Jan 24, 2011 Elizabeth Chambliss
John Briton & Scott McLean,
Lawyer Regulation, Consciousness Raising, and Social Science (summary in
Geo. J. Legal Ethics, forthcoming 2011); Christine Parker & Lyn Aitken,
The Queensland “Workplace Culture Check”: Learning from Reflection on Ethics Inside Law Firms (
Geo. J. Legal Ethics, forthcoming 2011).
The American Bar Association Ethics 20-20 Commission should pay some serious attention to Australia. With the Legal Services Act 2007 slated to come into full effect on October 6, 2011, with the licensing of Alternative Business Structures for law practice in England and Wales, all eyes—well, some keen eyes, anyway—have been on the U.K. and its establishment of a regulatory framework for these new organizational forms. But Australia has been regulating “alternative business structures” since 2001, when New South Wales became the first state to allow incorporated law practices (ILPs). Australia’s National Legal Profession Model Bill 2006 includes provisions allowing law firms to have non-lawyer directors and shareholders, and Australia, so far, has the only experience regulating publicly listed law firms. Australia,therefore, has a head start in thinking about the regulation of law practice organizations, whether they be traditional partnerships or alternative, corporate, forms.
Perhaps the most laudable feature of the emerging Australian model is its emphasis on law firm self-assessment and the collaboration this engenders between regulators, researchers, and firms. This collaboration was on full display at the 2010 International Legal Ethics Conference, in a pair of papers analyzing the data on law firm self-assessment, one from a regulatory and the other from a research perspective.
The first was a paper by John Briton, the Queensland Legal Services Commissioner and his colleague, Scott McLean, describing Australia’s strategy for regulating ILPs, which currently make up about 20% of law practice organizations in Queensland and New South Wales (Briton & McLean, p. 5). The centerpiece of the strategy is the move from a reactive, complaint-driven approach to a preventive approach that focuses “not only on lawyers but also on law practices and their management systems and supervisory arrangements—their ethical infrastructure” (pp. 3-4). The primary tool in this preventive, entity-oriented approach is a system of enforced self-assessment by firms through: (1) a requirement that ILPs designate a “legal practitioner director” to be personally responsible for implementing appropriate management systemsin the firm (p. 6); and (2) a requirement that legal practitioner directors conduct self-assessment audits to measure the effectiveness of firm management systems and internal ethics controls. This system of self-assessment is backed up by external audits through web-based surveys and on-site reviews (p. 10). Briton and McLean predict that “this same or a very similar regulatory framework will soon apply to all law practices in Australia.”
Not surprisingly, lawyers initially resisted the requirement of self-assessment—not to mention external audits—fearing that regulators would attempt to dictate one-size-fits-all structures for firms; and some bar groups oppose the extension of self-assessment requirements to traditional law firms (p. 8). In practice, however, enforced self-assessment has proven “hugely successful by any measure” (p. 11). Based on an analysis of data from 631 ILPs, Professor Christine Parker of Melbourne University Law School found that the complaint rate per practitioner per year in ILPs after self-assessment is one third the complaint rate before self-assessment, and one third the complaint rate for practitioners in traditionally structured firms (p. 11). Moreover, firms report that the process of self-assessment is “very useful” and “created robust discussion around the partnership table” (p. 15). As Briton and McLean conclude, “the simple act of requiring a law practice’s principals to take time out to stock-take just how well their management systems and supervisory arrangements support the practice and its people to deliver competent and ethical services—the simple act of prompting them to reflect on the adequacy of their ethical infrastructure—dramatically improves standards of conduct within their practice.” For anyone who doubts this account, the feedback from firms is posted on the Commission’s website.
An additional benefit of enforced self-assessment by law practice organizations is the production of rich, firm-level data for research and scholarship on the profession. The second paper, by Christine Parker and Lyn Aitken of the Queensland Legal Services Commission, shows how useful such data can be for analyzing the dynamics of law firm ethical culture (and subcultures) and testing competing theories of law firm regulation. Parker and Aitken’s analysis is based on data from 15 law firms that participated in the Queensland Legal Services Commission “Workplace Culture Check,” a short, on-line survey of lawyers’ perceptions about the availability and effectiveness of ethics supports within firms (Parker & Aitken, pp. 9-10). Fifteen law firms were invited to participate in the survey and all accepted, yielding 336 lawyer respondents (p. 16).
The most striking finding from Parker & Aitken’s analysis is the difference between junior and senior lawyers’ perceptions of ethics supports within firms and perceptions of their own capacity to raise ethical issues (p. 1). Among junior lawyers, only 44% said that they are always “able to raise ethical issues in confidence,” compared to 75% percent of senior lawyers (p. 25). Junior lawyers were also less likely to know where to turn for ethical advice, and to report that their ethical concerns are given consideration in the firm. Among junior lawyers, less than 40% said that their ethical concerns are always given consideration, compared to nearly 80% of senior lawyers (p. 25). Parker & Aitken consider a number of possible explanations for such differences, including the general tendency of lower-level employees to view their organizations less positively than upper-level employees and managers (p. 26). Such differences, however, are nevertheless important for law firm managers to understand. Thus, as part of the survey, the Legal Services Commission debriefed the 15 participating law firms, in an effort to “encourage critical ethical reflection and discussion” (p. 33). Such collaboration promises to significantly improve both law firm regulation and scholarship on profession.
