by Bhargavi Zaveri

As skepticism mounts over India’s economic resilience and economists rush to blame India’s policy framework for the woes of her economy, the role that India’s BigLaw plays in her law and policy making processes assumes greater significance now more than ever before. In the backdrop of an unpredictable, evolving and complex regulatory and legal regime, the quintessential Indian law firm is expected to not only play the flawless draftsman or the aggressive negotiator but also an organization capable of dealing with the regime, its regulators and policymakers. Indian corporate law firms have responded to this demand by claiming policy affairs as a niche area of their legal practice. In this backdrop, this post explores how and why the Indian corporate lawyer has transitioned from a boardroom negotiator and a draftsman to an active participant in India’s law and policy making processes, and highlights potential conflicts associated with this transition.

Today, India’s law and policymaking processes do not only involve the political class, bureaucrats, civil society actors or jurisprudential developments. A proposed policy or law (in particular, one that affects commerce in India) is regularly preceded by well-publicized detailed analyses proactively offered by leading corporate lawyers in the country. As members of expert committees constituted by the government and regulators, providers of feedback on government-released discussion papers, columnists or interviewees in the media, members of business associations interfacing with the government, Indian corporate law firms strive to make conspicuous contribution to proposed laws and policies. The fact that several prominent Indian corporate law firms now project themselves as having an established regulatory and policy practice (which typically includes reform initiatives, legislative drafting work and holding policy-oriented consultations with government actors), underscores their desire to be seen as being active in the policymaking space. A couple of large corporate Indian law firms are now reported to have dedicated, though limited, resources with profiles involving government affairs and policy formulation. These trends are indicative of a progressive tendency to pro-actively contribute towards law and policy making in India.

The growing participation of the corporate legal community in policy and legislative work is directly attributable to an inclusive approach being increasingly adopted by Indian legislators, policy makers and regulators in recent times. Take, for instance, the FDI policymaking space, a most coveted and crowded practice area dominated by India’s BigLaw. In sharp contrast to the pre-2010 era when FDI policymaking processes had no space for involvement of legal professionals, in 2010, the Department of Industrial Policy and Promotion (being the FDI policymaker in India) initiated a discussion paper series inviting comments on proposed FDI policies from all stakeholders [i]. In addition to responses from industry associations, these discussion papers have, in fact, garnered policy-oriented responses from law firms having an established practice in this space [ii]. Similarly, drafts of proposed rules and regulations released by the Ministry of Corporate Affairs and the Securities and Exchange Board of India (the Indian securities regulator) regularly elicits detailed analyses by corporate law firms known for their capital markets practice [iii].

In addition to the policy and regulatory framework, the contribution that Indian corporate law firms have been making to substantive lawmaking cannot be understated. Several substantive corporate laws (such as the Competition Act, 2002, the Companies Act, 2013, etc.) brought into effect in the last decade have been preceded by consultations with law firms known for their expertise in areas governed by such legislations. So much so, the drafting of certain provisions and filings under these legislations was reportedly entrusted to leading legal professionals in the corporate field. Similarly, leading corporate lawyers were engaged as consultants by the government-appointed commission entrusted with the responsibility of overhauling the legal framework applicable to the Indian financial services sector [iv].

Participation of the Indian corporate legal community extends to the implementation and enforcement stages of policies and regulations as well. Owing to the lack of institutional mechanisms that facilitate formal stakeholder participation at the implementation stages, most often, such participation occurs where a law firm identifies an ambiguity or an unaddressed situation in an implemented law or regulation in the course of assisting a client in a transaction, and approaches the regulator or policymaker for clarifications. In the past, queries seeking transaction-specific clarifications have resulted in the regulator or policymaker addressing the problem for the benefit of the general class of stakeholders. A perfect example of this situation are clarifications obtained through the Informal Guidance Scheme implemented by the Indian securities regulator, which is akin to the Interpretive Guidance initiative of the SEC.

In addition to direct contributions of the kind described above, corporate lawyers have made remarkable contributions to the Indian policy framework indirectly through participation in business associations such as the Confederation of Indian Industries, chambers of commerce, etc. Previous evaluations of government-stakeholder consultations in India have indicated that the interests of members of such associations are not always aligned [v]. Conflicting interests amongst members often restrict the ability of business associations to convey their views on proposed and implemented policies to policymakers. Corporate law firms, through their participation in such associations, are able to impart objectivity and clarity to the associations’ collective views on laws and policies that affect the industry. Through presentations made to such associations, participation in specialized committees and consultation processes initiated by the government and regulators with such business associations, corporate lawyers often end up contributing to the policy framework by participating in actual stakeholder and industry-level discussions. For instance, the post-budget announcement days regularly witness tax law firms explaining the implications of the budget on various industries. These views often supply the foundation for opinion-formation by industry-specific business associations on the budget.

