based Orrick Harrington, which trains its lawyers in behavioural interviewing, are two outstanding examples.

The funny thing is, law firms do a better assessment job when considering potential lateral hires. They speak with lawyers who know the potential recruit personally or are familiar with her work. They get detailed reports on her skills, leadership abilities, successful deals, court victories, and team-playing nature. They learn which clients the lawyer is on good terms with and which she has a decent chance of bringing with her to the new firm. And they don’t even think of recruiting her unless her specialty fits in with what the firm needs.

In short, firms adopt a more sophisticated approach to the lateral recruitment process, closer to what baseball clubs go through when scouting amateur (or indeed, established professional) talent. Yet the same considerations don’t seem to apply to new lawyers who, while obviously not in possession of so thorough a track record as experienced laterals, are certainly not tabula rasas onto which the firm can write what it wishes. Firms can and should apply the same sorts of effort and techniques to new lawyer hires.

If I were starting up a law firm today, and wanted to hire new graduates whom I felt certain would be effective, reliable and profitable, law school grades would be a minor consideration. I’d be more interested in learning the law school equivalent of all the things I would seek to find out about established lateral recruits. To cite some examples, I’d look more closely at:

• The new lawyer’s performance in clinic-type courses, rated subjectively, including talks with professors and clinic workers.
• Evidence of her leadership skills, both in class and in extracurricular activities.
• Her project management skills: did she set and achieve goals in some curricular or extracurricular area? Did she get the job done on time and over expectations?
• Her contacts within the legal industry, and even more significantly, among potential client groups, especially in areas such as new media or high-tech startups where she’s likely to have friends and colleagues.
• Perhaps most important, how did she relate to other people — particularly outside the law school environment? It’s easy for lawyers to get along with other lawyers; how will she do with clients?

As for grades, so long as there some vowels on the transcript, I’d feel pretty confident that the student had the intellectual chops. There are no dummies in law school.

I have a feeling that we’re set to see some real innovation in this direction – talent is becoming too scarce and too important for firms to stick with business as usual. Law firms that start taking this approach are going to reap tremendous benefits down the road after hiring the best talent, the most promising of tomorrow’s lawyers, through sophisticated scouting techniques.

Meanwhile, firms that continue to hire articling students and new lawyers the way they always have — judging them on grades, cursory interviews, and cocktail party performances — are going to fall further and further behind innovative competitors that don’t look for good students, but for good lawyers.

Eventually, just like in baseball and other major-league industries, everyone will have to take a sophisticated, high-caliber approach to identifying and recruiting talent. The risk of getting buried in last place will just be too high.

]]> http://www.slaw.ca/2008/04/06/a-major-league-approach-to-new-lawyer-recruitment/feed/ 7 http://www.slaw.ca/2008/02/01/the-inconvenient-truth-about-articling/ http://www.slaw.ca/2008/02/01/the-inconvenient-truth-about-articling/#comments Fri, 01 Feb 2008 15:07:25 +0000 Jordan Furlong http://www.slaw.ca/2008/02/01/the-inconvenient-truth-about-articling/


Last week, the Law Society of Upper Canada’s Licensing and Accreditation task force delivered its Interim Report To Convocation [PDF] on the province’s bar admission scheme. I think it’s a groundbreaking report, brimming with indisputable facts and uncomfortable choices about the state of the current system and the urgent need to reform it. Other reports have come and gone, but I think this one will leave its mark.

The main report is 44 pages long, followed by an additional 152 pages spread out over 10 appendices. This is what the report, to summarize briefly, says:

1. The task force recommends . . . [more]
]]>


Last week, the Law Society of Upper Canada’s Licensing and Accreditation task force delivered its Interim Report To Convocation [PDF] on the province’s bar admission scheme. I think it’s a groundbreaking report, brimming with indisputable facts and uncomfortable choices about the state of the current system and the urgent need to reform it. Other reports have come and gone, but I think this one will leave its mark.

The main report is 44 pages long, followed by an additional 152 pages spread out over 10 appendices. This is what the report, to summarize briefly, says:

1. The task force recommends the abolition of the current Skills and Professional Responsibility Program from the bar admission process in Ontario.

2. The task force offers three alternatives to the current articling process by which lawyers ostensibly receive sufficient practical training to enter the practice of law. These are:

(a) make it extremely clear to all current and prospective law students that the law society does not guarantee articling placements, and accordingly cannot guarantee that a law graduate can become a practising lawyer.

(b) set up or certify a parallel Practical Legal Training Course that provides law graduates who could not obtain articles the chance to earn an equivalent certification in practical legal skills training.

(c) Abolish articling outright.

The task force makes no recommendation concerning these three options — it offers pros and cons of each — but it makes quite clear that the status quo is not sustainable

The task force lists a series of external factors that have driven it to these conclusions, including a rapidly building wave of new law graduates on the horizon, a new emphasis on skills development in law school curricula, the dwindling willingness of lawyers and law firms to participate in the process, and the law society’s own practical constraints. As a snapshot of a profession on the brink of change, you could hardly ask for better.

I decided to put together a running commentary on the task force’s report. The first section, which focuses on the Skills and Professional Development Program, I addressed yesterday on my own blog. Today, I’d like to focus on the second and higher-profile section of the report dealing with the articling process. This won’t be a blow-by-blow account of the report, but I do recommend you read the whole thing. This article will simply touch on some of what I regard as the more relevant and noteworthy paragraphs in an altogether remarkable document. Here we go.

83. The Law Society’s articling program has been an established part of the licensing process for decades. It reflects the transition from the earlier legal education system that was predominantly an apprenticeship system to the university model that replaced it. It has provided students-at-law with an opportunity to experience and learn about the practice of law in a relatively risk free context of supervised law firm placement. In the Law Society’s current licensing process the articling term is 10 months. Candidates may begin articling at any time after the end of the skills and professional responsibility program.

84. Unlike the medical model of education, however, articling is not interwoven into the framework of legal education. There is little direct link between the education candidates receive during law school and the “clinical” component that is articles. The profession has long viewed the articling program as a bridge between the two worlds of education and practice.

Just setting the stage here.

90. [I]ncreased law school enrolments, possible establishment of new law schools, increasing numbers of internationally trained candidates [are] problematic for the articling program…. [I]n a system that appears able to place approximately 1,300 articling students in a stable economy, it is likely that the number of candidates seeking articles in 2009 could be approximately 1,730. This does not reflect additional candidates that would come from any new law schools.

To put that in its proper perspective: in 2001, the number of new applicants for articling positions was just 1,247. The system is being overwhelmed.

97. To assist its consideration of the issues surrounding the articling program, the task force has identified what it believes to be the goals of the program:

a. To provide law school graduates with exposure to certain defined practice skills in a professional environment in a consistent manner across articling positions.
b. To provide law school graduates with exposure to professional responsibility and ethical issues in a professional environment, in a consistent manner across positions.
c. To provide law school graduates with the opportunity to evaluate practice environments for the purposes of subsequent professional life.
d. To fill law school gaps in law students’ development as professionals.
e. To facilitate the transition to sole or small firm practice.

If you didn’t see “hone their QuickLaw skills noting up cases,” “undertake due diligence on reams of paper in a drawn-out discovery process” or “serve a Statement of Claim on an elusive defendant” on that list, it’s probably because the articling process ostensibly should involve these sorts of things only occasionally.

Articling is apprenticing: learning by watching, listening, asking and, most importantly, doing. It’s a superb notion in the legal profession and, in the days when it was working (not within my living memory), it helped cement the law’s reputation for mentoring, collegiality, and generosity of time and spirit towards newcomers.

Taking on an apprentice is a serious task, because you’re assuming responsibility for helping the new recruit learn to do what you do. Some articling principals take the apprenticing responsibility seriously, and I know a number of lawyers who testify enthusiastically about the tremendous training they received during their articling year. But many articling principals don’t, or can’t, do the same.

I don’t think it’s because we’ve become nastier people. I think it’s primarily because articling, in the form laid out above, simply doesn’t fit the business model most law firms use. Law firms – especially the large urban firms that offer most of the articling positions in Ontario – are not genial partnerships where new arrivals are tutored and mentored. They are businesses, they operate in an increasingly rapacious environment, and their compensation and promotion systems don’t reward the development of younger talent.

Most law firms, I think it’s fair to say, don’t even train their associates and junior partners especially well, let alone newly graduated quasi-lawyers. Now, with clients increasingly demanding of higher-value performance and partners equally demanding of profit-per-partner growth, mentoring and training has become largely an optional extra. In large law firms, new lawyers are worker bees, not apprentices. That simple fact alone makes most of the goals set out in Paragraph 97 unattainable in the current environment.

102. The task force has identified three possible ways to address the issues the articling program is facing. None of the options is new. The 1972 McKinnon Report addressed some of them. Other jurisdictions, particularly in the United Kingdom and Australia have adopted some of them. Perhaps none of them is without criticism. But the task force is convinced that something must be done beyond exhorting the Law Society to try harder to fund more placements and improve quality. Something more fundamental must be done.

This is, if I may say, an unusually blunt and honest admission of a couple of salient facts: (a) the articling system is not working well (and figures to work less in the near future, given the reasons summarized in paragraph 90) and must be replaced, and (b) each of the suggested options has its flaws too.

I highlight this paragraph because we need to accept that whatever solution the law society eventually accepts is going to be imperfect. The hope is that it will be less imperfect than what we have now. Not exactly a stirring vision, but a dose of reality is always a welcome tonic in this profession.

103. There are three options on which the task force is seeking comment and advice:
a. Continue the program, but make it clear that the Law Society makes no guarantees that candidates will find employment.

