The CBA National magazine has a great article on issues in legal education, which I recommend you read. It is a wonderful overview of some of the challenges and the solutions being proposed to meet them.
The article asks a very important question, who does legal education serve, and in whose interests should the changes in legal education be designed?
It answers the question succinctly: legal education has to serve all of three masters: students, the profession, and the public interest. That’s fair enough for as far as it goes. But there is a linkage that I’d like to draw out, that I don’t think is discussed enough.
How is teaching law students modern technology of advantage to the students? They are better able to compete in an environment that will increasingly focus on efficiency. How is teaching law students modern technology of advantage to the profession? It will provide the profession not only with the expertise it needs to run the systems that are coming, but the leadership that it needs to implement those systems. Change will come from the new lawyers who already know how the systems are better. And how does it serve the public interest? Well, a more efficient provision of legal services is in the interest of the public. It has the potential to reduce costs and improve access.
But that’s not all. There’s a very important part missing from that discussion.
I truly believe teaching law students modern technology will completely restructure the practice of law. I think it will improve gender equity in the practice of law. I think it will improve the working conditions of junior associates. I think that will reduce the incidence of drug and alcohol abuse and metal illness among lawyers, including the terrible rates of suicide. I think it will change the average size of firms. I think it will significantly increase the availability of legal services to the public, with knock on effects on price that go beyond efficiency. I think it will also result in a more ethical profession.
OK. Right now you get out of law school and you know some of the law. You do not, as the article states, know how to manage a file, much less run a law firm. You don’t typically get courses on trust accounting, regulatory obligations on firms, practice management, marketing, etc. You also do not get an education in the most recent technologies available to accomplish those things.
You get out of law school, and you need to article, so you look for a position with a firm large enough and well capitalized enough to be able to absorb the risks associated with hiring an articling student who may or may not stay on as an associate long enough for the firm to see a profit from their participation. If you are lucky enough, you get one of those positions, and you spend a year learning how to work on the lowest rung of that firm. Some of those skills are transferable to other firms, some aren’t. But you still don’t know anything about how to run a law firm. You are starting to learn things about how to manage a client file, but the things that you are learning are lowest-rung things. Your experience is most valuable to the firm you are with.
The pyramidal structure of typical law firms means that your employer is motivated to get as much work out of you as possible, so billable hours requirements are very high. The pyramidal structure of typical law firms also means that you are in constant competition with others in your cohort for a limited number of positions on the next rung. You are therefore motivated to meet and exceed the firm’s expectations, which can only be done by spending more time.
Let’s say you are a woman, and after a few years you want to start a family. Still, today, a great many of our junior lawyers, disproportionately women, decide that this is not possible while also meeting the empoyer’s expectations, and so they leave the private practice of law, looking for positions in-house, with government, or outside the practice of law entirely. This is not anecdotal. The equity ombudsperson for the Law Society of Alberta said years ago the attrition rate for women from private practice was around 50% in 5 years.
Sole practice or going off on your own with a few friends is an option, but you would need to have the capital to pay for a lease, hire staff, pay tens of thousands of dollars for equipment, and god knows if the demands on your time would be any different. Plus, you still don’t know how to run a firm.
Maybe you are unhappy in your practice of law, but you don’t really have anywhere else to go that is better. You can switch firms, maybe, but how does that help? So you continue along the path that was decided for you in first year on campus interviews, getting progressively more depressed and more susceptible to substance abuse and mental illness.
This is not everyone’s experience, of course. But it is the experience of too many people.
Now, what if law students came out of law school, articling, CPLED, or whatever system exists next year, and two things were true: First, they had a basic idea of how to run a law firm, and how to manage a client file. Second, they understood the technology available to help them do that, and what it costs.
This is the part where I apologize for the lie I told above. The truth is you can operate a virtual law firm, from your home, ethically, professionally, and responsibly, with an initial capital investment of around $10,000, no staff, and annual expenses in the range of $20,000. Assume lawyers knew not only that it was possible, but knew how to do it, or knew how to find out, and that they would have the support of the law society and their colleagues. How would the story be different?
Essentially, solo and small practice becomes much more realistic as an option, and becomes a release valve for many of the things that are wrong with the profession today. Instead of quitting because they can’t find the work-life balance they want, people stay in the profession. That increases supply and drives down the price, improving access to justice. Those who stay in the profession but find it negatively impacting their mental health have a choice available to them that empowers them to choose to do less without risking their career advancement. Less addiction, better self care, and (fingers crossed) fewer suicides. The power imbalance that exists between the firm and the junior associate is reduced, forcing firms to compete with “I could do this from home and make more money” for a supply of junior lawyers. That will improve the working conditions for all lawyers, not only those who actually take the plunge. Big firms will get smaller, and small firms will get bigger and more common, driving more and more lawyers into the smaller-law area of practice, which tends to be people law, again having positive effects on access to justice. And every junior lawyer with a realistic option of working for themselves will find the calculus different when faced with questions as big as “should I report this ethical violation on the part of my employer,” and as small as “how much pro bono or legal aid work do I want to do.”
But is the math real? Can you actually do that?
Yes. I know that you can, because I’m doing it.
Don’t get me wrong, it’s not all sunshine and roses. I have had to expect less compensation. I have had to learn everything on my own, and from scratch. But what makes me different from other lawyers is that I knew technology before I entered the profession. I could see, from day one, how things could be done more efficiently.
In a world where the law societies are telling lawyers to be afraid of the cloud, practical learning is infrequent, and practice management teaching is almost non-existent, you have to have a tech background (and be a certain type of crazy, if I’m being honest) to think that taking this plunge is a good idea.
But oh my goodness. If the law societies could make sole practice administratively easier, and be less prescriptive in their regulations; if law schools adopted context-based learning approaches and forced the students to learn while doing real work in a virtual student firm with the tools that are really out there right now…
Everything could change.