Participation by BigLaw in policymaking is mutually beneficial to policymakers, regulators and the participating law firms. While the former are benefitted with the expertise and real-world experience that law firms bring to the table, a capacity to deal with and establish smooth interface with regulators and policymakers can potentially earn a premium for law firms from a client’s perspective. However, the increasing role of corporate law firms in policy formulation and implementation often raises several questions regarding the objectivity underlying their contribution. To what extent are a law firm’s views insulated from client requirements? Do law firms contribute toward policymaking only when warranted by specific transactions? How does one address the inherent conflict of interest while analyzing policy-oriented feedback offered by legal professionals in the corporate field? These questions often reduce the receptivity of lawyers’ views at policy-level discussions. As unregulated as this space currently is, these questions are open-ended and it remains to be seen whether the benefits of professional expertise and legal skills outweigh concerns of objectivity.

Be that as it may, with increasing inclusiveness in the Indian law and policy making space, credit for contributing towards law and policy making in India can no longer be restricted to socially activist lawyers, legal jurists and civil society actors. By volunteering in his own way towards improvisation of proposed and implemented policies, laws and regulations, India’s contemporary corporate lawyer is now making a leap from being a plain dealmaker to a contributor to the law, policy and rule making processes of the country.

Bhargavi Zaveri is a Mumbai-based solicitor with experience in M&A, private equity and corporate practice in India. She is presently an affiliated fellow with the HLS Program on the Legal Profession where she is researching FDI law and policymaking, and the interface between legal professionals and policymakers in India.

[i] See order dated May 11, 2010 issued by the Government of India constituting an expert group for improvisation of Government-Industry consultation processes. Also see Annual Report 2009-10 of the Government of India, Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, pp. 34. Both documents can be found on http://dipp.nic.in/English/Archive/Archive.aspx.

[ii] See http://dipp.nic.in/English/Archive/ArchiveFeed.aspx. This section of the DIPP website posts the responses received by it from stakeholders on draft FDI-related discussion papers released by the DIPP.

[iii] See http://www.mca.gov.in/Ministry/Comments_archive.html. See also Press Release dated March 28, 2007 which deals with the project initiated by SEBI for re-drafting the regulatory framework applicable to the Indian securities markets, and emphasizes the importance of professional feedback as under:
‘The importance of public comment cannot adequately be emphasized as the success of the task will rest to a large extent on the inputs of investors, market intermediaries and professional experts to the first draft put up on the SEBI website.’

[iv] See Report of the Financial Sector Legislative Reforms Commission, Vol.I, March 2013, pp. 159.

[v] See Minutes of the first meeting of the Expert Group constituted by the Planning Commission for improvisation of Government-Industry consultation processes. The document can be accessed on http://dipp.nic.in/English/Archive/ArchiveFeed.aspx.

Legal Education

Obama on Law School: “Wise to think about two years instead of three”

New York Times DealB%k Blog, Wall Street Journal, WSJ Law Blog

Last month President Barack Obama, during a tour of colleges and universities, casually said, “I believe that law school would probably be wise to think about two years instead of three years,” but also questioned whether, “law schools could maintain the quality and keep good professors and sustain themselves without that third year.” The president speaks from experience as a graduate Harvard Law School, former president of the Harvard Law Review, and former professor of constitutional law at the University of Chicago. The president’s comments added to the debate around this issue prompted by the ever increasing costs of a legal education, the high debt law students are shouldering upon graduation, and the lack of job opportunities.

In response to the president’s comments, the Wall Street Journal reported that some critics of the shortened legal education say even three years of law school does not adequately equip students with practical skills. Michael Livas, a professor at the University of Houston Law Center said, “if we are not producing good results in three years…how are we going to do it in two years?” Brian Tamanaha, professor at Washington University School of Law in St. Louis noted, “it is not that the third year has no value, it is whether the value is worth the additional burden.” Barry Currier, the American Bar Association‘s managing director of accreditation and legal education added, “maybe we can’t afford three years of legal education anymore—but there are a lot of ways to reduce cost, and just slicing off a whole year is a blunt instrument.” The debate stretches back to the late 19th century, when college graduates could sit for the New York bar after completing two years of law school. In 1901, retired judge Francis Finch defended the third year stating, “A course of two years can only cover the technical subjects of study and that more or less by a process very like cramming…Much has to be omitted which is very useful and beneficial…[a]nd the things omitted under the compulsion of the narrowing time are precisely those which ought to be added to turn out something more than a cheap lawyer.”

Opening the Veil to Elite Law School Admissions

Slate

Asha Rangappa, the dean of Yale Law School, writes that the admissions process at elite schools needs to open itself up and shed light onto how admissions decisions are made. Prior to the electronic age, the “black box” admissions process was more or less assumed. Indeed, apart from the generic application materials, communicating with applicants was a time-consuming and difficult process. However, with the advent of instantaneous communication, the black box admission process is anachronistic and counterproductive. Keeping the admission process veiled has led to the increase in for-profit college admissions consultants—consultants whose only qualification is having attended an elite university, consultants who often provide overly extensive levels of editorial assistance, and consultants who only the wealthy can afford. With so many social networking options, admission officers now have the means to offer a peak into what they are looking for. Some of these things are obvious (make sure you application is free of typos, grammatical errors, and incorrect punctuation). Others are more subtle, like know the difference between an obstacle (like being a political refugee) and a disappointment (like not making a sports team). Rangappa notes that providing candid advice directly and freely from the admissions office goes a long way in reassuring students that the process is not a black hole. It also democratizes the process by making sure that everyone has access to the same information.