I’ll take each of three suggested alternatives in turn. As the report goes on to explain, this option is essentially the status quo, but delivered openly and honestly rather than with reluctance and embarrassment. The truth is that the law society can’t guarantee articling positions now, although it does twist itself in knots trying to place students through cajoling, wheedling and other persuasive methods.

As the task force observes, the articling contract is between a student and a principal; the law society is an interested bystander, but one without any power or standing to intervene. This first option would at least allow the LSUC to address the situation plainly, lose its guilt complex, and abandon any pretence that its mandate of governing the profession in the public interest includes job-hunting services for new graduates.

The task force goes on to note a related stark reality: among those students who don’t obtain articles, certain groups are overrepresented, including aboriginal students, those with disabilities, and francophones, not to mention internationally trained students. If the law society chooses to step back from its current role of equity advocate in articling, “the profession may be increasingly uncomfortable with the consequences,” says the report. Nobody has a good answer to this question yet, but one will have to be found. Still, there’s one more thing that should be noted here in passing.

There are a lot of possible reasons why a newly graduated lawyer can’t find articles. He might, as noted above, be a victim of overt or covert discrimination. She might have difficulties with the standard interview process, upon which so much of the subjective hiring decision rides. He might simply be unlucky — I have a friend who’s now a very successful litigator for a Toronto boutique who was shut out of the articling process at the time. But there is another group that is heavily represented among those who don’t get articles: those who aren’t really all that qualified.

Every graduating class has a bottom X percent who performed poorly compared to their classmates. Their law degree is valid, but their transcript contains a lot of consonants and no vowels. Yes, some very good lawyers didn’t do well in the classroom setting, for a variety of reasons. But as a general rule, if your academic record is poor compared to your compatriots, you won’t get a lot of job offers. That’s the marketplace at work, and it has never been more competitive than it is today.

If the law society chooses this recommendation — and for my money, I think that’s the likeliest outcome — we might be able to more easily accept that one of the things the articling process does is separate the wheat from the chaff, however harsh that might sound. The sooner that reality is discussed openly in the profession, and the quicker it filters back through the law schools and into the pre-law community, the better for all concerned. A law degree is not a license to practice law.

b. Accept that if there is to be an apprenticeship requirement, the Law Society should take responsibility for all candidates having an opportunity to qualify; develop an alternative stream for those unable to find a placement.

This is the most interesting option of the three, and if the law society is feeling sufficiently ambitious, might actually be the one I favour most. It’s based on an Australian model called a Practical Legal Training Course (PLTC), an alternative to articling for those who can’t land a clerkship with an employer.

In Victoria, for instance, the PLTC runs 31 weeks, 9 to 5 weekdays, and provides students with the requisite knowledge, skills and ethics training that they would (supposedly) receive were they articling. An added bonus is that the course can be taken online, a huge benefit for students in remote location or with families or jobs. PLTC graduates are immediately ready to practise law. Sounds pretty good, doesn’t it?

Well, you can already guess the drawbacks. Numero uno, from the student’s point of view, is that you pay to take the PLTC, whereas you get paid to article. That is a not insignificant obstacle, especially as the cost of a legal education continues to appreciate in this country.

Another problem is that even an unsuccessful articling stint provides students with contacts, networks, potential mentors — “a foot in the door,” as the task force puts it. The PLTC introduces you to full-time instructors and other unsuccessful articling applicants, but no one who can eventually help get you a job.

A third issue is that, as the task force readily admits, the Law Society of Upper Canada is in no position to set up a PLTC, financially or otherwise: this would have to be a private-sector solution. I actually think this would a tremendous opportunity for an innovative law school or bar association, but innovation has never been especially overabundant in our profession.

These three objections alone might well be enough to scuttle the plan, but they don’t touch on the most significant problem: a PLTC certificate would be the equivalent of a scarlet letter for future employers. It would create a permanent two-tier system of new lawyers: those who could get articles and those who couldn’t, and the latter group will always be regarded differently and even suspiciously at the interview table (not to mention, of course, clients).

Morale among PLTC enrollees would almost certainly be low — high-achieving law students relegated to the professional equivalent of summer school would be deeply discouraged, and many might opt to abandon law altogether rather than go through what could feel like a humiliating experience.

The task force makes encouraging noises about actions the profession’s leadership could take to buttress the PLTC’s reputation, and the Australian example shows that it can work. But there’s also an old saying about a sow’s ear and a silk purse, and I expect that this country’s legal culture would not be able to transcend that attitude.

It’s too bad, because there’s one thing about this program I really like — it might be the best way to train new small-firm lawyers and solos. The task force notes elsewhere in the report that more than 70% of all Ontario articles take place in the Greater Toronto Area, most of them in large firms.

But 32% of all lawyers in Canada are in solo practice, with an additional 33% in firms of 2-10 lawyers. Only 18% of Canadian lawyers practise in firms of 51 or more lawyers. The articling system, by default, is supported by Canada’s largest firms, yet the legal and cultural training they dispense to their students will be directly relevant only to a small percentage of lawyers called to the bar. If you start off on Bay Street and end up in Smiths Falls, your articling experience will likely have added next to nothing to your ability to sustain a good practice.

One of the goals of the articling program, as set out by the task force above, is to “facilitate the transition to sole or small firm practice.” You’d be hard-pressed to argue successfully that the typical articling experience in Ontario does anything of the sort. But a PLTC might just be the ticket. If the course were set up with an emphasis on helping new lawyers to open their own practices or operate in very small partnerships, it could provide training on precisely those things that solos need to know and that big firms don’t teach during articles: financial management, overhead costs, marketing, business development, client relations, and much more.

The PLTC could become a favoured option for new graduates with an entrepreneurial bent who don’t want the big-firm life, but do want to be part of the two-thirds of all lawyers in solo or small practices. Yes, it will cost them more money on top of their law school tuition, but they intend to be businesspeople, and there are numerous large institutions falling over each other to extend credit to small business. The ancillary benefits — helping achieve the law society’s stated aims to assist lawyers and promote access to justice outside urban centers, among others — are also clear.

And who knows? If the PLTC is truly successful in delivering top-notch training, then even some students who are offered articling assignments might nonetheless choose to attend the PLTC, to give them a head start on learning to be a successful lawyer. And if that ever happened, those law firms still offering articling positions might be motivated to upgrade the quality of training and mentoring available to students. A little competition in the effort to attract and train the best new lawyers could be just what this profession needs.

The PLTC is far from a perfect solution, but if the right private-sector partners could be found — and if, as the task force observes, “a significant shift [occurs] in the way in which the profession and the Law Society approaches and thinks about practical training” — I think it would really be worth a shot.

c. Abolish the articling requirement.

And here we are at Def Con 1. The task force notes the irony that while Ontario contemplates abolishing articles, many American states look longingly at the Commonwealth articling system as a better way to transition new graduates into the practice of law (though none has yet followed our lead in this regard).

The report doesn’t have much to say about this option, beyond observing that the ramifications for such a move would include public doubts about the competence of new lawyers and renewed scrutiny of the law’s self-governing status. That alone would probably be enough to make Convocation turn and walk rapidly in the opposite direction, even though either of those two outcomes could feasibly materialize if the articling system goes unreformed.

I don’t get the feeling the task force much likes the idea, and I can’t see the law society taking such a bold and irreversible step — not yet, anyway. But, just as the Australian examples shows the PLTC system can work, so does the American example demonstrate that, with some modifications, this approach could work too.

The enormity of the change should cause us to approach it with caution, but we should not dismiss it out of hand without talking it through first. I will say this, though: abolishing the articling system would, within the space of five to ten years at the most, completely change the character of Canada’s law schools, like it or not.

139. In the task force’s view, further limiting numbers who may gain access to the profession is not a reasonable or indeed viable option, for myriad reasons…

One last thing before signing off: the task force adds a little obiter dicta about “numbers in the profession,” which is a nice way of referring to those lawyers who are already in the lifeboat turning around and saying “No more! Cast off!” The task force, rightly in my view, rejects any notion that the profession could or should try to limit the number of new graduates.

Among the very good reasons: law societies have no power over the law school admission or graduation process, and trying to erect barriers to entry into the legal profession would get the immediate and sharp attention of various state and anti-monopoly bodies. If your pipes are leaking, the solution is not to use less water; it’s to fix the damn pipes already.

The task force has given the law society an excellent blueprint for doing just that, openly expressing some uncomfortable facts about the bar admission process and all but demanding that the profession’s governing body respond with alacrity. It’s important to remember that there are no ideal solutions, and that whatever the law society eventually decides to do will be met with criticism, some of it legitimate. But we can do better than we’re doing now, and the task force deserves a lot of credit for steering the profession in the direction of this inconvenient truth.

Cross-posted at http://law21.ca.

]]> http://www.slaw.ca/2008/02/01/the-inconvenient-truth-about-articling/feed/ 6 http://www.slaw.ca/2007/12/16/amazonlaw/ http://www.slaw.ca/2007/12/16/amazonlaw/#comments Sun, 16 Dec 2007 23:23:43 +0000 Jordan Furlong http://www.slaw.ca/2007/12/16/amazonlaw/


If you’ve ever ordered an item from Amazon, you know that every time you log back in to the website, you’re greeted with a list of recommended books, CDs and DVDs. Amazon compiles this list based both on your product purchases and the pages you’ve recently browsed. Essentially, Amazon alters its understanding of and relationship with you every time you use its services — whether browsing, adding items to your shopping cart, or actually purchasing something. Every point of contact between you and Amazon is another data point that redefines the relationship’s fluid dynamic.

