Lawyers like to define terms, so how do they define themselves? The American Bar Association (ABA) describes a lawyer as: “a licensed professional who advises and represents others in legal matters.“ This description raises more questions than it answers and fails the ‘void for vagueness’ standard. Here are some key questions that frame a more meaningful definition of a lawyer: (1) what is a ‘legal matter’? (2) Who makes that call? (3) when are lawyers required? (4) what differentiates a lawyer from other resources—human and machine—in the legal supply chain? (5) why can’t most individuals and small businesses afford lawyers? (6) is there a difference between the practice of law and the delivery of legal services? (7) is the legal profession the same as the legal industry? and (8) what purpose do lawyers serve?
Expanding and Refining the ABA Definition of Lawyers
Lawyers are licensed and must demonstrate a basic grasp of legal knowledge and ethical rules. This does not mean, however, that they are ‘professionals’ upon securing licensure. That’s one of law’s great challenges: to ensure that newly-minted and early-career attorneys possess basic practice skills--the ability to draft contracts and pleadings, interview a client, etc. But practice skills are no longer enough; lawyers must also understand the tools that drive more efficient delivery of legal services to clients/consumers-- business fluency, understanding technology’s role in legal delivery, project management, basic data analytics, and an ability to collaborate, among others. ‘Just knowing the law’ does not cut it for lawyers anymore, nor will clients any longer subsidize their on-the-job training. What can be done to remedy the misalignment between the Academy and the marketplace?
Law schools must better prepare graduates for the marketplace, but they face a litany of obstacles. The ABA controls U.S. law school accreditation and proscribes curriculum requirements. Several incremental changes in law school curricula have been effected in recent years, but there remains a significant divide between what law schools teach and what the marketplace demands of graduates. Most law schools remain focused on doctrinal learning, rankings, LSAT scores, GPA’s, and faculty ‘scholarship.’ The Academy does not produce practice and market-ready graduates equipped to address the industry’s wicked problems: defending the rule of law, ending the access to justice crisis, advancing diversity, and participating in a global effort to advance human rights. The culture of the Academy is part of the problem-- detachment from the marketplace, a predominance of tenured faculty with little or no practice experience, minimal interaction with other disciplines—notably engineering, business, and computer science—within the University, and insular, homogeneous tenured faculties enamored of tradition and wary of innovation.
The ABA’s deference to tried-but-no-longer-true curricula and antiquated legal self-regulation is in marked contrast to the progressive, market-responsive reforms enacted by the UK’s Solicitors Regulatory Authority (SRA). The SRA recently widened the road to solicitor licensure with its ‘Super Exam’ (SQE). The SQE is skewed towards experiential and competency-based learning, not ‘butts in seats earning degrees.’ The SQE focuses on output—professionals prepared to serve the public upon securing licensure, not input-- debt-ridden students hoping to acquire high-paying gigs to pay down student loans. The SRA has done away with the law school requirement, allowing candidates to master doctrinal law by other—and less expensive—means if they choose. The SRA’s bold reregulation of legal ownership, structure, and management (alternative business structures a/k/a ‘ABS’) and legal education was premised on the regulatory body’s mission to ensure the public is better served by the legal industry. This underscores the social compact lawyers enter into to represent individual clients as well as society at large. The societal obligation is especially important at a time when the rule of law is under attack and legal service is out of reach for most of the population.
The ABA definition of a lawyer references representation ‘in legal matters.’ That sidesteps what constitutes a ‘legal matter’. Until the past couple decades, lawyers were the arbiters. Law firms were the dominant legal provider source, handling matters from start to finish. This suited their brute force, labor intensive economic model that treated all issues with a ‘no stone unturned’ pursuit of perfection and lots of billed hours. That’s changed; clients—not law firms-- now determine the value of matters, when lawyers (and law firms) are required, from what structure (in-house, law firm, or service provider) legal services are provided, and at what price point. Legal consumers regard ‘legal matters’ as business challenges that raise legal issues. That means consumers—not lawyers—are now driving the bus.
What caused the seismic change in consumer mindset? The global financial crisis of 2007 created a reboot of the buy/sell dynamic of goods and services across multiple industries. It gave rise to the expectation of ‘better, faster, cheaper’ solutions. This elevated expectation, coupled with an explosion of technological innovation and impact, has resulted in the disruption of incumbent delivery models across multiple industries—retail, ride hailing, hospitality, etc. The move to digitization and new delivery models that provide consumers greater accessibility, choice, transparency, and value is beginning to transform legal delivery. Even lawyer hubris cannot stanch the powerful forces driving this pan-industry transformation.
