f/k/a . . . the archives

October 28, 2007

The End of Lawyers? or The Cartel’s Last Stand?

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 4:09 am

. . . . Richard Susskind, OBE — author of the critically acclaimed “The Future of Law: Facing the Challenges of Information Technology” (1996) and “Transforming the Law: Essays on Technology, Justice, and the Legal Marketplace” (2001) — says a lot of things lawyers really don’t want to hear about the impact of information technology and the increased “commoditisation” of legal services on the future of the profession. You’ve read similar things from the f/k/a Gang over the past four years (usually using smaller words), but neither ethicalEsq nor Prof. Yabut has the OBE, nor have we been called “jurisprudent, legal business guru, government strategist and visionary.” Like, us, however, Susskind has been pretty much ignored by the American legal profession and weblawg community.

The End of Lawyers? Rethinking the nature of legal services,” by Richard Susskind, OBE (Oxford University Press, due May 2008)

Nonetheless, now that the [London] Times Online is presenting six draft excerpts from Susskind’s forthcoming book, “The End of Lawyers? Rethinking the nature of legal services,” I want to urge lawyers, current and prospective law students, and consumers of legal services to closely read and consider what he has to say. [via LegalBlogWatch, "Are Lawyers Going to Become Obsolete?" (Oct. 23, 2007); and Human Law; and see SLAW.ca (Oct. 23, 2007); "Strategic planning case study: the future of the legal profession," at David Jacobson's External Insights; and Rob Millard's thoughtful post at Adventure in Strategy (Oct. 28, 2007)]

The first excerpt in the End of Lawyers series, dated October 19, 2007, is titled “Legal profession is on the brink of fundamental change.” In it, the IT Adviser to the Lord Chief Justice of England and Wales says “I write not to bury lawyers but to investigate their future. My aim is to explore the extent to which the role of the traditional lawyer can be sustained in coming years in the face of challenging trends in the legal marketplace and new techniques for the delivery of legal services.” Susskind’s main points are (emphases added):

  • “[T]hese articles will point to a future in which conventional legal advisers will be much less prominent in society than today and, in some walks of life, will have no visibility at all. This, I believe, is where we will be taken by two forces: by a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service. “
  • “I do not believe lawyers are self-evidently entitled to profit from the law. As I have said before, the law is not there to provide a livelihood for lawyers any more than ill-health exists to offer a living for doctors. . . . And, just as numerous other industries and sectors are having to adapt to broader change, so too should lawyers. “
  • This series calls for the growth and the development of a legal profession not by ring-fencing certain categories of work as the exclusive preserve of lawyers; nor by encouraging cartel-like activity which discourages all but lawyers from engaging. Rather, it calls for lawyers, their professional bodies, their policy-makers, and their clients, to think more creatively, imaginatively, and entrepreneurially about the way in which lawyers can and should contribute to our rapidly changing economy and society.

Susskind challenges all lawyers “to ask themselves, with their hands on their hearts, what elements of their current workload could be undertaken differently — more quickly, cheaply, efficiently, or to a higher quality — using alternative methods of working.” And, he predicts that the market:

  1. ProfPointer“is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving and more) that can equally or better be discharged, directly or indirectly, by smart systems and processes.” And,
  2. “will determine that the legal world is over-resourced, it will increasingly drive out inefficiencies and unnecessary friction and, in so doing, we will indeed witness the end of outdated legal practice and the end of outdated lawyers.

In sum, Richard Susskind challenges the legal profession — not to try to prevent change and protect its traditional ways, but — “to find and embrace better, quicker, less costly, more convenient and publicly valued ways of working.”

Rather than publish his new book and then incorporate comments and related changes in a new edition, Susskind has decided to “release the ideas and arguments earlier and incorporate responses into the book.” Therefore, Times Online asks “Will lawyers exist in 100 years?” (Oct. 23, 2007) and asks readers to ” Join the debate” by leaving Comments.

An urgent (if somewhat selfish) request to Richard Susskind: Please start a weblog and bring your insights and commentary about the Future of Lawyers to us every day. For the f/k/a Gang, it gets tiring being just about the only voice speaking realistically and consistently about the evolving market-and-digital revolution. Your presence is much needed, Richard.

Frankly, within the American Bar and its weblawg community, the members who most pride themselves on being future-oriented and “proactive” (and their consultants and coaches) all paint a happy-face future, where they’ll use tactics such as law firm branding, value billing, and price sensitivity (along with a large dollop of psycho babble) to achieve premium pricing and increased income, in the face of marketplace realities, and at the expense of their clients (while, miraculously, satisfying them more, and somehow working fewer hours, freed from the hourly-billing bogeyman). [See, e.g., the f/k/a posts "Brand Lex," "Internet Websites Encounter the Bar's Guild Mentality," "Valuable Debate on the Ethics of Value Billing," "LexThink (about higher prices)", and "Pro bono is not the answer to the access problem." Also, see the SHLEP About page, "Intro to document assembly online," and "a guide or a guild".] We need to bring Susskind-style reality, IT expertise and professorial eloquence to the issues that are so important for legal consumers and the cause of civil justice for all.

update (Oct. 28, 2008): We featured “The End of Lawyers” in a post one year after this one, again repeating our request that Richard Susskind start a weblog.  To our surprise, Richard left a comment, saying,

“Thank you for the support and the suggestion.