There’s a lesson here for lawyers, . . . [more]

]]>


If you’ve ever ordered an item from Amazon, you know that every time you log back in to the website, you’re greeted with a list of recommended books, CDs and DVDs. Amazon compiles this list based both on your product purchases and the pages you’ve recently browsed. Essentially, Amazon alters its understanding of and relationship with you every time you use its services — whether browsing, adding items to your shopping cart, or actually purchasing something. Every point of contact between you and Amazon is another data point that redefines the relationship’s fluid dynamic.

There’s a lesson here for lawyers, and with technology continuing to evolve at an astounding rate, it’s a lesson that lawyers can start implementing right now. Lawyers already can — and someday, they all will have to — tailor their interactions with clients in the same way.

In the Amazon.law era, all types of client behaviour and activity can be automatically recorded and used to create and constantly improve a multi-dimensional profile of the client. This profile in turn can guide the lawyer’s interactions with the client, from billing and communication to service delivery and business development. To some extent, the technological tools to do this, from database software to customer relations management, already exist.

How would this work? Let’s start by breaking down client activity into that which involves the lawyer and that which doesn’t. Let’s further break down the former category (lawyer-centered actions) into explicit and latent activities. These three general groups would look something like this:

1. Explicit lawyer-focused activity. Here, at the most basic level, we’re talking about the client’s direct interactions with the lawyer: her phone calls and e-mails to the firm, the inquiries she makes, the tasks she assigns, and the decisions she makes on the choices the lawyer places before her. This information forms the foundation of a client profile that allows the lawyer to understand his client more fully and to tailor the form and content of his dealings with her.

For example, a client inquiry about offshore tax shelters is noted and logged by the system, which draws the reasonable conclusion that this client will likely also be interested in developments in foreign tax rules and Canada Revenue Agency announcements about the treatment of such shelters. The client’s profile is accordingly updated and the client is added to an e-mail distribution list on both subjects, without the lawyer having to lift a finger. The client receives the e-mails and appreciates the lawyer’s thoughtfulness and proactivity.

There’s also an opportunity to draw upon the content of other client profiles in the firm’s database to see what clients with similar cases or interests have gone on to do. When a client seeks advice on rezoning land for a commercial real estate development, her profile is not only updated, it can be cross-tabulated and compared with profiles of other clients, some of whom later asked about public-private partnership opportunities in the province. The system would then alert the lawyer to contact this client in a couple of months’ time to raise this very issue. (Lawyers in smaller firms or sole practices with fewer clients might contribute to a secure and anonymized database of other small-firm lawyers’ clients to achieve the same ends).

Nor is it only the content of a client’s inquiries that can help customize her profile. The system can be designed to record every instance of a client phone call, fax or e-mail, and would notice that one client in particular tends to call and write more often than others do. The system might infer that this client needs more frequent contact and reassurance about her file, and is more prone to alienation if regular communication is not maintained. The system therefore prompts the lawyer to send updates to this client more often than usual.

In all these ways, every time the client makes contact with her lawyer, she adds another data point to her profile, filling in a more and more accurate portrait of who she is and what she needs from her lawyer. But the client can also add to this picture without ever picking up the phone or sending an e-mail.

2. Latent lawyer-focused activity. The lawyer can learn a great deal about a client, and can customize client service even more, by analyzing how she deals with the firm in more ancillary ways. This includes how and how often the client pays her bills, what pages she lingers over on the firm’s website, and what articles she reads in the firm’s e-newsletter.

For instance, if a client is consistently late paying her legal bill, her invoices might be automatically adjusted to add a 5% penalty for late payment (or, if the lawyer prefers honey to vinegar, a 2% discount for early payment). If a client receives a general business and corporate e-newsletter but only clicks on and reads the articles pertaining to entrepreneurship while ignoring the items on competition law, her copy of the e-news can be automatically customized to include more of the former and less of the latter. Not only that, but the client’s browsing interest is added to her profile and could prompt a phone call from the lawyer inviting her to a venture capital seminar.

It’s difficult to overstate what a deep impression this can make on a client. While the client might not necessarily believe the lawyer can read minds, she will already be surprised and pleased that her lawyer is “thinking of her,” even if it’s actually the lawyer’s system that’s doing the thinking. And the client’s delight only increases when the lawyer’s suggestions are directly relevant to what she’s working on or thinking about at the moment. In truth, that’s probably the only way the lawyer is likely to actually get the client’s attention at any given time.

I remember a speech given a couple of years ago by Francine Swanson, Senior Legal Counsel with BP Energy in Calgary and then-President of the Canadian Corporate Counsel Association. Addressed to law firms and their managing partners, it included the sobering news that most of the newsletters and articles firms helpfully sent her way were only glanced at or went unread altogether. She was so overwhelmingly busy that unless a particular article happened to deal directly with an issue that was on her desk right that moment, she ignored it.

The fact is, all clients are busy, and they don’t have time to flip through the mass-mailed FYI-type missives that still constitute most law firm newsletters. Give them something directly relevant to them right now, however, and you’ll make them sit up and pay attention to you. E-news customized according to the client's actual behaviour can deliver that result.

3. Universal client activity. Up until now, we’ve talked about what’s in the realm of the currently feasible. That most lawyers don’t take these sorts of steps to automatically build profiles of clients, and thus customize their client dealings and offerings, is a function less of technology and more of lawyers’ reluctance to invest in innovation. But in the future, we might very well see the emergence of a third level of client customization, made possible by further advances not just in technology, but also in our notions of privacy and in the nature of the lawyer-client relationship itself.

Computer futurists talk about “context aware” computing, where the system takes note of the complete environment within which a person operates and maximizes the efficiency and effectiveness within which that person’s wants and needs are anticipated and met. In this scenario, the computer fades into the background, becoming as ubiquitous and taken for granted as household electrical wiring is today. That sort of inconspicuous computing can serve as a kind of model for “inconspicuous lawyering,” in which the lawyer is a permanent but largely unseen part of the client’s day-to-day life. This really constitutes the ultimate stage in the lawyer-client relationship.

Consider what would happen if a client were to grant her lawyer permission to access some or all of her day-to-day personal and/or business dealings. The lawyer would have already proven himself capable of using the client’s explicit and implicit dealings with the law firm to customize his service delivery and anticipate her current and future legal needs. Based on that success, the client might be ready to open up more of her activities and dealings outside the legal sphere — with employees, suppliers, service providers and others.

The lawyer could apply the same analytics to the data gleaned from these third-party interactions to improve the quality and nature of his advice and services to the client. For example:

• Frequent e-mail reminders from the client to her employees about proper conduct could prompt the firm to offer the client’s company a seminar on governance.
• An increase in budget and approval rates for R&D projects might mean the client will soon need help with patent applications.
• Repeated difficulties with an overseas supplier might indicate the client could use a primer on the enforcement of contracts in that supplier’s jurisdiction.

By casting a wider net with the client’s permission, the lawyer could collect even more data and start building a truly powerful profile of the client’s needs, interests, preferences and goals — any or all of which the lawyer could go some way towards meeting. The lawyer will have positioned himself as the client’s tactical partner and advisor, and will have become an indispensable part of the client’s life, while the client will be receiving an unprecedented level of tailored counsel and expertise.

Pretty clearly, this is not a scenario likely to play out between lawyers and clients anytime soon. The technology has a ways to go yet, but mostly, it’s two human elements that still stand in the way of this type of innovation. The first is the degree of comfort we all have in sharing the most fundamental details of our businesses or especially our personal lives with others — privacy is still an overriding concern for most people, although I actually think that concern will become less pressing in the years to come as we understand the conveniences and efficiencies for which privacy can be traded.

But even more important than that is the key element to any successful lawyer-client relationship: trust. In order to reach a point at which a client is willing to share this level of private information with her lawyer, the relationship between them must be so outstanding that trust is implicit in everything they do together.

Books have been written on the importance of trust between lawyers and clients. Some people, and I’m among them, believe that the ability to earn and keep trust is the single most important element of the lawyer’s professional identity. Fundamental to trust is transparency, which is why I think we could go a long ways towards Amazon.law by giving every client an extranet — not just one for each of her matters with the firm, but one for the client herself. The sort of constantly evolving profiles described above would have to be fully accessible 24/7 to the clients themselves, so that they can see and understand what the lawyer is learning about their own behaviour.

Lawyers have a bad habit of keeping to themselves the information they’ve accumulated about their clients. In future, clients won’t put up with that: they’ll come to realize that this information belongs to them, and they are fully entitled to see it and review it whenever they choose. When both the client and the lawyer come to the point where they’re willing to trust each other with the information they’ve acquired in the course of their relationship, then we’ll be on the verge of a new paradigm in client relations.

At that point, it won’t seem the least bit strange to build client profiles that reflect the evolving reality of clients’ lives and that dictate the kind of customized service that they receive. Viewed in this light, the whole idea of Amazon.law — the concept of a lawyer adapting and tailoring his services to the fluid reality of each client’s life — is nothing more than an exercise in applied trust.