The U.S. has been slow to regulate—or manage—law firms as entities, even as the average size of law firms has grown exponentially. Opponents fear that the centralization and delegation of specialized management authority will undermine the accountability and authority of individual partners. Currently, only New York and New Jersey provide for entity regulation in their rules of professional conduct. Mounting evidence, however, shows that the designation of in-house compliance specialists and routine self-assessment by law practice organizations has tremendous benefits for law firms and the clients they serve, as well as promoting collaboration between regulators, researchers and firms. U.S. regulators and firms should take notice. If the legal profession is to maintain a credible claim to effective self-regulation, it is time to adopt a proactive, entity-oriented approach, backed up by regulatory authority and rigorous empirical research.
Cite as: Elizabeth Chambliss,
Queensland Law Firms Partner with Regulators and Researchers to Improve Firms’ Ethical Culture, JOTWELL
(January 24, 2011) (reviewing John Briton & Scott McLean,
Lawyer Regulation, Consciousness Raising, and Social Science (summary in
Geo. J. Legal Ethics, forthcoming 2011); Christine Parker & Lyn Aitken,
The Queensland “Workplace Culture Check”: Learning from Reflection on Ethics Inside Law Firms (
Geo. J. Legal Ethics, forthcoming 2011)),
https://legalpro.jotwell.com/queensland-law-firms-partner-with-regulators-and-researchers-to-improve-firms-ethical-culture/.
Dec 15, 2010 Kay-Wah Chan
Carole Silver,
What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43
Akron L. Rev. 1009 (2010), available at
HeinOnline.
Carole Silver is one of the scholars who actively researches and writes on the legal profession in the context of globalization. However, as Silver in this recent article reminds us, there still are many unexplored issues and unidentified data. In this article, researchers will find an abundant source of research ideas. Silver first stresses the significance of “sound empirical evidence” (p. 1014) for policy-makers when they formulate the regulatory framework. She then goes on to identify the actors and activities to be investigated and the relevant data to be collected. In addition, she also suggests possible organization(s) to house the research.
Although Silver writes from an American perspective, the research framework that she suggests, with relevant modifications/adjustments, can be adopted for other jurisdictions. Similar data-collection and research conducted in the main economies and financial centers in the world—for example UK, Japan, China, Germany, Australia, Canada, Hong Kong, Singapore, France—will supplement each other and help in completing a reasonably comprehensive picture of the real situation of the legal services in the context of globalization. This will be useful for policy-making and enhance its credibility.
Globalization and technology are changing both the organization and practice of law. Lawyers are practicing outside their home jurisdictions either in overseas branch offices of their firms or in foreign law firms (p.1055). Some have acquired legal qualifications and practicing rights in different jurisdictions to augment their careers (id). Even for those that do not branch out to other jurisdictions, they may handle cases that involve foreign clients or foreign opposite parties as well as transnational commercial deals or disputes. Technological changes have helped drive the growth in legal process outsourcing (p.1063). These changes are now compelling legal education to consider how to equip students with the resources for globalized legal practice, which could lead to law schools themselves becoming globalized.
These developments provide fertile ground for research. At the same time, they pose challenges to regulatory regimes (p.1010). There is a need to re-examine existing frameworks. Revisions may be needed to adapt to new environments. Such re-examination and revision-making require a comprehensive understanding of the legal profession in the context of globalization (p.1015). In this respect, policy-makers must, as Silver points out, avoid “acting on the basis of speculation and assumptions” (p.1017). For example, there is an assumption that candidates taking a state bar examination have an intention to stay in the state (p.1018-19). This, however, may not always be the case in reality. For example, large Japanese commercial law firms have the practice of sending their associates to overseas (mostly US or UK) law schools to study for LLMs (Kay-Wah Chan, Foreign Law Firms: Implications for Professional Legal Education in Japan, 10(20) Z JapanR (J. Japan. L.) (2005) 55, at 75-6. Many of these associates have also taken bar examinations to gain American qualifications before they return to Japan. Masahiro Murakami, Hôritsuka no Tame no Kyariaron (Career Theory for Legal Experts) (PHP Kenkyûsho, 2005), at pp.114-16. Therefore, to have credibility, the formulation of regulatory systems must be based on “sound empirical evidence” (p.1014). Systems which are formulated this way will more likely address “real problems rather than phantom concerns” (p.1020). Sound empirical evidence is however lacking or insufficient now. Further, in this era of globalization and rapid technological development, the world of legal services is changing rapidly. Therefore, “regular updating” is necessary (p.1017 and pp.1073-74).