“In the interim year, I have been finishing the book and have had not much time for anything else. It is to be published on 20th November. I am now turning my thinking to how best to keep my ideas in play, so I will give the weblog proposal some serious thought. All the best, Richard”

noloShark Whither the American Bar? After three decades watching the legal profession in the USA from the perspective of a competition and consumer advocate, it is difficult to be optimistic that Susskind’s hoped-for introspection will yield progress rather than cartel-style roadblocks to change. Here are a few signs to look for that will help determine whether the American bar is choosing to (or able to) act like a guild protecting its own interests first, or like a learned profession seeking to best serve the public interest in creating a truly accessible and affordable legal system:

  • will bar associations choose to act like “a guide or a guild” when it comes to spreading the benefits of digital/IT breakthroughs to consumers of legal services? or do they go the way of America’s Realtors, seeking special laws to protect themselves from unbundling of service and price competition? [See "finding self-help info on bar association websites;" and the post "bar & guild," which notes that "Most bar groups spend much of their time acting like guilds — promoting the interests of their members, and 'protecting' the public from competition, information, innovation and choice." ] And see, “Internet Websites Encounter the Bar’s Guild Mentality,” where ethicalEsq said in May 2004:

[I]t seems that most lawyers expected a very good lifestyle to come automatically with their J.D., along with high social status. They are angry and worried that the marketplace doesn’t value their services as highly as they had expected, and they are bewildered that society doesn’t give them the anticipated respect. Good intentions of any one individual lawyer can be readily overwhelmed by the demands of partners (at work and home) to keep the income stream flowing. The result, as individuals and as a group, is resistance to any change that threatens to further undermine their financial and social position. As stated with refreshing candor in a recent bar association publication, “the top concerns of the practicing bar are the economics of the practice and the image of the profession.” (Illinois State Bar Association Bar News, June 16, 2003)

  • are UK-style legal reforms (improved disciplinary systems, entry of nonlawyer firms, etc.) proposed and adopted in the 50+ American legal jurisdictions?
  • will the public start demanding to take back the justice system? (see SHLEP‘s About Page, which states that “Our courts have become costly, complicated, lawyer-centered bureaucracies, rather than the accessible, client-centered dispute resolution centers they should be. As a result, studies show that 80% or more of the legal needs of the poor and working poor currently are unmet in the United States, while even solid members of the middle class often cannot afford to hire a lawyer when a legal need arises.” But, notes that:

By combining the existence of a literate public with the power of computer technology, with a judiciary that understands that our court system exists for the public (rather than for judges or the bar), and with lawyers willing and able to “unbundle” their services and perform discrete tasks for clients who want to handle their own legal matters, we can now make it possible for self-help to be a viable option for solving most of the legal problems of most Americans.

[Click for information on "divorce self-help," "bankruptcy law self-help"; "will-making self-help", and "real estate sale unbundling".

And, from shlep, see "Cisco turns to legal self-help and unbundling";"LegalZoom and the future of lawyering", and "resources at Illinois legal aid online."]

  • Will our political leaders begin to fight for better access to the courts for the majority of Americans who cannot afford legal representation? See “getting politicians to back self-help centers” (shlep, Nov. 16, 2006):

When local politicians are smart enough to see the need for courthouse centers to help the unrepresented litigant, and when they are savvy enough to know that such support can have political advantages, we should see much more being done around the country to give the public the kind of accessible court system that they deserve. Consumers and their advocates need to take this message to their legislators. It is a win-win issue for the public and political leaders who join the cause.

  • Are weblawg pundits continuing to dream up ways for lawyers to extract more money from clients without giving them a better product? (for example, scroll to the second item in this prior post) Are they turning the problem of sky-high hourly-billing quotas into an excuse for using alternative billing methods that promise higher fees to lawyers? See “broadening the billable hour debate,” includes an extensive discussion and review of f/k/a posting on the issues, and makes a plea “those who sincerely want to fix what is wrong with hourly billing spend some serious time figuring out how the alternatives will result in fees (and a work environment) that are fair to lawyer, law firm and client — and how they will function within an economy that, if working competitively, can be expected (due to technological breakthroughs and an excess of service providers) to drive prices down to their marginal costs.” Also, see “Valuable Debate on the Ethics of Value Billing,” which responds to Comments about using value billing and percentage-of-the-transaction billing, by noting: “And, see, “The ‘reality’ ” is that technological advances and efficiencies are expected — in our economy and in basic economic theory — to bring prices down. So is an oversupply of service providers. Your approach seems to be stripping the client of both normal market benefits and fiduciary protection.”