]]> http://www.slaw.ca/2007/12/16/amazonlaw/feed/ 6 http://www.slaw.ca/2007/10/22/draw-your-own-conclusions/ http://www.slaw.ca/2007/10/22/draw-your-own-conclusions/#comments Mon, 22 Oct 2007 20:20:13 +0000 Jordan Furlong http://www.slaw.ca/2007/10/22/draw-your-own-conclusions/ The rejuvenated ABA Journal recently conducted an 800-lawyer survey, the results of which appeared in the October 2007 issue and on the Journal's website. Some of the findings say a lot without having to say much at all. Consider the subtexts within respondents' level of agreement with the following statements:

"I find the practice of law to be intellectually stimulating" — 81% "I am satisfied with my career" — 55%

"I am satisfied with my career" - Public-sector lawyers — 68% - Big-firm lawyers — 44%

"I feel that my firm or organization values my contribution" - White . . . [more]

]]> The rejuvenated ABA Journal recently conducted an 800-lawyer survey, the results of which appeared in the October 2007 issue and on the Journal's website. Some of the findings say a lot without having to say much at all. Consider the subtexts within respondents' level of agreement with the following statements:

"I find the practice of law to be intellectually stimulating" — 81%
"I am satisfied with my career" — 55%

"I am satisfied with my career"
- Public-sector lawyers — 68%
- Big-firm lawyers — 44%

"I feel that my firm or organization values my contribution"
- White — 68%
- Non-white — 54%

"It's harder to become a partner today than it used to be"
- Small firm — 35%
- Mid-sized firm — 46%
- Big firm — 83%

"The cost of litigation has become prohibitive in recent years"
- Big-firm lawyers — 76%
- In-house counsel — 85%

"In recent years, competition between firms has increased"
- Big-firm lawyers — 90%
- In-house counsel — 78%

"I would recommend a legal career to a young person"
- Less than three years in practice — 57%
- 3-5 years in practice — 59%
- 6-9 years in practice — 35%
- 10 years or more in practice — 42%

]]> http://www.slaw.ca/2007/10/22/draw-your-own-conclusions/feed/ 2 http://www.slaw.ca/2007/10/09/e-grammar/ http://www.slaw.ca/2007/10/09/e-grammar/#comments Tue, 09 Oct 2007 20:58:00 +0000 Jordan Furlong http://www.slaw.ca/2007/10/09/e-grammar/ I understand that strict adherence to good grammar is, in some circles, considered to be a slightly annoying trait. And I understand that e-mail is a rapid, off-the-cuff communications medium to which formal correspondence etiquette isn't always expected to apply.

But I'm still rather aghast that I received two e-mails today that contained spelling errors in the subject line – one a professional press release ("Reserach Highlights") and the other, believe it or not, a job application for an editorial position ("Piublication").

A former boss of mine in the publishing industry once sent a company-wide e-mail with a subject line . . . [more]

]]> I understand that strict adherence to good grammar is, in some circles, considered to be a slightly annoying trait. And I understand that e-mail is a rapid, off-the-cuff communications medium to which formal correspondence etiquette isn't always expected to apply.

But I'm still rather aghast that I received two e-mails today that contained spelling errors in the subject line – one a professional press release ("Reserach Highlights") and the other, believe it or not, a job application for an editorial position ("Piublication").

A former boss of mine in the publishing industry once sent a company-wide e-mail with a subject line that read simply "Annuincemnet." It only confirmed for many employees how seriously he took both the contents and his audience. So is this just a one-day blip in my Inbox, or has anyone else experienced this sort of thing lately?

]]> http://www.slaw.ca/2007/10/09/e-grammar/feed/ 2 http://www.slaw.ca/2007/10/02/winds-of-change-picking-up/ http://www.slaw.ca/2007/10/02/winds-of-change-picking-up/#comments Tue, 02 Oct 2007 21:24:05 +0000 Jordan Furlong http://www.slaw.ca/2007/10/02/winds-of-change-picking-up/ Three interesting items in the inbox today, each of which reflects a different facet of the many forces hard at work on producing imminent changes to the profession.

First comes news from the ABA’s Law School Admissions Council that the number of applications to U.S. law schools dropped in 2006 by 7.6%, the second straight annual decrease on top of a sharp deceleration in 2004 in the longstanding trend of rising admissions. The linked article focuses on the drop in both applications and admissions among women, and properly so. But many of the reasons for the decrease cited in the . . . [more]

]]> Three interesting items in the inbox today, each of which reflects a different facet of the many forces hard at work on producing imminent changes to the profession.

First comes news from the ABA’s Law School Admissions Council that the number of applications to U.S. law schools dropped in 2006 by 7.6%, the second straight annual decrease on top of a sharp deceleration in 2004 in the longstanding trend of rising admissions. The linked article focuses on the drop in both applications and admissions among women, and properly so. But many of the reasons for the decrease cited in the article — stronger economic times, more lucrative non-law career paths, bad publicity about punishing workloads in law firms — cross gender barriers altogether. With the talent wars in full swing, the private bar will not be happy to hear of a potential trend towards smaller graduating classes. I’d be very interested in seeing similar statistics from Canadian law schools.

Secondly, the consultants at Grant Thornton have released their 2007 Professional Services Insights survey, which looks at numerous mid-sized professional firms in fields such as engineering, architecture, and especially law (almost half of all respondents were law firms). The report says professional firms’ fundamental management models will have to change, in light of client consolidation, talent recruitment and retention, and generational cultural changes. “A broader team-based model characterized by a firm-client relationship will need to be adopted by professional services firms, to respond to the broader needs faced by clients and the new career demands of next-generation practitioners,” the press release says. “The report identified a trend toward this type of thinking at architecture and engineering firms, but" — you know where this is going — "less so among law firms.”

The day’s final story contains news of one law firm in Alberta that apparently is ready to adopt and adapt to the dynamics of 21st-century business. The Calgary Herald reports that the law firm of Shea Nerland Calnan is the joint owner of a new tax advisory firm called Moody LLP. The new firm isn’t providing any accounting services, even though most of the employees are CAs — it’s offering purely advisory and tax planning services. “What we see is the mid- to small-sized accounting and legal practices in the province don’t have tax planning departments,” Nerland told the Herald. “There are more and more people in need of those top-end planning services. There’s a lot of opportunity there.” There’s also a lot of opportunity for law firms to make bold strategic moves like this — Moody LLP is the first such jointly owned tax advisory practice in Alberta and only the third in Canada.

There’s a real first-mover advantage available to lawyers and law firms that feel the ground shifting under their feet and reposition themselves accordingly. It’ll be interesting to see who moves fastest and best.

]]> http://www.slaw.ca/2007/10/02/winds-of-change-picking-up/feed/ 0 http://www.slaw.ca/2007/10/01/millennial-fever/ http://www.slaw.ca/2007/10/01/millennial-fever/#comments Mon, 01 Oct 2007 15:46:34 +0000 Jordan Furlong http://www.slaw.ca/2007/10/01/millennial-fever/


During the past 50-odd years, the North American legal profession has been notable for a ready supply of labour. The post-war population boom and increased access to post-secondary education, combined with the enduring lure of a legal career, ensured that there would always be a deep pool of lawyers into which firms could dip for talent.

When a buyer’s market lasts that long, the buyers’ advantages become locked into the prevailing culture of the marketplace. Much of what we take for granted in modern law firms — hourly billable targets, ever-increasing workloads, lengthening partnership tracks, client hoarding by partners, and . . . [more]

]]>


During the past 50-odd years, the North American legal profession has been notable for a ready supply of labour. The post-war population boom and increased access to post-secondary education, combined with the enduring lure of a legal career, ensured that there would always be a deep pool of lawyers into which firms could dip for talent.

When a buyer’s market lasts that long, the buyers’ advantages become locked into the prevailing culture of the marketplace. Much of what we take for granted in modern law firms — hourly billable targets, ever-increasing workloads, lengthening partnership tracks, client hoarding by partners, and more — can be traced at least in part to firms’ established ability to dictate the terms of employment to a fairly low-cost and easily leveraged labour pool. Law firm employers have held the whip hand for so long that we’ve come to think it’s just the natural order of things.

That’s about to change. Talent — in nicer terms, the actual human beings who provide legal services — is becoming scarce. This is new, and for a lot of law firms, it’s not going to be fun.

Obviously, part of it is that demographics giveth and demographics taketh away. The great Boomer exodus from the workforce isn’t unfolding as dramatically as some predicted, but the legal recruiters I’ve talked with say it’s a real issue.

It’s not so much that the Boomer partners have reached “retirement age” — I think this generation will stay fully occupied at one thing or another till the day they drop — but that many of them won’t be enticed to keep plugging away at the firm. They’re financially comfortable, their kids have grown, and they want to travel, or start a vineyard, or become full-time directors, or give back to their communities, or do something other than show up at the office again this week. One way or another, their numbers will start dropping faster than age-related attrition would suggest.

At the other end, the Millennials are now entering the profession. Enough has been published about the workplace impact of Generation Y to choke a horse, but the key takeaway here is that members of this cohort believe they have many more options than the two generations that came before it. They’ve never experienced a recession, they’ve always been able to count on financial backup from their parents, and they’ve never been given a reason to live by any terms but their own.

In short, they’re natural-born sellers — and by a happy coincidence, they’re entering the first seller’s market the legal profession has seen in decades. This is already discombobulating a lot of partnership committees that aren’t used to hearing current or prospective employees talk and behave like this.

But it’s not just that this group has a different attitude towards work. It’s also a different marketplace for talent out there.

The new economy is providing scores of new career paths for people with legal backgrounds. Many of these paths offer more interesting work in more exciting industries for more money than the law can provide (notice how “fewer hours,” the supposed Achilles’ heel of these supposedly uncommitted youngsters, isn’t on that list?). One of the reasons New York law firms had to raise first-year lawyer salaries to $160,000 a year was that investment banks and hedge funds, cutting-edge employers for whom money truly is no object, were snapping up the top law grads. This won’t be confined to the Big Apple. Law firms all over the continent are going to find it increasingly hard to compete with other employers who can offer lawyers interesting work at a good salary.

Many firms faced with this problem are going to try solving it the old-fashioned way: throwing money at it. That doesn’t work terribly well at the moment, and it’s going to work less well in future, because the truly fatal characteristic of many law firm jobs isn’t the money or even the hours or the pressure — it’s that the quality of the work isn’t all that great.

