Law’s Challenges Are Global. A Broader Perspective Would Help Solve Them
I recently had a long conversation with Iohann Le Frapper, a French lawyer and Board Chair of the Association of Corporate Counsel (ACC). We identified several common challenges confronting lawyers — legal education and new skillsets, access to justice, technology and globalization yielding automation and labor arbitrage, the ‘gig economy,’ ethical challenges, and new models of legal delivery. These issues transcend geography or regulations. They are global challenges whose solution demands a broader perspective.
The legal profession is territorial. Regulation has focused on protecting lawyers from outside competition (read: new delivery models) rather than serving the public. That no longer works for a number of reasons, not least of which is that IT and globalization have created profound changes in the way people work. This is not a national phenomenon; it is global. And if you doubt that, consider ‘Brexit’, the recent US election, and the rise of populism across the globe. The collision of globalization and a xenophobic form of nationalism by the displaced wanting to ‘turn the clock back’ is creating instability. Add that to the list of common challenges confronting the legal profession– it must protect and preserve the rule of law. That requires a global perspective. What, then, can the legal profession do to address its big challenges? Short answer: see what works across the globe and adapt it; focus on solutions, not regulatory barriers; and collaborate with technologists, process experts, and other ‘non-lawyers’ to identify and implement more accessible, efficient, and cost effective ways to deliver legal services. Here are some suggested areas of focus. Legal education must be better aligned with student and market needs. This involves two key components for legal training:
1. Acquiring new skills necessary to function successfully in the marketplace;
2. Gaining practical experience in advance of market entry.
Knowledge of the law is no longer the sole requisite for attorneys; they must also be conversant in how technology and process affect its efficient delivery. These new skillsets must be integrated into legal education. Lawyers must also learn to work collaboratively—with their peers as well as with other professionals and paraprofessionals. Doctors are a useful model; they collaborate with technicians, paraprofessionals, and other specialists to render health care services. Law students, likewise, must acquire practical skills to be more ‘practice ready’ when they hit the marketplace. Access to justice is a legal pandemic that threatens to undermine the rule of law. As my friend Eddie Hartman, a co-founder of LegalZoom has noted, imagine if eight-five percent of people were unable to secure healthcare even when they are acutely ill—that’s the situation with legal representation. Technology, process, an underutilized supply of legal talent, and a huge potential (paying) client base can help resolve the crisis. Simply put, law has a distribution problem. Derek Bok, the former President of Harvard and dean of its law school put it this way: ‘There is far too much law for those who can afford it and far too little for those who cannot.’ The rule of law cannot withstand this imbalance. Technology and globalization have transformed the way people live and work. Automation and labor arbitrage have promoted efficiencies– at an enormous personal and societal cost for the tens of millions it has displaced. This has fueled the rise of populist movements around the globe. Social media, history’s largest megaphone, has also contributed to the unprecedented spread of misinformation and hatred. All this has put enormous stress on existing institutions and democratic freedoms. It has spawned what President Obama recently described as a ‘crude sort of nationalism’ that is taking hold in the US and elsewhere. Lawyers– the last defenders of civil liberties– must step up to insure that the rule of law is maintained. And while this is typically seen as a national issue, recent events confirm that it has global implications. Technology and globalization have also spawned the ‘gig economy’—enabling workers (especially knowledge-based ones) to work remotely, on demand, and in a more ‘agile’ fashion. Forty years ago, lawyers averaged two jobs during their career. Today, that number is seven. And that does not take into account the rapidly growing number of lawyers around the globe who work on a ‘gig’ basis, substituting project-based work for permanent employment. This presents challenges and opportunities. The challenge is to align the underutilized legal supply with the underserved population in need of their services on an affordable, easily accessible basis (think: Uber). The opportunity is that technology, process, and new deliver models can make that happen. Law firms are taxicabs in the age of Uber. New delivery models—delivered on a global basis with local oversight—are on the horizon. But to make this happen, a broader, global view is required. The ‘gig’ economy, social media, new legal delivery models, and the ‘dual roles’ of in-house counsel are creating an array of ethics issues for lawyers–especially those who ply their trade outside the traditional law firm setting. Ethics rules are generally crafted in a ‘one size fits all’ fashion that lags marketplace changes. As legal careers morph from the ‘law firm default’ to less ‘law-centric’ roles, when is an attorney acting as one to come within the ambit of ethics rules? The ascendancy of corporate legal departments (‘in-house’) has reshaped the profession in many profound ways on a global basis. Historically, they have been legal consumers, overseeing the work of law firms to whom they outsourced work. Now, they do much of that work themselves (albeit with departments that also include many non-lawyers performing key tasks and functions); corporate legal departments now account for approximately 40% of legal spend. They oversee law firms and a vast legal supply chain that includes a myriad of service providers, many of whom operate internationally. And, perhaps most significantly in the context of ethics, they wear two hats for their client/employer. The first and more traditional one is as the last defender of the company and its brand. But equally important is their role as ‘business partners’ to the enterprise, advancing its key objectives. This dual role presents new ethical challenges for which a global approach is best suited, especially since so many of these companies engage in business across multiple sovereign nations. The architecture of new legal delivery models is another issue that transcends national borders and regulations. Legal regulation has traditionally focused on protecting lawyers from competition. This worked when lawyers had a monopoly on what they sold– legal expertise (as well as access to legal sources). That’s why law firms were the only game in town. Technology and globalization changed all that, and now legal delivery is a three-legged stool that includes legal, IT, and process expertise. And that resulted in disaggregation and the rise of legal service providers. This has created a distinction between legal practice and legal delivery. Legal practice—what lawyers do—is no longer synonymous with legal delivery—how, by whom, and from what structure legal services are delivered. This has rendered the protectionist regulations obsolete. And that’s why the UK, Australia, and other developed economies have re-regulated the legal industry to protect the public, not lawyers. It’s not the structure from which legal services are performed that matters so much as who does what; with what level of expertise and oversight; and at what price. This is not a question of how law is practiced but how it is delivered most efficiently, and that is a global inquiry. Conclusion The changes in legal delivery and the inability of a large percentage of the population to access a glut of legal supply are emblematic of broader global change. Law is the glue that binds society, and lawyers are the artisans that apply it. The issue is not how lawyers ply their craft but how to devise structures that better align them with those in need of their services. This requires rethinking legal education, harnessing technology and process to promote access, affordability, and (more) equal justice, and creating new models that better align the interests of those who deliver legal services with those in need of them. These are global challenges, not national ones. It’s time lawyers take a broader perspective of their profession and its role in a rapidly changing world.
This post was originally published by Forbes