We’ll bring you updates, as Richard Susskind continues to share excerpts from The End of Lawyers at Times Online. We hope, in addition, to announce his new weblawg someday soon.

update: (Oct. 29, 2007): Susskind’s second excerpt is now online. See “A decade on: much changed, much still to unfold,” in which “The author revisits some of the radical predictions he made about technology and legal services in his first book.”

ProfPointer update (Nov. 5, 2007): The third Susskind Excerpt was posted today. In “How the traditional role of lawyers will change” (Nov. 5, 2007), Richard Susskind argues that ‘black letter’ lawyers will give way to multi-disciplinary, ‘hybrid’ advisers. He notes that “If lawyers want to re-invent themselves and carve out new multi-disciplinary roles that allow them to deliver new value, then their commitment to these neighbouring areas of expertise must be deep and our law schools should be gearing up accordingly.” There will be less need for traditional legal advisers, because “new ways of satisfying legal demand will evolve and old inefficiencies will be eliminated.”

In addition, Susskind “envisage[s] the emergence of a third grouping: the legal knowledge engineers. These are the highly skilled individuals who will be engaged in the jobs of standardising, systematising and packaging the law. They will be the analysts who reorganise and restructure legal knowledge in a form that can be embodied in smart systems, whether for use by lawyers, para-legals or lay people.”

update (Nov. 13, 2007): See the fourth installment: “Outside investors will demand a very different type of law firm” (Nov. 12, 2007). More detail at the bottom of this post.

Yes, even skeptics can hope — and enjoy another export from the UK, the haiku of Matt Morden, in Wales:

halloween –
part of the moon
follows a bicycle home

harvest festival ProfPointer
small fingers trace
a saint’s name in slate

post inspection
a bean-counter shakes
my cool hand

halloween
thousands of starlings
flux together

………………… by matt mordenMorden Haiku

p.s. Grant Griffiths is hosting Blawg Review #132 on Monday, October 29, and is especially looking for suggestions from lawyers who work out of an at-Home Office. I’m hoping Grant will help a lot of lawyers transition to jobs and careers that not only bring them a better work/life balance, but that better align with the needs of clients in the 21st Century.

ProfPointerupdate (Oct. 29, 2007): Grant has indeed posted Blawg Review #132 this morning, at his Home Office Lawyer weblog. He’s found quite a few recent blawg posts for your consideration. Grant begins the presentation by saying that “Solo’s, independent practitioners, those that practice law from a home office tend to be innovative. We tend to be out in front. If for no other reason we have no one to answer to. We are the partnership committee. We are the marketing committee and we are the technology committee. For that reason, we tend to adopt new advances in those areas, dare I say, quicker.”

Although the generalization (as always) is surely often on the mark, it is by no means a universal truth — at least not for older solos or for some of the more financially and geographically challenged members of our profession. Being solo amplifies the individual’s personal traits and straits. In many ways, they are a great laboratory for Richard Susskind’s challenge on facing the future as individual lawyers and as a profession.

update: See Susskind’s “End of Lawyers?” series ends with a warning (Nov. 27, 2007) ProfPointer

4 Comments

  1. I loved this headline – “the cartel’s last stand” as well as the post. Thank you for noting my own efforts to encourage lawyers to find ways to leverage technology to provide clients with reasonably priced service, while still making a good living themselves.

    Comment by Carolyn Elefant — October 28, 2007 @ 4:27 pm

  2. Law became a commodity when, like insurance and real estate, when supply outpaced demand and many who practice it are willing to work flex hours and underbid their competition. This is particularly true in two-income households where the primary income earner is not the lawyer and the practice of law is essentially a means to keep a license active, a quasi-hobby, or for self-esteem rather than a monetary pursuit. There’s nothing wrong with this…just noting that it will undercut small- to medium-size firms while pressuring large firms to justify high rates that pay for 1980s-style overhead and perqs. To excel at law, one must develop a niche. I focus exclusively on Internet law and marketing. You’re more likely to find me at a Starbucks with a laptop than in an office.

    Comment by Mike Young — October 29, 2007 @ 7:26 am

  3. [...] scheint in der angesächsischen Welt ein größeres Thema zu sein als bei uns. Ein interessanter Blog-Beitrag in englischer Sprache, bezeichnenderweise “Das Ende des Cartells” genannt, listet [...]

    Comment by Die Zukunft der Anwälte | law-and-disorder — October 29, 2007 @ 2:47 pm

  4. The question of the future of the legal profession in the West is an interesting one, and poses the question, what exactly do lawyers do that other people or information systems cannot? By contrast, here in Japan, there is a consensus that there are way too few lawyers. Efforts are underway to vastly increase the supply of lawyers. Why? To help Japanese people articulate and press rights, both against the government and large corporations.

    Comment by Robert Precht — November 2, 2007 @ 11:09 pm

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