What a lot of law firm associates are quietly saying is that the type of work they typically receive is distinguished largely by drudgery and routine. Younger lawyers aren’t afraid of working hard, but they have a heartfelt aversion to working hard at mundane tasks for years on end without an excellent reason for doing so. These lawyers want to do interesting work, learn new skills, and improve their networks in a congenial atmosphere. And they’ll go to the wall for employers who offer it.

But many law firm partners still keep most of the good work and client contact to themselves. And no one has ever accused your average law firm of being an upbeat, can-do workplace. When there were lots of lawyers around who didn’t feel they had many other career choices — and who were a lot more interested in gaining equity partnership status than this current group is — firms could get away with that kind of stuff. Now, not so much. The resounding message many younger lawyers have been sending firms the last few years is that life in a law firm is not, as they say, all that and a bag of chips.

So, what do we have? The departure of older Boomers is set to accelerate, and the influx of newer Millennials is going to be diluted. In the result, there will be fewer lawyers available to take on the available work, which should mean these lawyers can demand higher wages and other concessions from their firms. This will come at a particularly bad time for law firms, which are getting very strong signals from corporate clients that they’re tired of underwriting the latest record profit-per-partner numbers. But the potential impact is greater than that.

I started by suggesting that today’s dominant law firm culture has been shaped by the marketplace realities of the last half-century, which in turn was heavily influenced by demographics. As the Millennials become more and more of a political force within firms, I think you’re going to see a cultural shift too.

Boomers, for whom time was a means to an end, will be replaced by Gen-Yers, for whom time is an end in itself — so how much longer do you think the billable hour system will continue? Boomers think in linear terms and are focused on individual goals, while Millennials collaborate almost by instinct and are natural multitaskers — how long do you think client hoarding will rule and cross-selling will be ignored? Many Boomers still resent e-mail, while Generation Y lives and breathes through online communication — how much longer before extranets, blogs and wikis are part of the everyday fabric of a firm’s operations?

I’m not saying that the march of the Millennials marks the dawn of a golden age — this new generation has plenty of blemishes too, not least an inability to cope with the kind of severe economic downturns that we can expect in short and rapid order. Not all change is good. But it’s reasonable to think that we finally will see law firms break out of their old routines and regimes and start resembling the rest of the 21st-century business world. And there’s actually some irony in that.

Over the years, those of us advocating major operational and cultural evolution in the practice of law have come to despair of effecting change from within. So instead, we’ve been waiting and hoping that clients would throw their weight around and apply sufficient pressure to promote new practices. That’s starting to happen in a few places, but most clients haven’t yet woken up to their own power. It would be fairly ironic, then, if change did end up emanating from inside the profession after all, through the simple manifestation of generational turnover.

]]> http://www.slaw.ca/2007/10/01/millennial-fever/feed/ 0 http://www.slaw.ca/2007/09/24/playing-the-law-school-ranking-game/ http://www.slaw.ca/2007/09/24/playing-the-law-school-ranking-game/#comments Mon, 24 Sep 2007 17:35:38 +0000 Jordan Furlong http://www.slaw.ca/2007/09/24/playing-the-law-school-ranking-game/ Maclean's has released its first ranking of Canadian law schools. The magazine's choices for the top law faculties I'll leave till later in this post, because there are rather more interesting things going on here.

Let's first look at the methodology. The schools are ranked equally on faculty quality (50%) and graduate quality (50%), the latter broken down into elite firm hiring (25%), national reach (15%) and Supreme Court clerkships (10%). Here's the ranking's director, Professor Brian Leiter of the University of Texas at Austin Faculty of Law, speaking about the breakdowns:

The primary reason for the 50/50 . . . [more]

]]> Maclean's has released its first ranking of Canadian law schools. The magazine's choices for the top law faculties I'll leave till later in this post, because there are rather more interesting things going on here.

Let's first look at the methodology. The schools are ranked equally on faculty quality (50%) and graduate quality (50%), the latter broken down into elite firm hiring (25%), national reach (15%) and Supreme Court clerkships (10%). Here's the ranking's director, Professor Brian Leiter of the University of Texas at Austin Faculty of Law, speaking about the breakdowns:

The primary reason for the 50/50 weighting is to make it easy for a reader to disentangle the relative contribution of each element. Someone who has the traditional view that the excellence of a school is a function of the excellence of its faculty can see fairly easily how the schools perform on that dimension; someone who is mostly concerned with how the bench and bar view the graduates can disentangle that consideration simply. … Since the rankings aim to make the raw data more easily digestible, we needed to make some judgments about the relative importance of different kinds of professional achievement.

I count two "easily"s, one "easy" and one "simply" there, and in truth, there is a certain back-of-the-envelope charm to be found in the data-gathering process. For instance, faculty members were measured on citations in Canadian law journals. Why not journals elsewhere in the world? "I can see no reason why the measure of scholarly excellence in Canadian law schools should be citations outside Canada," said Leiter. Turns out your reference in the Cambridge Law Journal wasn't as important as you thought it was.

How did the magazine define "elite law firms"? By consulting another magazine — specifically, Lexpert's list of leading law firms. Since elite law firms in Canada are not to be found among excellent and profitable six-partner general practices in Surrey, Kingston or Saint John, this works out well. I mean, not all these firms have detailed websites, and since Maclean's matched the schools to the lawyers by visiting the firm sites and counting the schools mentioned in the lawyer profiles, that's a key consideration.

I could go on, but I'd rather not. Law school rankings are similar to Most Valuable Player results in professional sports — the process and choice of criteria end up being a bigger story than the results themselves, and it gets old in a hurry.

What's more interesting is that these criteria are uniformly "objective" — they rely on facts and statistics gleaned from data, rather than, say, interviews with leading decision-makers in the legal, business and client communities. I don't think that "objective" or "subjective" data sources are any better one than the other, but many rankings often try to incorporate a mix of the two. Maclean's prefers to let the data speak for themselves, and that's fine. I do find it interesting, however, that the magazine's final rankings — U of T first, McGill second, Osgoode third, and so forth — are not wildly different from the results that other less formal surveys and general professional gossip tend to produce. I'm not saying it's right or wrong, but it is a lot of effort to get to a place we already were.

There's one important question, however, that hasn't been asked or answered here. Maclean's has ranked Canada's law schools from best to worst. But best for what? Worst at what? What is the essential function that Maclean's believes law schools serve? If you haven't nailed down what a law school is supposed to be or to do, it's kind of hard to say that some schools are better at it than others. This particular ranking splits its criteria evenly between professors' reputation among their peers and certain legal employers' evident opinions of graduates' work ability. So if you were to call this a "faculty reputation and graduate hiring" ranking, that would be a more accurate description — with the added caveat that only reputation within Canada and hiring by a very limited number of legal employers are counted. If those are your indicators of merit, this is the survey for you.

In fairness to Maclean's, though, I think that most lawyers, and even many law schools themselves, have similarly blinkered views. National law firm managing partners will tell you in very clear terms what a law school is for; legal aid clinic directors will tell you something very different; Superior Court judges and general counsel and deputy ministers will have their own answers. And, oh yeah — professors and deans have some thoughts on the matter, too. Every law school in Canada is unique and has a different and always-evolving set of goals and visions. But each of us tends to look at law schools through the refracting lens of what we believe lawyers should do and what the law should be, and that colours our perception of whether a school is successful or not.

There is no consensus in Canada about law schools' raison d'être, and most of us haven't given the subject the good, hard think it deserves for too long a time. Until there's something approaching a professional consensus on why we have law schools, what they're meant to achieve and how that can be measured, I don't see much point in ranking them.

]]> http://www.slaw.ca/2007/09/24/playing-the-law-school-ranking-game/feed/ 0 http://www.slaw.ca/2007/09/19/for-all-you-do-this-law%e2%80%99s-for-you/ http://www.slaw.ca/2007/09/19/for-all-you-do-this-law%e2%80%99s-for-you/#comments Wed, 19 Sep 2007 17:50:52 +0000 Jordan Furlong http://www.slaw.ca/2007/09/19/for-all-you-do-this-law%e2%80%99s-for-you/ Startling news, to say the least, in the Globe’s Business section today. Telus and Bell paid two lawyers at McCarthy Tétrault to draft a model telecommunications bill that’s been offered to the government as a template for a new Telecommunications Act. You could be forgiven for wondering if the next amendments to the Canada Health Act will be brought to you by RJR Nabisco.

But I think there’s more to it than that. As the article points out, the drafting lawyers are enormously respected and the companies have reportedly had no input whatsoever into the content of the model . . . [more]

]]> Startling news, to say the least, in the Globe’s Business section today. Telus and Bell paid two lawyers at McCarthy Tétrault to draft a model telecommunications bill that’s been offered to the government as a template for a new Telecommunications Act. You could be forgiven for wondering if the next amendments to the Canada Health Act will be brought to you by RJR Nabisco.

But I think there’s more to it than that. As the article points out, the drafting lawyers are enormously respected and the companies have reportedly had no input whatsoever into the content of the model bill. I can see why they’d keep their distance: Bell and Telus would suffer enormous PR hits if they were perceived to be manipulating the legislative process, and no government (especially a minority one) would even consider passing such a tainted law.

So if they don’t get to help write the model law, why would the corporations bankroll it? I would imagine that from their point of view, any updated version of the Act would be an improvement on what’s now in place. But it also has the effect of sending the government a public message about making telecommunications law reform a higher political priority than it now appears to be.

CRTC Chairman Konrad Von Finckenstein could have shot down the proposal had he wanted, but instead he praised the model law as a “welcome first step,” while still criticizing a number of its facets. It’s clear that the model law will not be adopted as is, but it does appear to be a good start. The broader issue, of course, is whether the private sector should have any role in the legislative drafting process.