Legal practice—core differentiated expertise, skills, and judgment—remains the exclusive province of lawyers. But it is shrinking as digitalization is bent on automating, standardizing, and routinizing all but those ‘practice’ tasks. Everything else is sourced to lower-priced, equally efficient resources—human and/or machine. Legal delivery—the technology and process that leverages practice and enables machines and other professionals and paraprofessionals to conduct a growing list of ‘legal’ tasks formerly performed by lawyers—is expanding.
Fewer lawyers will have traditional ‘practice’ careers, and many will work in hybrid practice/delivery roles that require a combination of practice and delivery skills. Legal delivery is not simply about lawyers anymore, and ‘just knowing the law’ is an insufficient toolkit for lawyers to function effectively in the new legal marketplace. Likewise, other professionals and paraprofessionals—not to mention machines—are now key providers of legal services. Legal culture must embrace these collaborators, not encourage the maintenance of regulatory roadblocks. Those barriers are already being circumvented with the full support of consumers eager for greater access, more efficient delivery, more customer-centric, and lower priced legal service providers.
The Legal Profession and The Legal Industry
Law is rife with dualities. Lawyers represent two clients simultaneously--those that retain them and society at large. Legal ‘practice’ refers to the core differentiated judgments and skills (trial work, M&A advice) that lawyers provide, and ‘legal delivery’ is the business of delivering legal services in a more efficient manner (think: ‘legal operations’). The legal ‘profession’ focuses on practice, and the ‘legal industry’—pegged at $1 Trillion annual global spend—refers to the business of delivering legal services. Legal culture is rooted in a mindset of ‘lawyers versus non-lawyers’ where lawyers are dominant and set the rules. But the marketplace is demanding a very different culture, one where the profession is subsumed by an efficient, consumer-centric delivery. And if this sounds foreign, consider the metamorphosis of medical practice to healthcare delivery.
The practice of law is being distilled to its essence; lawyers are returning to the core tasks they once performed—counseling clients, exercising judgment that synthesizes knowledge of client risk tolerance and objectives, legal expertise, business acumen, and the ability to persuade. Many lawyers once engaged in ‘practice’ will leverage their legal training and work on legal delivery--business of law--matters. They will be engaged by corporate providers with tech and process enabled delivery models that are client-centric, multi-disciplinary-- deploying lawyers, other professionals and paraprofessionals and machines-- in a proactive, data-driven fashion at lower cost and with ease of access to consumers.
Lawyers and Machines
Technology has a huge impact upon the delivery of legal services and the structures from which they are delivered. But it will not replace lawyers. Why? There are three kinds of intelligence at work in the legal marketplace: IQ, EQ (emotional intelligence a/k/a ‘people skills), and AI (artificial intelligence). Lawyers and machines have high IQ. What separates lawyers from machines is the core of what good lawyers do: persuade. Legal practice is ‘the persuasion business’—whether the lawyer engages in litigation or commercial transactions. Lawyers ‘persuade’ clients to retain them, opposing counsel that they are highly capable, and tribunals that they are well-versed, and zealous, ethical advocates. This requires a combination of IQ and EQ. That’s the edge that lawyers have over machines. When was the last time you were comforted by a machine? Ironically, the pervasive use of technology is placing greater importance on ‘EQ’ and the ‘soft skills’ that accompany it. This is another overlooked element of legal education.
Lawyers and machines are collaborators, not mortal enemies. Machines will impact what tasks lawyers perform and will have economic consequences on the profession. They will also enable the legal industry to solve some wicked problems like the access to justice crisis.
Good lawyers are problem solvers. They do so by fusing differentiated legal judgment with persuasion, ethical compliance, and humanity. They also commit to upholding the rule of law by serving society and instilling respect for the legal process, a cornerstone of democracy. Lawyers possess the tools to represent millions of new legal consumers. Doing so will be good for business and essential to defending democratic principles. Failure to act could result in ‘the death of lawyers’ and the end of life as we know it.
More from Mark A. Cohen you'll find in our Thought Leader Section and via the links below. Articles by Mark are also published at Forbes and on his platform LegalMosaic.