Restoring a future for law

I was privileged earlier this month to be invited to deliver the keynote address at the 2013 Futures Conference organised by the College of Law Practice Management and held at the Chicago-Kent College of Law.  My theme was the future of law.  The speech is available as a video (starting about 15 minutes in and with microphone on at around 16:30 minutes!).  However, I also thought it would be worth writing it up as a paper (which is not a direct transcript).  It’s available here.

In summary, the paper addresses three themes: (1) What is Law for?  (2) What are lawyers for?  (3) The Future.  The first two questions to my mind provide necessary answers to the fundamental question, What next for Law?  For each theme, I suggest a proposition.  The substance of the argument is that both law and lawyers have lost sight of their true purpose and that reconnecting with both is essential to enabling a meaningful and worthwhile future for law.

My approach to answering the question, What is Law for? (or alternatively, What is Law’s Purpose?) is to address it as an aspect of the public interest – that is, maintaining the fabric of society itself and enabling the legitimate participation of citizens in society.  My first proposition is that governments and lawyers have lost sight of what Law is for.

Working from the proposition that Law’s Purpose is to maintain and protect the public interest, then the core purpose of lawyers is to advise and represent citizens and institutions in the working out of Law’s Purpose.  But lawyers have created an artificial market for their services.  In all, this false market amounts to a departure from Law’s Purpose.  This leads to my second proposition that governments, regulators and lawyers have lost sight of what lawyers are for.

If we have lost sight of what Law and lawyers are for, a new approach is needed to ensure a decent, meaningful and sustainable future for Law, lawyers and legal services.  However, there are two significant obstacles to this new future: a broken business model of legal practice; and the closely connected issue of inappropriate regulation of legal services and the practice of law.

The business model of the future must focus on creating value for clients, and then resource the firm with the appropriate facilities and technology, people (lawyers and others), and organisational elements of structure, processes, culture, and market profile to do so.  It must also be open to more options for finance, ownership and structure.  Also, the current model of law practice pays out too much money, too quickly, as income, to the wrong people, for doing the wrong things: it is a short-term income extraction model that benefits a select few people disproportionately and inappropriately.  The business model of the future will take a broader view of who should be rewarded for what, and when and how they should be rewarded.

The second obstacle to the future is regulation.  I have come to the conclusion that all legal services that are provided for reward should be regulated – though this still leaves open the questions of how and by whom.  There are four forms of regulation for legal services: the market; accreditation; redress and discipline; and standards.  This can result in a framework for legal services regulation which is a particular and healthy mix of rules, values, and markets.

Accepting (as I do) that law is a business, the market has a role in regulating legal services.  But law is not just a business.  We cannot rely entirely on the market to regulate legal services.  Formal regulation can provide both before-the-event assurance (to stop things going wrong, or at least to reduce the risk) and after-the-event ‘insurance’ (to put things right if they do go wrong).  The deliberate creation of barriers and costs should lead us to question carefully whether before-the-event regulation is justified.

My view is that these barriers should only be erected for two purposes.  The first is to secure public good benefits, such as the maintenance of an effective justice system.  The second purpose is where after-the-event redress or compensation are inadequate, such as when a citizen’s life or liberty is at stake.  In my view, the English notion of reserved legal activities provides too narrow a basis for determining the need for before-the-event assurance, while the US notion of the unauthorised practice of law is too broad.

After-the-event regulation in legal services is usually targeted at a formal complaints process that dissatisfied clients can use, combined with remedies for redress, compensation and disciplinary processes.  In light of the asymmetry between legal adviser and client, giving rise to a general need to protect clients from incompetence and exploitation, I would be in favour of all providers of legal advice and representation (at least where they do so for reward) being subject to after-the-event regulation, irrespective of whether or not they are otherwise regulated.

Finally, we should not overlook the powerful effects of culture and socialisation in ‘regulating’ the behaviour of practitioners.  A set of professional standards and ethics that is followed or enforced offers a strong underpinning to legal practice.  However, these standards should be applied to all those who provide legal services for reward and not just those who happen to be legally qualified.

The thrust of this paper, therefore, is that the best future for law requires us to re-establish sight of some fundamentals because, as a society, we are in danger of forgetting what Law is for and what lawyers are for.  We need to reconnect with Laws Purpose, and properly pursue the public interest.  We need to reconnect with providing value to clients, and properly pursue the client interest within the context of the public interest.  We need to reconnect with a set of values, and properly pursue the professional interest within the context of the public interest and the client interest.  In other words, we need to recalibrate the public interest, the client interest, and the professional interest and the relationships among them.

So my conclusion and third proposition is that the future of law depends on finding a new and proportionate balance of the public interest, the client interest, and the professional interest.