At first blush, there’s no reason government legal work can’t be outsourced — Ottawa has paid law firms millions of dollars to litigate matters like the softwood lumber case and aboriginal disputes. Drafting laws is obviously a different matter, but NGOs already play a part there. The Canadian Bar Association has been making submissions to government for years on how bills could be improved before final reading and passage, and the CBA’s work is widely recognized to be both impartial and excellent.

It would be naïve to assume that future iterations of the Bell/Telus approach would necessarily be conducted with the kind of independence that has evidently marked this effort. It’s trite to say that corporations act in the interests of their shareholders, not the public. But the public life of the country has become immensely complex, and there are hundreds of pressing issues vying for the government’s attention. There’s an argument to be made that “4-P” arrangements — private-public policy partnerships — if transparently conducted and independently reviewed, could be a legitimate evolutionary step in the policymaking process. There are also very compelling arguments against. Hopefully, this news gets that debate rolling.

]]> http://www.slaw.ca/2007/09/19/for-all-you-do-this-law%e2%80%99s-for-you/feed/ 2 http://www.slaw.ca/2007/09/18/gated-communities-on-the-net/ http://www.slaw.ca/2007/09/18/gated-communities-on-the-net/#comments Tue, 18 Sep 2007 17:44:27 +0000 Jordan Furlong http://www.slaw.ca/2007/09/18/gated-communities-on-the-net/ I received a press release today for a lawyer social networking site called LawLink, which apparently aims to be LinkedIn for Lawyers, or maybe Facebook Without the Kids. Free registration allows you to "network with other attorneys, develop new business leads, share information with other attorneys, develop new business leads," etc. A lawyers' social network site is a fine idea — although many lawyers are still unfamiliar with or dismissive of LinkedIn/Facebook (according to an article we'll publish next month), lawyers are networking and gossip mavens at heart, and I do think this will catch on within the profession . . . [more]
]]> I received a press release today for a lawyer social networking site called LawLink, which apparently aims to be LinkedIn for Lawyers, or maybe Facebook Without the Kids. Free registration allows you to "network with other attorneys, develop new business leads, share information with other attorneys, develop new business leads," etc. A lawyers' social network site is a fine idea — although many lawyers are still unfamiliar with or dismissive of LinkedIn/Facebook (according to an article we'll publish next month), lawyers are networking and gossip mavens at heart, and I do think this will catch on within the profession soon enough.

LawLink, however, is restricted to American lawyers only — among the required application fields are "Bar Number" and "State," and can I just say how annoying it is to come across any major online operation that offers access, service or delivery to anyone in the 50 states but nowhere else in the world? I'm looking at you, Kodak. Anyway, LawLink's press release underlines that this site is "exclusively" for lawyers, and they're serious: the registration form requires you to "declare under penalty of perjury that I am an attorney licensed to practice law in the United States." First time I've seen a website threaten would-be registrants with jail time.

There are two opposing trends at play here. One is the fact that in the Web's global village, drawing your admissibility lines across national borders sure looks like a recipe for future irrelevance. But the other is that online communities are, perhaps understandably, anxious to maintain control over who can join — Wikipedia has demonstrated that a completely open-door policy lets in a lot of people with whom you'd really rather not share a room. So we have little gated communities all over an Internet that is increasingly universal in scope and access. Which trend will win out, do you think?

]]> http://www.slaw.ca/2007/09/18/gated-communities-on-the-net/feed/ 1 http://www.slaw.ca/2006/09/28/law-practice-in-the-21st-century/ http://www.slaw.ca/2006/09/28/law-practice-in-the-21st-century/#comments Thu, 28 Sep 2006 20:56:25 +0000 Jordan Furlong http://www.slaw.ca/?p=1327 Earlier this month, I visited San Francisco for the first time. I’d long been fascinated by the thought of a city built on a geological time bomb, and walking its streets was quite an experience.

Everyone knows there’ll be a massive seismic rupture underneath the city someday. But San Franciscans are neither hot nor bothered by it; they go about their lives in their beautiful city. Their chances of being engulfed in an earthquake remain extraordinarily small, and there’s nothing they can do to prevent it anyway, so why worry?

I think you could draw a few parallels between . . . [more]

]]> Earlier this month, I visited San Francisco for the first time. I’d long been fascinated by the thought of a city built on a geological time bomb, and walking its streets was quite an experience.

Everyone knows there’ll be a massive seismic rupture underneath the city someday. But San Franciscans are neither hot nor bothered by it; they go about their lives in their beautiful city. Their chances of being engulfed in an earthquake remain extraordinarily small, and there’s nothing they can do to prevent it anyway, so why worry?

I think you could draw a few parallels between San Francisco and the legal profession. Great forces are in motion, seismic change is in the offing, and while prosperity reigns today, ripping upheaval is inevitable. I don’t pretend for a moment that lawyers are threatened with annihilation – so long as there’s law, there’ll be lawyers – but after the strike comes, we’ll have trouble recognizing the landscape.

You could trace the first tremor back to December 2004 in London. Thanks to the report of David Clementi, unprecedented changes are underway in the United Kingdom’s legal profession. In May, the UK government introduced a draft Legal Services Bill, and just this week, issued its response to amendments recommended in July by a parliamentary committee that consulted with lawyers.

In a nutshell, under the new legislation, complaints about lawyers will be overseen by a new Legal Services Board and Office for Legal Complaints; Alternative Business Structures (perhaps more familiar to us as MDPs) would allow lawyers to go into business with non-lawyers; and both non-lawyer ownership of law firms and public trading of shares in law firms would be permissible. (By the way, three Australian states have already taken lawyer discipline out of lawyers’ hands, and New Jersey now allows law firms to own other firms as subsidiaries.)

The Clementi Report was initially triggered by the Law Society of England & Wales’ perceived inability to investigate complaints against lawyers in a timely or effective manner. That has not been a problem in Canada, and I doubt it'll become one. But the wide-ranging legal reform that followed had a far greater ambit — it was designed to render the delivery of legal services consumer-friendly. “[T]he rules governing the legal professions,” said the Fair Trade Office, “should be fully subject to competition law, and unjustified restrictions on competition should be removed.”

There’s no reason that similar sentiments wouldn’t fly here – and in fact, the Commissioner of Competition has already flown them. The Commissioner gave a speech in May 2006 that referenced, among other things, tests proposed in the European Commission’s February 2004 Report on Competition in the Professions to determine whether professions are governing themselves in the public interest. We’ll be examining this issue more closely in the January 2007 issue of National, but I would imagine the Commissioner might be interested that a governing body of lawyers would like to regulate other groups offering legal services. The US Federal Trade Commission and Department of Justice warned the ABA almost five years ago to be careful not to define “the practice of law” so restrictively that antitrust agencies become alarmed.

So: in England, wholesale and perhaps precedent-setting changes are being made to how law firms operate and how lawyers are governed. Governments elsewhere are taking a keen interest in lawyers’ efforts to decide what constitutes the practice of law. And in Canada, we have a demographic groundswell to deal with: the imminent decline in solo and small-firm lawyers practising in rural Canada.

As reports from both Ontario and B.C. make clear, lawyers outside Canada’s urban centers are older than average and are not being replaced by younger lawyers graduating from law school. As non-urban Canada empties of lawyers, the continuing demand for legal services will be met by a dwindling supply of lawyers to meet them. And a not-unlikely outcome of that combination could be a potential deregulation of legal services delivery — someone has to provide legal services to these people, governments might reason, and if lawyers can't manage it, we'll let someone else do it.

None of this takes into account the many other roiling forces that are affecting the profession: the growing commoditization of some legal services, the trend towards outsourcing and offshoring of legal services in a flat world, the rise of Generation Y and the gradual diminishment of Boomer power, and an increasingly dissatisfied client base. Take all this together, and you can see why some people think that the next ten or twenty years could see tremendous upheaval in how we practise law.

As I said earlier this week, predictions of great change are almost always premature – futurists are rarely asked back for encore performances. But invariably, the change does eventually arrive, usually when no one’s looking for it. It might be wise to keep one ear to the ground.

]]> http://www.slaw.ca/2006/09/28/law-practice-in-the-21st-century/feed/ 0 http://www.slaw.ca/2006/09/28/legal-education-in-the-21st-century/ http://www.slaw.ca/2006/09/28/legal-education-in-the-21st-century/#comments Thu, 28 Sep 2006 12:48:43 +0000 Jordan Furlong http://www.slaw.ca/?p=1323 I wasn't much of an articling student. I worked hard, but not smart: my learning curves were more like sheer cliff faces. I’m sure I wasted a lot of clients’ money and lawyers’ time during my year of service, and the firm was right not to ask me back.

In retrospect, I can see many things I should have done differently. But at the time, I was seriously peeved that no one had prepared me for this, that I hadn’t the first clue of what the practising Bar required. That’s been a pretty common experience for many new lawyers before . . . [more]

]]> I wasn't much of an articling student. I worked hard, but not smart: my learning curves were more like sheer cliff faces. I’m sure I wasted a lot of clients’ money and lawyers’ time during my year of service, and the firm was right not to ask me back.

In retrospect, I can see many things I should have done differently. But at the time, I was seriously peeved that no one had prepared me for this, that I hadn’t the first clue of what the practising Bar required. That’s been a pretty common experience for many new lawyers before and since.

Many lawyers blame the law schools, using overworn clichés like “ivory towers” and “here in the real world.” But law schools aren’t trade schools, and I don’t think they ought to be. A good legal education teaches students that the law has a history, a purpose and a soul, that law matters; it’s an incredibly rich and fulfilling experience that gives us the right to call ourselves “professionals.”