After highlighting the significance of empirical research on the legal profession (and related players such as law schools), Silver identifies issues to be explored and data to be collected. She systematically categorizes the relevant actors and activities. Services are separated into the “inbound” and “outbound” categories. Data to be collected are then listed against the five categorized actors: state regulators, which include the licensing and disciplinary authorities [p.1027]; law schools; individual lawyers; law firms; and clients. The lists Silver compiles provide abundant ideas for research projects. Collection and analysis of all these data will require experienced experts as well as institutional and financial support (pp. 1073-78). Hopefully, there will be such support and the suggested project can be conducted, not only in the USA, but also in as many other jurisdictions as possible. The conduct of parallel research in different jurisdictions can also serve the purpose of facilitating collaboration and mutual understanding among scholars and researchers from different places. Collaboration and mutual understanding are important in globalization, when countries become increasingly “borderless” and multicultural in the midst of the active human, capital and information flow.
Cite as: Kay-Wah Chan,
The More We Know, the More We Know We Don’t Know, JOTWELL
(December 15, 2010) (reviewing Carole Silver,
What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43
Akron L. Rev. 1009 (2010), available at HeinOnline),
https://legalpro.jotwell.com/the-more-we-know-the-more-we-know-we-dont-know/.
Nov 3, 2010 Christine Parker
John Flood,
The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation, 59
Current Sociology 2011,
available at SSRN.
Lawyers and legal academics, especially in the US, have been very interested in the radical changes taking place to the regulation of the legal profession in England and Wales. These reforms will allow alternative “business structures” for law firms and put in place an independent “super-regulator” overseeing the legal profession. Similar reforms have already been instituted in Australia, generating their own share of interest. Much of the debate has focused on the possibilities of law firms incorporating and publicly listing their shares. The most strident proponents of the new regulation welcome it as important economic innovation, while critics herald these developments as the collapse of the profession as we know it.
John Flood’s paper, “The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation”, forthcoming in Current Sociology and currently available on SSRN, provides a though-provoking analysis of how large law firms “are undermining, modifying, escaping and ultimately reconstructing professional regulation regimes.” Flood’s paper was part of an excellent panel at the International Legal Ethics Conference in Stanford in July 2010, which included papers by Judith Maute and Andy Boon that also provided nuanced and sociologically insightful perspectives on the reforms overcoming the English legal profession.
Flood shows how the self-regulatory “bargain” or “monopoly privileges” that legal professional associations negotiated with the state – and which were the subject of much of the traditional sociological scholarship on the legal profession – are being fundamentally changed not only by the regulatory intervention of the state but by large law firms (now reconfigured as “global professional service firms”: GPSFs) themselves. Flood’s key insight is that up until now “the actors engaged in regulatory debates [about regulation of the legal profession] have been professional associations and government officials; and that the logic of ‘professional governance’ is based on trusteeship and ethics over economic gain, yet we are beginning to see an emergence of the GPSF as an institutional player in its own right [at both domestic and global levels].”
Flood describes how the individual and collective lobbying power of a group of large, global law firms based in the City of London has led not only to a more lenient approach to conflicts of interest (and information barriers) but also to the development of “Authorised Internal Regulation” (AIR). AIR is a type of recognition of the capacity of trusted — read “commercially powerful”? — law firms to self-regulate themselves at the firm level, even as the profession is losing regulatory legitimacy and self-regulatory privileges at the level of the professional associations. He also shows how these same firms are intimately involved, again at the firm, or managing partner, level, with British government efforts to break down regulatory barriers to market entry for the legal profession in countries like Brazil and India, and other impediments to globalised law practice through GATS.
We see the same pattern echoed (indeed prefigured to some extent) in Australia where the eight largest law firms now have official representation as a group on the Law Council of Australia (previously the umbrella organisation for professional associations) and have been extremely influential in introducing a range of reforms to regulation of the legal profession including allowing full incorporation and listing of law firms and the current National Legal Profession Reform Project (aimed at simplifying and reducing regulatory burdens for national firms).
Flood concludes that “[i]n this respect, large law firms have won not so much a turf battle but a class war within the profession.” He goes on to say that “[l]arge law firms have, by making the organization [i.e. the law firm] the salient unit, shifted away from traditional logics based around notions of public interest and asymmetrical relationships [between lawyers and clients] and replaced them with the logic of the market. They have created a new professional ethos.” (references omitted)
This analysis opens up an important new area of research as to the role of large law firms as institutional actors in relation to the legal profession and its regulation, what “ethos” they are (re-)creating for the profession, whether this ethos is being transmitted to smaller firms by some mechanism, or whether their ascendance is a sign of a disintegrating profession.
Jul 22, 2010 Sida Liu
When one of the world’s leading authorities on the legal profession writes about the demise of law firms, we should pay some good attention to it. Arguably, the financial crisis in 2008 changed the mindset of many law firm partners and their associates around the world, but to what extent? What lessons can law firms learn from this abrupt downturn after years of expansion both domestically and abroad? John P. Heinz’s article offers insights on the reasons of corporate law firms’ continuous expansion in the past decade and why their developmental strategies led to the failure of many firms in the financial crisis.