What I am driving at here is the achievement of Law’s Purpose in a business context and with professional integrity – it could be expressed as profitable ethics and ethical profits.  As someone who is passionate about the independent, cost-effective and ethical realisation of Law’s Purpose, I would encourage all those involved – government, regulators and practitioners – to work towards this new balance.

12 thoughts on “Restoring a future for law

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  2. Hi Stephen

    I have come very belatedly to this post ! Great stuff and I will now watch the video. As you rightly say, value is key, which means giving advice rather than just advising what the law is, at a proportionate cost. To me, it also means being valuable not only when the s..t hits the fan.. lawyers can learn a lot from accountants. We need to have a far more active conversation with clients about the value of a regular relationship not ad hoc, and offering training and monitoring of risks and opportunities is key. the other point i believe is relevant is that, to offer proportionate advice, at a cost clients want, the regulators and Judges, vis professional negligence law need to also note the change in legal landscape. Clients are entitled to get what they pay for, delivered well and with great service. Lawyers cannot, however be expected to do 5x what’s agreed on fee to fully protect a client who understood they were not getting Rolls Royce at that price, from the outset.

    Interesting times, there will be plenty of winners as well as losers and I intend to be a winner !

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  6. I have to agree with most of your analysis, but it is only from one perspective. This view places law, legal advice and other related information into the decent and meaningful category, but this is not a world of ‘if you build it, they will come.’ Instead, lawyers, paralegals, elder planners, mediators and the whole host of occupations and individuals who provide assistance in this area must also face the economic reality of what it cost to get their training, the cost of law as a business, the cost of the regulation and monitoring required, and that reality, and how those in need of assistance will mesh.

    Having just paid out a painful amount of money for my education, and facing the certainty of having to pay off the debt to complete my education, I, too, much face a less than ideal reality.

    And what quasi-official, yet completely unbiased, body would you suggest could regulate the multiple disciplines, each with their own training requirements and certifications?

    I would love to donate my services, and I do when I can, but I also know that if I do not pay back my loans and pay my rent, I am no good to any of those people in need of services.

  7. Great article. I participated in a panel discussion some years ago for a young lawyers’ group, and a question was asked about work that the associate thought bordered (or crossed into) the unethical. I suggested that standing on principle is not a terrible thing, and simply refusing to do the work was a possibility. I was distressed to have almost been laughed off the stage. But I stood my ground, and rather loudly pressed the point. The socializing element discussed above is a very dangerous one. Speaking from experience, it can be difficult to find and maintain your own voice, but the rewards are significant. And unfortunately, there are many law schools that, just like many law firms, are staying the historical course in the face of significant data supporting change. It’s an exciting time to be an attorney if you embrace the change that is upon us.

  8. I wish I wrote this!

    The questions you raise are the first things we discuss in my Innovation in Law course. They set the tone and force students to open their minds and rid themselves of pre-conceived notions. These questions are, in fact, the foundation of the entire course.

    It’s surprising that law schools don’t address these questions in their first year curriculum (and reinforce them throughout the programme) as they should form the core of a lawyer’s professional life.

    If you don’t understand the purpose of law, and you don’t understand the purpose of lawyers, then you’ll spend your professional life floundering around filling out time-sheets and begging for clients – which all seems rather empty. This failure to understand the purpose of law and lawyers may also be at the heart of the profession’s depression problems.

    My hope is with the next (still untainted) generation – the current generation of lawyers (with very few exceptions) is far too self-interested and myopic to entertain these ideas.

    Thanks for adding to the 2014 class reading list!

    • Thanks Mitch. It’s good to know that there are courses out there that care enough, and create the time and opportunity to deal with these fundamental issues. Maybe I’m now too cynical, but the powerful ‘socialising influence’ provided by law firms can so easily taint the incoming generations as well as be a force for positive professionalising. At least having the discussion early on should open to eyes and minds. Good luck with the class of 2014 and beyond!

      • In last year’s class, the students were worried about that exact point! That they will too junior to be heard and then they will be co-opted into the old ways. Have faith my friend…
        BTW your thoughts were a big hit with last year’s class and showed them that these issues resonate internationally.
        Thanks again!

  9. Stephen,
    I always read your blogs and find them hugely interesting and thought provoking. This is from the rather narrow angle of someone who is now involved in partner recruitment (if only firms would think like you do, but as you say the partnership model actively encourages early distribution of the spoils) but also as someone who is often called upon to advise children of friends and colleagues who are contemplating a career in the law.
    In that context I am due to speak to 6th formers at Blundells, a private school in deepest darkest Devon, in November. I would, if it is OK with you, like to refer these aspiring lawyers to your paper, and (with suitable attribution of course) invite them to debate some of the issues that you raise.
    I hope that this is OK with you.
    Kind regards

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