But law schools will have to adapt to changing circumstances in the years to come; they won’t really have much choice.

It’s not just the schools — law societies, CLE providers, and the practising Bar all share in the responsibility for a legal education system that’s not working very well now and will work much less well in future. They all have to face the question: what training and education do lawyers require in order practise law in the 21st century?

I don’t think we need to do much work on substantive, “black-letter” law: we’re very good at teaching ourselves that, from first-year law school through to advanced CLE seminars. What's missing from legal education right now is the wherewithal to serve clients well and conduct ourselves professionally.

Here are just a few of the skills in which lawyers need thorough, professional training from the start:

Client relations: First and foremost, empathy: understanding your clients’ personal turmoil and showing them that it matters to you. Secondly, setting mutual expectations for your client relationship. Then the basic stuff – regular communication, retainer letters and the like.

Business acumen: How to run a practice without falling afoul of the law society. How to balance a budget and operate a small business without falling afoul of the bank. How to get clients to pay you on time, if at all.

Business development: How to find clients, keep them, and get more clients as required. How to market yourself in a hundred different ways. Every new lawyer should be given a starter Website upon their call to the Bar.

Dispute resolution: Moot court experiences in school are great. Moot settlement conferences and moot collaborative law sessions would be much better, since most lawyers face these situations far more often.

Legal ethics: Lawyers require a solid grounding in both understanding the law’s moral compass and resolving modern-day bugbears like conflicts of interest and trust-fund usage. Lawyers should know their Code of Professional Conduct like preachers know their holy books: chapter and verse.

I’m sure you can think of others. These are skills that lawyers will require their whole professional lives, yet most of us don’t learn them until we’re several years into our careers. That has to change. Bar admissions courses are improving all the time, but they can only scratch the surface.

Twenty-first century legal education is really the subject of a book, not a blog entry. But here’s a bullet-point list of what I think might change in legal education in the years ahead (I say nothing about whether these possible changes are good or bad):

–> If students aren’t better prepared for practice when they enter their articling year, more and more firms will refuse to accept articling students at all. Law firms’ profitability expectations will trump the historical and professional responsibility arguments for articling. If that happens, the bar admissions process will be thrown into crisis.

–> A power struggle will take place among law schools, law societies and the largest law firms over what sort of education lawyers need and who should pay for it. Law schools, which have the least leverage of the three, will lose badly if they haven’t taken steps before then to mitigate their damages – perhaps by introducing “practice streams” that students can choose after two years of traditional education.

–> Law firms that donate millions to law schools will demand that partners be allowed to join the faculties as either professors or board members overseeing curriculum choices. Meanwhile, the last of the massive boomer generation of professors will move into retirement. The combined effects on law faculty culture will be profound.

–> CLE will finally get the critical analysis it needs, especially if mandatory CLE becomes a reality. CLE providers will have to prove their offerings help reduce E&O claims and result in satisfied clients; CLE providers unaffiliated with traditional legal institutions will do surprisingly well. Internet-delivered CLE will be the norm, not the exception. Adult learning techniques will replace the tired lecture-hall presentations so common today.

–> If lawyer self-governance is ever seriously threatened, state actors might decide that lawyers haven’t been doing a good enough job of educating themselves. Government directives that legal training must become more rigorous might prove quite appealing to entities that would benefit financially from every extra year required to enter the profession.

–> In the end, lawyers might require as many as six years of training before being allowed to practise law – which would bring them more in line with other professionals, such as doctors, who currently face more gruelling paths to the lofty status and revenue heights they share with many lawyers.

What do you think? Are these diagnoses and predictions on the money or way off the mark? Given the strong academic current among SLAW authors and readers, I’m very interested in your take on the foregoing.

]]> http://www.slaw.ca/2006/09/28/legal-education-in-the-21st-century/feed/ 3 http://www.slaw.ca/2006/09/27/technology-and-the-21st-century-lawyer/ http://www.slaw.ca/2006/09/27/technology-and-the-21st-century-lawyer/#comments Wed, 27 Sep 2006 13:45:41 +0000 Jordan Furlong http://www.slaw.ca/?p=1319 As someone who still pays his bills with a chequebook and stamps, I'm a little reluctant to address the whole question of technology in the legal profession. But here we go anyway:

To get a sense of the degree to which the law is still a pen-and-paper profession, listen to the language that lawyers use. “Paper the other side,” articling students are told. “Note up the case. Write a memo to file. Docket your time.” In our mind’s eye, it seems, we’re working in the age of bound ledgers and three-ring-binder timesheets, and the phrases we use unconsciously reflect that. . . . [more]

]]> As someone who still pays his bills with a chequebook and stamps, I'm a little reluctant to address the whole question of technology in the legal profession. But here we go anyway:

To get a sense of the degree to which the law is still a pen-and-paper profession, listen to the language that lawyers use. “Paper the other side,” articling students are told. “Note up the case. Write a memo to file. Docket your time.” In our mind’s eye, it seems, we’re working in the age of bound ledgers and three-ring-binder timesheets, and the phrases we use unconsciously reflect that. That’s going to be a problem for 21st-century lawyers, for whom trying to ignore technology will be like trying to politely overlook that tornado outside the window.

Someone once said that technology isn’t really user-friendly unless you can explain it in ten words or fewer – it’s so easy to understand that your grandmother gets it. E-mail is easy: “Type a letter, press a button, and you’ve mailed it.” RSS, so far, isn’t: “First you set up an account with a news aggregator, and then you subscribe to a blog feed by finding the little orange XML icon on a web page and…” and Grandma ain’t gonna use it. When RSS becomes virtually automatic and invisible, sometime down the road, then people will use and love it, because it’s a great technology. But not until then.

In fact, here’s a handy rule of thumb I use when considering whether a particular technology is truly catching on: if it’s not being used as a verb, it’s not there yet.

“Xerox this document.”
“Redline my draft.”
“E-mail her the file.”
“Google the reference.”
“IM me.” (That one’s for all the kids out there.)

Any others? I once heard someone try to use “Blackberry” as a verb, but it’s too cumbersome (it’s a measure of the Blackberry’s value that it became so popular with such a lousy name). But that’s about it. Litigators don't say, “Summation the file” or "Quicklaw the case."

I think lawyers are just like most people when it comes to technology, except we like it even less. Apart from a few innovative souls, lawyers seem to break down into two groups: those for whom tech is a necessary evil, and those for whom it’s an unnecessary evil.

Part of the reason lawyers don’t really like cool new technology might be that we usually end up using it in ways that reinforce bad old habits. There are loads of time and billing programs on the market that will allow you to record the tiniest fraction of an hour spent on a file – which is a little like giving your stalker a detailed itinerary of how you plan to spend your day. The same software will also track every single disbursement on a file, and won’t the client be delighted that you were able to bill her for that extra photocopy? Blackberrys, cellphones and remote access software ensure that your employer can reach you anywhere, anytime, so forget about finding any peace of mind at the cottage.

But I think the main reason lawyers haven’t thrown a welcome party for technology is that we think all it’s really done is make things faster, more stressful, and not much more profitable. Fair enough: sometimes, it seems the only thing e-mail has brought lawyers, besides spam, is clients who send you a question at 10:00 and then phone at 10:05 wondering why you haven’t responded yet. Speed is up, and expected response time is way down.

Jim Calloway touched on this in a great article, “Technology, Stress and the Lawyer's Quality of Life,” at the Oklahoma Bar Association’s Management Assistance Program site last year. “The role of technology is to do it faster,” he said. “If you let technology set your pace, it will be faster and faster. To survive in a law practice for a career, you have to learn how to set your own pace.”

That wouldn’t be as much of a problem if lawyers were actually in charge of their own professional schedules. But as I suggested in an editorial for National last year, we’re not – the clock is.

“Thanks to the billable hour, speed has become a matter not only of pace for lawyers, but also of volume. It’s not just the hour you spend at the office — it’s how much billable activity you can cram feverishly into that hour. Lawyers fear wasting a single drop of time; it’s the fuel that powers their revenue. The faster they work, the more ‘efficient’ the fuel becomes — and never mind the damage to the ‘vehicle.’

Ideally, the speed-related demands that technology has enabled would motivate the legal profession to seriously reconsider some of its ways of doing things. It’s difficult to keep selling your services on the basis of “time spent” when the speed of technology has made time less relevant to much of the work that we do. But as I said on Monday, lawyers have always been late adopters of new methods and technologies, and we haven't yet figured out to how to recalculate our value proposition for the Internet age. Meanwhile, the waters keep rising.

“You need to adopt a triage approach to the flood of information that you receive every day,” said Jim Calloway. “You cannot handle it all. You must practice prioritization, which may be the most important job and life skill of the 21st century.” I think that’s exactly right. How about you?

]]> http://www.slaw.ca/2006/09/27/technology-and-the-21st-century-lawyer/feed/ 4 http://www.slaw.ca/2006/09/26/legal-publishing-in-the-21st-century/ http://www.slaw.ca/2006/09/26/legal-publishing-in-the-21st-century/#comments Tue, 26 Sep 2006 13:40:56 +0000 Jordan Furlong http://www.slaw.ca/?p=1314 I’ve been a lawyer in Toronto now for four years. Over this time, a lot of law magazines, newspapers and newsletters have crossed my desk. Even though these are publications for lawyers, I never feel like they are really talking to me. They always feel a little old, a little earnest and, well, a little boring.