Large corporate law firms, despite their variations in areas of practice and professional expertise, follow similar strategies in their management. As Heinz points out, competition among law firms was heightened in the late 20th century by ready access to comparative data concerning the business of the firms. As a result, “profits per partner” has become the single most important statistic in evaluating a law firm’s performance. Indeed, a law firm chairman even described it as “our stock price” (p. 69). Heinz argues that this unitary evaluation standard has led to risky strategies in recruiting/eliminating partners and diversifying practice areas, with the goal of getting a profits per partner “higher than the next firm’s” (p. 70). When the corporate law market was booming, firms often had enough profit margins to afford those risky strategies, such as focusing on high-value financial transactions work. But now, the negative consequences are clearly seen in many large law firms across the world.
The profits per partner rule not only influences the hiring and retention of equity partners, but also junior partners, associates, and paralegals – everyone in the firm. Another impressive (and even a bit scary) quote in the article is that, as a senior partner told the author, hiring more associates and paralegals was “like printing money” (p. 71). This is because a large number of associates per partner would increase the profits per partner, as the firm pays much less to these associates than it bills the clients. Accordingly, the size of corporate law firms kept increasing to hundreds and even thousands of lawyers. And, needless to say, now many of these associates have lost their jobs. In comparison to the well-known “tournament of lawyers” rule that Galanter and Palay proposed many years ago, the profits per partner rule seems to be even more powerful, as it connects the internal and external factors of corporate law practice.
A big push behind the profits per partner tournament, as Heinz repeatedly reminds us, were the high-priced consultants who advised law firms to increase their size, open more offices abroad, specialize in high-end financial transactions, and, more importantly, “jettison routine, high-volume, ‘commoditized’ work” (p. 67). The advice sounded quite rational, given the fact that the corporate market had been expanding worldwide in the past decade or two. The problem, however, is that economic rationality only works when the economy itself is functioning well. Therefore, it is not surprising that the advices given by these consultants became much more ambiguous after the financial crisis – they told law firms to “be more efficient,” “work smarter,” and “seek to reduce costs creatively” (p. 78).
Heinz is deeply skeptical of this advice, but he does not provide any concrete alternatives. Indeed, who can? Corporate law firms are highly dependent on the corporate market to survive and make money, so when the market is in disorder, firms have few choices to maintain a good performance. Yet the vast majority of law firms are (painfully) surviving the crisis, and there are still lessons for the survivors to learn from this short article. Above all, it shows the importance of diversity for law firms, not only in terms of personnel or business, but also in terms of developmental strategies. There is no single rule of law firm growth or management, be it tournament of partnership, or profits per partner. The strength and beauty of the legal profession lie precisely in its large variety of expertise and organizational forms, even for the corporate sector which has often been regarded as the least diversified.
In addition, Heinz suggests that the excessive use of comparative statistics across firms could be toxic to law firms seeking advantages in fierce market competition. The organizational theorists, particularly the neo-institutionalists in the 1970-80s, tell us that firms in each field would become similar over time as they imitate each other’s structures and best practices, voluntarily or by coercion. But they also indicate that the isomorphic structure could become an “iron cage” for these firms – it binds them rather than liberates them. The rise and fall of the corporate law market since the late 20th century offers a great example of this process, and we are still witnessing the power of its “iron cage,” characterized by the wide use of comparative statistics and business consultants in law firm management. After the burst of the financial bubbles, hopefully firms can think more about the law, not business, when they try to manage a thousand lawyers.
Jun 14, 2010 Carole Silver
In the 1970s, during the rise of what was then known as the women’s movement, one popular T-shirt proclaimed: “I haven’t come a long way, and I’m not a baby.” It was a clever riposte to a high-profile cigarette ad campaign of the era that linked smoking and feminism. That T-shirt slogan is one that female lawyers at large firms today might want to adopt as their own.
In his new article, Eli Wald sheds light on why women in BigLaw have not yet come “a long way.” He explains that large law firms have adopted a professional ideology of hypercompetitiveness, which has transformed the firms into sites where the opportunity to pursue a balanced life is, by definition, completely absent. This is “bad news for women lawyers and for the prospect of greater gender equality in the legal profession.” (P. 2287). In fact, it’s bad news for everyone: according to Joyce Sterling and Nancy Reichman, in the same symposium, “the long hours are taking their toll on male associates as well,” which is confirmed also by Dau-Schmidt et al in the Michigan alumni study.
Wald explains that the transformation relates not only to a change in the content of the professional ideology itself, but also to the shift from the ideology being one relating to individual lawyers to it being about firms. He chronicles the development of professional ideology beginning with the Cravath firm, from “WASP ‘meritocracy,’” through “competitive meritocracy,” and to today’s hypercompetitiveness. Hypercompetitiveness is used to justify the long hours and high pay characteristic of BigLaw: “it portrayed lawyers as near-heroic servants, zealous service providers who pursue the interests of their clients around the clock. Under this new ideology, working 24/7 was considered a badge of honor, proof that lawyers were truly committed to client-centered service.” (P. 2271). Here’s the rub: “’Ideal’ candidates [must] not only … meet merit credentials but also … be willing to sacrifice personal lives, indeed to allow their professional identity to overtake and consume their personal identity.” (P. 2272).
The interaction between hypercompetitive ideology and gender stereotypes raises presumptions against women’s ability to navigate paths to advancement in BigLaw. This means that even the adoption of flexible and part-time work arrangements is a doomed strategy, because it highlights the identification of lawyers who take advantage of these programs as lacking the “total devotion and utmost loyalty to the firm and its clients.” (P. 2286). That is, without changing both underlying ideology and stereotypes, most adjustments to firm structure and policies are unlikely to lend real support to individual BigLaw lawyers, much less women lawyers at the firms. The tensions are borne out in the popular discussion of these issues on a nearly daily basis. In a recent posting on TechnoLawyer Blog titled “BigLaw: Large Firms Are From Mars, Female Lawyers Are From Venus,” for example, the dilemmas of practicing lawyers were reported as perfectly in line with Wald’s analysis: one lawyer who took advantage of a part-time program in order to spend more time with her infant son described that she “billed just as many hours, and was just as available to my colleagues and clients, as I had been before. The only difference was that I was paid less.’” In fact, partners at her firm “’were generally peevish at the notion that an associate might not be available 24/7’” – despite the firm’s part-time policy.
Wald is an astute analyst of BigLaw, and in this and earlier writing he highlights the interaction between individual lawyers and their firms as a mechanism for change as well as stability. Unpacking the relationship of professional ideology to gender stereotypes illuminates the framework that perpetuates gender imbalance in BigLaw. But within this framework, there also may be lessons to be learned by delving into distinctions of firms and their managers, e.g. Linda Hudson of BAE Systems, cities and practice specialties, and Supreme Court practice (comment of Virginia Sykes); these might reveal alternatives to the hypercompetitiveness ideology that so clearly characterizes BigLaw deal-lawyering in major financial centers. I’d like to think that these alternatives (and the contexts in which they emerge) will compete for influence in generating the next iteration of professional ideology.
Cite as: Carole Silver,
Women and BigLaw: a New Look at the Problem, JOTWELL
(June 14, 2010) (reviewing Eli Wald,
Glass Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes, and the Future of Women Lawyers at Large Law Firms, 78
Fordham L. Rev. 2245 (2010) (part of a symposium, The Economic Downturn at the Legal Profession)),
https://legalpro.jotwell.com/women-and-biglaw-a-new-look-at-the-problem/.
May 21, 2010 Andrew Boon
Richard Susskind,
The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2008) (summaries at
OUP and
Susskind.com).
Legal professionalism is prophesied an apocalypse with increasing frequency. The territory covered by The End of Lawyers? is the threat posed by IT.
Susskind’s big idea is that technology will create a future where lawyers are not the dominant interface between citizens and the law. Acting as a consultant to law firms on IT has confirmed his view that they suffer from conservatism, hostility to innovation and resistance to information technology. He chaired the UK Advisory Panel on Public Sector Information, currently sponsored by the Ministry of Justice, and remains the IT adviser to the Lord Chief Justice of England and Wales. His ideas are glimpsed in the directions that the UK government has taken since Susskind’s 1996 bestseller, The Future of Law. One of his predictions, online legal communities–cross between Facebook and Wikipedia–sponsored by government surfaced in the Community Legal Service. His ideas have more traction in the UK, but are as transportable as the technology around which they are woven.
My engagement flows from interest in the future of the legal profession and specifically for professional ethics, now, belatedly, a candidate for inclusion in the mandatory curriculum of UK law degrees. What it might look like in 10 years’ time–what lawyers ought to do or what they must do under business-like regulation?
The End of Lawyers? puts more flesh on Susskind’s earlier predictions. The thesis is that legal services have traditionally been conceived as bespoke services, but IT creates the potential for them to pass through stages of standardization, systemization, packaging, and commoditization. Lawyers are reluctant to embrace the full potential of IT, but are powerless to resist the impact of disruptive legal technologies (document assembly, online dispute resolution). They are forced to change how they handle legal work, utilizing outsourcing and off-shoring. Clients will eschew bespoke services, demanding more efficient, less costly points on the continuum to commoditization. Lawyers will pay more attention to recognition (of the need for legal advice), selection (of the source of legal advice) and service (the process of delivering legal advice and assistance), and IT will optimize each of these stages.
According to Susskind, there will be five types of lawyer in the future. Only “expert trusted advisers” continue to handcraft legal solutions, but their work is a luxury clients will not pay for, and numbers are reduced. “Enhanced practitioners” will support the delivery of the standard and commoditized packages produced by “legal knowledge engineers”. “Legal risk managers” are counselors who avoid legal problems and “legal hybrids”, schooled in complementary disciplines aligned to law, project managers, strategy consultants, etc., will emerge. The rest had better look out!
The title is an attention grabber, but no lawyer is exempted from his prognosis, even large firm and in-house lawyers, recent high-prestige, high-growth sectors. The current model of Big Law, where partners’ profits are leveraged by large numbers of associates, will be less viable. Custom work demands fully-fledged expertise. The drift to commoditization will exempt relatively few. Bizarrely, only barristers, one of the groups of lawyers in the UK regarded as most threatened by market developments, are secure because they offer consultancy and advocacy. Thus, Susskind is a little ambiguous on whether the end of lawyers is avoidable, but lawyers who offer routine services and resist rationalization will end.