That’s not me talking — these are the words of Melissa Kluger, Editor-in-Chief of a new blog titled “Precedent: The New Rules of Law and Style.” It’s pretty good — entertaining and thoughtful, and that's a tough combination to pull off. Hers is another . . . [more]

]]> I’ve been a lawyer in Toronto now for four years. Over this time, a lot of law magazines, newspapers and newsletters have crossed my desk. Even though these are publications for lawyers, I never feel like they are really talking to me. They always feel a little old, a little earnest and, well, a little boring.

That’s not me talking — these are the words of Melissa Kluger, Editor-in-Chief of a new blog titled “Precedent: The New Rules of Law and Style.” It’s pretty good — entertaining and thoughtful, and that's a tough combination to pull off. Hers is another fresh voice in the legal blog world.

But I was struck by her quote above, since I suspect she’s not the only lawyer who finds the publications offered to Canada’s lawyers old, earnest and boring (three characteristics my daughter will someday ascribe to me; I suspect I’ve got the second and third down already). Here’s a brief look at the major national and regional legal periodicals:

Magazines: National, Canadian Lawyer, Lexpert, The Advocate (B.C.).
Newspapers: The Lawyers Weekly, Law Times (Ontario), Le Journal Du Barreau (Quebec)
Newsletters: a couple dozen, including offerings from CBA branches, law societies, publishing companies and even law firms. A growing number are distributed by e-mail.

Let me know if I’ve missed any entries in the list above. This doesn't include foreign titles like the ABA Journal, Law Practice, The Lawyer (UK), etc.

I edit National, I used to edit Lawyers Weekly, and I read all the others regularly. And you know what? Melissa’s not wrong. Each of these publications has its strengths, but “young, irreverent and hip” are not words you’d use to describe any of them. Among editors, I may be the youngest of the lot, and I’m perilously close to turning 40.

These periodicals are produced by bar associations, law societies and legal publishers — all conservative and risk-averse by nature. Melissa’s demographic cohort is not looking for conservative and risk-averse. But that’s only part of the problem.

It’s not easy to produce a legal periodical these days — printing costs are skyrocketing, mailing costs are spacerocketing, younger readers are migrating to other media formats, and advertising dollars are more and more difficult to find. I’m not privy to publishing executives’ chats, but I imagine a few of these conversations concern the possibility (hope?) that one or more periodicals will fall by the wayside and reduce the number of competitors.

Not only don't I think that will happen, I don’t think that should happen. We don’t have nearly enough legal publishing and legal journalism outlets in this country, because there are hundreds of important and interesting stories that go untold every year.

When I was at TLW, I would read scores of interesting court decisions every week, knowing that only a fraction of them would make it into the newspaper — at 20 pages a week, a fraction is all you can squeeze in. Here at National, our file folders are bulging with story ideas that deserve exploration, from practice-related tips to major international trends to controversial investigations — but we publish only eight times a year, and both space and resources are limited. We're all starting to produce online content, but it's still just a trickle compared to the potential torrent.

As Thanksgiving diners can attest, when supply is bursting at the seams, it forces open new channels of escape. The Internet is busting the legal publishing marketplace wide open, and it’s people like Melissa Kluger, Rob Hyndman, and the good people of SLAW who are breaking down the doors.

Legal publishers need to understand that the number of competitors is not going to shrink — it’s going to multiply tenfold. And these competitors won’t have overhead, distribution, payroll or marketing costs to deal with — they’ll write when they want to, promote themselves by word of mouth, sell as much focused advertising as they like, and establish themselves as individual brand-name forces. Seth Godin is right: blogs are going to create thousands of expert media outlets with a total staff complement of one. It's already started.

What does this have to with you, the 21st-century lawyer? Two things. First, the day is soon coming when you won’t have to accept whatever the legal publishers decide you should know about. You can order tailored, in-depth legal news delivered to your desktop, be it through RSS feeds from the local courthouse, Yahoo! legal newsgroup postings, or a free e-newsletter from a sole practitioner outside Winnipeg who tracks the federal child support guidelines religiously.

Second, you should take the opportunity right now to become one of those publishers. As Troy McClure so rightly said, “It’s remarkably easy!” All you need is excellent knowledge of your subject area, a real interest in talking about it, and a ten-minute introduction to blogging. Ask Mike Fitzgibbon, David Fraser, Christine Mingie, or any of the bloggers on Steve Matthews’ list — they're the vanguard of tomorrow’s legal periodical publisher.

Ten years from now — maybe sooner — that list of magazines and newspapers I provided earlier is going to seem archaic. The doors to the legal publishing marketplace are swinging wide.

]]> http://www.slaw.ca/2006/09/26/legal-publishing-in-the-21st-century/feed/ 10 http://www.slaw.ca/2006/09/25/innovation-and-the-21st-century-lawyer/ http://www.slaw.ca/2006/09/25/innovation-and-the-21st-century-lawyer/#comments Mon, 25 Sep 2006 13:50:02 +0000 Jordan Furlong http://www.slaw.ca/?p=1312 As Simon F mentioned on Friday, I had the great fortune to attend the annual meeting of the College of Law Practice Management in San Francisco earlier this month. The topic of the day was at the heart of 21st-century lawyering: innovation. Specifically, why lawyers aren’t very good at it.

One of the delegates made an important distinction at the start. When it comes to actual legal work, lawyers can innovate like crazy. Corporate lawyers have designed some of the most innovative (and profitable) financial instruments around; litigators are always finding new angles from which to argue cases, and so . . . [more]

]]> As Simon F mentioned on Friday, I had the great fortune to attend the annual meeting of the College of Law Practice Management in San Francisco earlier this month. The topic of the day was at the heart of 21st-century lawyering: innovation. Specifically, why lawyers aren’t very good at it.

One of the delegates made an important distinction at the start. When it comes to actual legal work, lawyers can innovate like crazy. Corporate lawyers have designed some of the most innovative (and profitable) financial instruments around; litigators are always finding new angles from which to argue cases, and so on. Where we have trouble innovating is in our two main professional mechanisms: practice management and client relations.

I’ll leave the first one alone — that's a whole other steamship of fish — and go after the second: how lawyers relate to their clients and deliver services to them. It’s pretty apparent that lawyers’ relationships with clients could use, shall we say, a little sprucing up.

It seems to me that legal service delivery, and client relationships generally, are pretty much the same today as they were 25 years ago. What have lawyers been doing differently in their client relations since 1981? Industry-wide, there's client newsletters. Individually, some lawyers have successfully unbundled their legal services. A few high-tech lawyers with start-up clients take shares in the company in lieu of fees, where permitted. Some firms have made real commitments to flat-fee and alternative billing systems. Have I missed others?

By and large, though, these are the exceptions. The rule for most lawyer-client relationships continues to be standard hourly billing, infrequent communication, spotty follow-up after the file closes, and a preference for solving problems rather than preventing them beforehand. And the clients don't love it. Invariably, their chief complaints about lawyers are "failing to respond to inquiries" and "failing to follow instructions." These don't have anything to do with the quality of the lawyer's work, but with how lawyers interact with clients.

Why do lawyers struggle to innovate in client service and relations? Here are three possibilities:

1. Innovation requires a high failure rate. You know Edison’s famous line about the value he found in thousands of failed attempts to invent something: they’d taught him thousands of ways not to invent it? Lawyers are 180 degrees from there. We hate failure, and we’re economically and culturally programmed to avoid it wherever possible. I think the risk of upsetting the applecart by trying something different is too much for most of us.

2. Innovation also requires a competitive marketplace. David Maister noted (correctly) that lawyers only compete with other lawyers, and few lawyers are in a rush to reform their client relations. If a major law firm (a) revamped its entire approach to client relations and (b) showed a substantial profit from doing so, that might get some people’s attention. But lawyers are late adopters of new methods at the best of times, and the watershed point on this sort of innovation would take awhile to reach.

3. Many lawyers just don’t see the need, maybe because we often don't really get clients. We think clients want expertise and perfect accuracy. Clients expect that, sure — but they really want to know what’s going on with their file and to get their calls returned quickly. A lot of us don’t understand this, and so we de-emphasize the human side of the relationship. Too often, we see clients as problem carriers first, people second — and it’s the problems that really interest us.

So if lawyers are disinclined to innovate in client relationships, is there any reason to believe change will happen? Will the 21st-century lawyer be motivated (or forced) to innovate? I think that’ll be up to the clients. For those of us with a strong interest in lawyer-client relationships, clients have been our Godot: we keep waiting for them to show up and get things rolling. By and large, we’re still waiting.

Most clients — one-time or first-time customers, often in the dark about (and a little intimidated by) dealing with a lawyer — have little knowledge and even less leverage with which to establish a better relationship with their lawyers. It’s been the more sophisticated clients — usually institutional, experienced in buying legal services, and with a lot of purchasing power — that we thought would lead the change. But while corporate clients often complain about their outside law firms, few outside of Dupont headquarters have turned that into meaningful action.

One managing partner at the COLPM conference told this story: his firm offered a major corporate client a range of billing alternatives, including a reduced rate and performance-triggered bonuses that would align the law firm's risks and rewards with the client's. No thanks, came the reply. We’ll take the safe, predictable, billable hours route. I don’t think this is a rare occurrence: when firms do try to be innovative, they’ve often found clients reluctant to go along. Can readers provide any similar (or opposite) experiences?

I’d love to see lawyers reform the way they deliver their services: I think clients would be more satisfied and lawyers would be happier (and more profitable). But lawyers don’t innovate well at the best of times, and we’re currently under no pressure from the three key players — the client marketplace, the competition, and professional regulators — to change our ways. So I don’t think it’s going to happen tomorrow — but as soon as any of those three players start exerting pressure, all bets are off.

That’s my take, anyway. What’s yours?

]]> http://www.slaw.ca/2006/09/25/innovation-and-the-21st-century-lawyer/feed/ 4