Commoditization is represented by “…an online solution that is made available for direct use by the end user, often on a DIY basis” (32). Online guidance enabling less qualified persons to offer lawyerly advice is hardly the end of lawyers. Despite the wider availability of legal material, the public still needs interpretation and guidance through the “legal maze”. And what of the disruptive technologies? Will they really force lawyers to embrace IT? Experience suggests that only compulsion ensures transition to a computerised function. Consider electronic filing of claims. Change will only become embedded once firms are required to adopt particular systems for optimal engagement with courts.
What about impact on stakeholders in the legal services market? Susskind argues that law students must be encouraged to consider these “likely trends and to think deeply about the new skills that will be needed in practice” (277). In-house lawyers, as gatekeepers for referral to law firms, should start to work together more in online, closed communities. Again, bizarrely, Susskind exempts US law firms by suggesting that UK firms have stronger records of technological innovation than US practices, where “a group of millionaires with clear sight of retirement” (280) innovate only to avoid competitive disadvantage. These robber barons will “wring every last cent out of the increasingly unsustainable practice of hourly billing and steer well clear of innovative IT. Unless, of course, clients demand otherwise” (281).
There are underlying reasons for differences between the two countries. In England and Wales, government is breaking the legal profession’s capacity to resist change, and could be seen to be dismantling legal professionalism. At the very least the creation of a Legal Services Board to oversee the profession is a nail through the heart of self-regulation. The Board will permit “Alternative Business Structures”, which can see legal services being delivered even by supermarkets. Susskind allows the possibility of non-lawyers contributing capital to law firms spurring the technological legal revolution. He speculates that investors will be less chary of IT and will invest in the kinds of systems that law firms do not currently exploit. This will reconfigure law firms, with lay managers and capital puncturing collegial structures.
A criticism of Susskind’s book (not the thesis) is that he erects a straw man in lawyers who assert “computers cannot replace legal work” (274). The truth is that most enterprises adopt technology ahead of the time they need it, so avoiding damage, much less fatality. Lawyers are probably as open-minded about anything that benefits their business. Susskind himself predicts an “incremental revolution [where] lawyers and their clients will change their ways in significant steps rather than huge leaps…” (274). Not the end of lawyers then?
Susskind’s vision focuses attention on unpleasant possibilities for lawyers and academics. It clears the mind of “what is” and encourages thought about the future of law, legal services, and legal education. Some futures are very likely, for example, new investors in law whether or not they splash money on lawyer-replacing technology. They will view legal professionalism and the “professional overhead” from experience of their own industries, wondering whether costs, from courses to apprenticeships to partnerships, are necessary. As insiders they will have to be taken seriously, often with unpredictable and unpalatable results.
Jan 11, 2010 John Flood
Harry W. Arthurs,
Law and Learning in an Era of Globalization, 10 German Law Journal 629,
available at SSRN.
Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)
The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty.
According to Arthurs there is a deeper level to this: globalization of the mind, which has become an ideology. It infuses our thinking where the transnational trumps the national, markets trump politics and law’s role is to make the world safe for markets. This is the “new normal” and it has consequences. The rule of law is seen to protect economic interests from the state; states will be seen to be of less influence than transnational institutions; local resentments consolidate in supranational bodies like the EU or devolution as in Spain or Canada; and the law is decoupled from the state and the state is decentered. Arthurs foresees a new curriculum which contains not judicial decisions but arbitration awards, not legislation but corporate codes of conduct.
Does legal education have to be this pessimistic? Not according to Arthurs. His example of a successful future legal education is found at McGill Law School in Montreal. McGill has developed a “polyjural or transsystemic” curriculum. The result is that
“individual courses and the curriculum as a whole consciously integrate civil and common law perspectives, domestic and international perspectives, the perspectives of state law and of non-state legal systems, and legal perspectives with those of other disciplines” (at 636).
A former McGill dean said “McGill has always been habited by the conviction that a great deal can be gained…from a sustained and humble dialogue with otherness.” And Jukier, a McGill law professor, notes that the idea of otherness is not to be the same but, through the freeing of law from jurisdiction or systemic boundaries, perspectives multiply and understanding is increased. She contrasts this approach with Justice Scalia’s disdain for foreign cases as meaningless dicta (Lawrence v. Texas, 539 U.S. 558 (2003)). Thus, for McGill, law is unbounded, legal systems interpenetrate or meet resistance, common law is mixed with civil and religious, domestic and international law struggle with each other, and law is found in transactions, discourse, and the quotidian routines of life.
Arthurs argues that such a curriculum is refreshing for legal scholars but how do students fare on such a diet? Since McGill favors unpredictability, students might balk, so let them have what they want. Arthurs says this isn’t so far from what law teachers already do as Scalia indicates. He prefers the approach of niche marketing, however, whereby the law school should try to attract those students who will feel most comfortable in the transsystemic environment. But it presupposes adequate knowledge on the part of the students to make an informed choice. Arthurs’s favored way is “to engage students in serious conversations which will free them from the tyranny of rules.” It has three principles. One is that students’ own experiences have validity in legal studies. Two is that faculty have to show they value questions more than answers. Three is for students to use their new knowledge to interrogate themselves. And four is to help students understand that their lives will be riven by ambiguity, indeterminacy, and irony.
This is a brave approach for a law school to take. And it challenges the faculty’s preconceptions as much as those of the students. Harry Arthurs is raising the stakes for law schools in that many wish to embrace globalization in some way but don’t necessarily know which is the best approach. Constrained by professional regulation, they might ignore it or introduce one or two courses, or they might reconstitute the entire curriculum as a challenge to conventional wisdom. Perhaps the last great revolution in legal education occurred in 1870 when Christopher Columbus Langdell became dean of Harvard Law School, in which case the next one is overdue.
Nov 20, 2009 Richard Parnham
Laurel S. Terry,
The European Commission Project Regarding Competition in Professional Services,
29 Nw. J. Int'l L. & Bus. (forthcoming 2009),
available at SSRN.
I have a personal reason for reviewing Laurel S. Terry’s account of the European Commission’s recent investigation into the European professional services market. As a former senior writer on The European Lawyer magazine, I was a first-hand witness to many of the events described in her paper, including the 2003 Brussels conference she mentions.
The main purposes of Professor Terry’s paper is to describe an ongoing EU initiative, which has the stated aim of making Europe’s professions– including its legal professions–more efficient and competitive. In all likelihood, the end result of the events described in Terry’s paper will be that many of Europe’s bar associations will be forced to liberalize their regulatory frameworks. What is more, she believes that, in an increasingly globalized world, other countries may decide to follow Europe’s lead. She fears such countries may decide to conduct their own investigations into their professional services markets, using a similar methodology to that employed by the EU.
Terry’s article will undoubtedly produce a polarized response from those interested in lawyers’ professionalism in general, and lawyers’ deontology (ethical rule-making) in particular. Those who believe that the professions’ freedom to set its own deontological/ethical standards protects the “public interest,” or serves the administration of justice, may well be appalled to learn of the European Commission’s broad-brush, antitrust-focused appraisal of the European professional services market. Conversely, those who take a more skeptical view of lawyers’ self-regulation may well have their views that bar associations “don’t get” public (as opposed to private)-interest deontological rule-making confirmed.
Terry also highlights the Janus-like positioning by various EU institutions in relation to professional services regulation. As she points out, “traditionally, legal practice in the EU has been regulated by each EU state.” This point is reinforced in her commentary of the Wouters and Arduino ECJ rulings, two remarkable cases from the same day in 2002 which–effectively–allowed EU bars to get away with clearly anti-competitive bar rules, mainly because the Dutch and Italian governments, respectively, had decided that such rules were acceptable.
Yet, as Professor Terry points out, within months of Wouters and Arduino, another branch of the EU–the European Commission–effectively kick-started a multifaceted programme of reform of lawyers’ profession rules. An important milestone in this initiative was the publication of a much-criticized comparative, multistate report into European professional services regulation, produced by Austria’s Institut für Höhere Studien (IHS). In addition, a new Services Directive (only briefly mentioned in Terry’s report) was introduced and, after much debate, eventually passed.
Although many of the events covered in Terry’s article are now several years old, it is important that readers do not treat it as an interesting–if historical–account of a period of regulatory upheaval. Instead, her report is a snapshot of a series of events, which are even now developing. Yet, the very fact that she is describing an ongoing process invariably poses its own problems. Since Professor Terry completed her review, a new report into the legal profession has been unveiled in France, which may well have far-reaching implications, not only for the French legal profession, but also for the European legal market as a whole. A quick Google translation-powered search around various EU justice ministry and competition authority press release sections suggests a wealth of ongoing activity. Even developments Terry highlights in her report, such as the 2006 Irish Competition Authority investigation, have moved on before her paper has been published–albeit by “moved on,” I mean various spokespersons from the Irish Competition Authority have repeatedly complained about the failure of various stakeholders to “take on board” many of the Authority’s suggested reform proposals.
As a US-based commentator, Professor Terry expresses a hope that US legal regulatory and professional bodies should proactively investigate their own regulatory arrangements, rather than passively react to any equivalent “stock-taking” exercise by the US government. This is certainly a wise suggestion. Historically, legal professions have struck what is known as a “regulatory bargain” with their governments: bars issued and enforced deontological rules “in the public interest”, in return for regulatory autonomy. But if bars choose to ignore their side of the bargain, and refuse to engage in timely and necessary reforms to their rules, they arguably only have themselves to blame if governments react by curtailing their right to regulate.
And, as Terry rightly says, even before this latest European initiative, a series of EU directives had placed limited on EU bars’ deontological rule-making capacity, on issues as varied as establishment, advertising and lawyers’ money laundering disclosure obligations. In effect, EU bars’ competence to self-regulate are being salami-sliced, year-by-year. Even if US frontline regulators manage to avoid an EU-style comprehensive review of their ethical codes, Terry foresees the possibility of enhanced federal oversight of the US legal market.
In concluding her paper, Professor Terry says that, despite her support for the EU’s overall objectives, she feels that any equivalent US investigation should learn lessons from Europe. In particular, she hopes the methodology of regulatory analysis would be more robust–and open to criticism–than that carried out by the IHS. She also calls for greater recognition to be given for the “non-economic” aspects of lawyers’ profession regulation.
This, of course, is paradox that countless academics have pondered for many years. Many of lawyers’ deontological rules are justified by reference to esoteric concepts as “the rule of law.” But, as Terry admits, in arguing on a “rule of law” basis “one may not always be able to offer hard data or offer quantifiable measures in support of the arguments.” Yet, if the main justification for an existing deontological rule is fundamentally intangible, how does one accurately assess whether that rule is objectively justified?
Oct 27, 2009 Tanina Rostain and John Flood
An invitation from the Legal Profession Section Editors
John Flood and Tanina Rostain
As legal profession scholars have observed, law practice is being reinvented at an ever-accelerating speed the world over. Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled—among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online shared platforms. In the corporate realm, multinational companies demand that their lawyers be available to provide services 24/7 in every corner of the globe. In the meantime, lawyers representing individuals, non-profits, and NGOs increasingly use new technologies and transnational resources and strategies to develop more effective and efficient models of service delivery. Despite this rapid pace of change, many lawyer regulatory regimes lag behind and continue to hew to a model of regulation tied to geographical jurisdiction and domestic legal norms.
In recent years, the field of the legal profession has benefitted from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession. Researchers have drawn on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings.
We highlight three aspects of the legal profession that have received attention. First, there has been work on the composition and geographical dispersion of law firms. Examples of the former include, in the US, Marc Galanter and Bill Henderson’s revision of tournament theory as the “elastic tournament”, which can be contrasted with David Wilkins and Mitu Gulati’s reconception of law firm internal labor markets. The geography of the legal profession, both in terms of globalization and styles of professionalism has been a growing field led by Jonathon Beaverstock, Daniel Muzio, Peter Taylor and James Faulconbridge in the UK.
Second, there is a growing body of literature on what lawyers actually do and the ways in which legal services are delivered. Robert Rosen has argued that “we’re all consultants now” as clients motivate lawyers to alter their organizational strategies. Sigrid Quack in Germany has researched on transnational law-making by lawyers. John Flood and Fabian Sosa unpicked the role international lawyers play in transnational business transactions showing their activities were very much a function of the type of law firm with which they associated. Tanina Rostain examined the role of the tax bar in the market for abusive tax shelters and its subtle interpretation of professionalism and gatekeeping. At the other end of the spectrum Sida Liu has described the coping strategies of criminal defense lawyers in China in the face of powerful state opposition, something alien to lawyers in the West.
Third, the field of regulation of lawyers has moved beyond the analysis of lawyers’ ethics traditionally found in the legal journals, i.e. the individual lawyer’s behavior. In countries such as Australia law firms have the power now to incorporate and list themselves on the stock exchange. In the UK in 2011 non-lawyers (e.g. supermarkets; insurance companies) will be able to own law firms. This raises questions over law firms’ ethical responsibility in the face of commercial pressures that appear to conflict with the norms of professionalism as Christine Parker has studied in Australia. Andrew Boon has even asked if we are seeing the globalization of legal ethics. And Laurel Terry has shown how the legal profession is being impacted by the regulatory might of the WTO and GATS. Lawyers and the legal profession are no longer immune from the forces of modernization and globalization.
Given this wealth, this space offers an opportunity to initiate an ongoing discussion about the most interesting work and make it available to a wider audience of legal scholars. With these ends in mind, we have recruited leading scholars from around the world to showcase their favorite exemplars of recent research on lawyers, the legal profession, and lawyer regulation. Contributing editors have been invited to use this platform to highlight the most significant developments in the field and provide access — for researchers mainly working inside the Anglo-American legal tradition — to important work not readily available in English. Our hope is that this section will contribute to the growing global conversations about lawyers’ ideals and lawyers’ practices.
Oct 26, 2009 Michael Froomkin
Legal Profession Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor John Flood
University of Westminster School of Law
Professor Tanina Rostain
Co-Director, Center for Professional Values & Practice
Co-Chair, New York Law and Society Colloquium
New York Law School
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Andy Boon
Dean, University of Westminster School of Law
Professor Elizabeth Chambliss
Co-Director, Center for Professional Values & Practice
New York Law School
Dr. Kay-Wah Chan
Macquarie University, Department of Business Law
Professor Susan Saab Fortney
Paul Whitfield Horn Professor of Law
Associate Dean for Research and Faculty Development
Texas Tech University School of Law
Professor Jay Krishnan
Charles L. Whistler Faculty Fellow
Director, India Initiative, Center on the Global Legal Profession
Indiana University Maurer School of Law
Professor Sida Liu
University of Wisconsin-Madison
Professor Richard Moorhead
Cardiff Law School
Professor Christine Parker
Associate Professor & Reader in the Law Faculty
University of Melbourne
Richard Parnham
Legal Journalist
Professor Carole Silver
Visiting Professor of Law
Executive Director, Center for the Study of the Legal Profession
Georgetown University Law Center
Professor Laurel S. Terry
Harvey A. Feldman Distinguished Faculty Scholar and Professor of Law
Penn State Dickinson School of Law