Fewer Elite College Grads Applying to Law School

New York Times Economix Blog

In response to a post on the Associate’s Mind, the New York Times Economix blog analyzed the decline in the number of law school applicants coming from top-ranked colleges and universities. In general, the number of applicants to law school for the fall of 2012 was down 17% from 2008, but amongst the U.S. News top 20, the number of applicants was down an average of 28%. From the top five schools 30% fewer Harvard graduates, 18% fewer Princeton graduates, 27% fewer Yale graduates, 18% fewer Columbia graduates, and 17% fewer University of Chicago graduates applied to law school in 2012 compared to 2008. Some possible reasons for the steeper decline from top-ranked schools include a greater range of jobs available for non-legal careers, and better career services offices that may be more likely to inform students that there are fewer opportunities than in the past for law graduates.

More in Legal Education

• The Practice-Ready Law Graduate is a ‘Fantasy,’ Says Professor (WSJ Law Blog)
• State Sanctions Ex-Villanova Dean Accused of Inflating Student Data (WSJ Law Blog)
• Laptops Found More Likely to Distract 2Ls and 3Ls in Class (National Law Journal)
• These Students are on the 6 Year Plan (Texas Lawyer)

Innovation & New Models

ABA Attitudes on Non-Lawyer Fee-Sharing Shifting

WSJ Law Blog

Recently issued guidelines from the American Bar Association (ABA) may indicate a shifting attitude towards fee sharing with non-lawyers in the US market. In the new guidelines, the ABA announced it was softening its stance on fee sharing with non-lawyers allowing firms to indirectly split fees with outsiders, which may be a precursor to a change in longstanding ethics rules preventing such arrangements. While the formal opinion they released isn’t binding, it could encourage state bar associations to relax their own rules on fee sharing. Countries like the United Kingdom and Australia have recently embraced the idea of non-lawyer profit sharing and while the ABA still has concerns over confidentiality and independence that non-lawyer involvement brings, this announcement may signal that the US is closer to entertaining a more progressive approach than it previously has.

2013 ABA Journal Legal Rebels

ABA Journal

The ABA Journal highlighted the innovative achievements of several legal professionals in its 2013 “Legal Rebels” series. They include: Michele DeStefano, a professor at the University of Miami School of Law and affiliated faculty at the Harvard Law School Program on the Legal Profession, who co-founded LawWithoutWalls, a program that connects law and business students around the world to collaborate on “Projects of Worth” designed to solve problems in the legal profession; Fred Rooney, who leads the International Center for Post-Graduate Development and Justice at Touro College’s Jacob D. Fuchsberg Law Center, an organization that brings together postgraduate training programs aimed at placing recent law grads in law firm incubators and legal residencies; D. Casey Flaherty, corporate counsel of Kia Motors America, who developed a test to audit the computer skills of lawyers working for and auditioning to work for Kia; and Karl Okamoto, a professor at Drexel University, who developed the transactional training program LawMeets, a mock negotiation competition that allows law students to experience acting as buyer, seller or client in a transaction.

More in Innovation & New Models

• When Lawyers Cut Their Clients Out of the Deal (New York Times)

Globalization

Afghani Contractors Seek Out US Lawyers

New York Times

US law firms and lawyers are being hired by Afghanis as contracting deals from redevelopment efforts in the country go bad. Afghanis are adjusting to the high rates of American lawyers as they seek to smooth over relations with the US government or American companies with whom they have done business. For example, Mahmood Karzai, a brother of President Hamid Karzai, gave a $100,000 retainer to a US lawyer to investigate whether prosecutors in New York were planning to bring a case against him.

More in Globalization

• Growth in Global Disputes Brings Big Paychecks for Law Firms (New York Times DealB%k Blog)

Law Firms & Practice Management

Job Satisfaction Rises at US Law Firms

WSJ Law Blog

A survey from American Lawyer magazine finds that junior lawyers at major US law firms are happier with their jobs than at any time since 2004. However, the survey did find that female lawyers on average expressed less satisfaction than male lawyers on a number of fronts. Fewer women lawyers than male lawyers responded that they thought they would be made partner in the next five years, although this gap has narrowed since 2008. Women were also significantly more likely to say that if they leave the firm it would be for work/life balance.

Firm Continues Operating under Partner’s Name after Her Death

New York Law Journal

In a controversy stemming from the death of a law firm partner in a plane crash, a state court judge held that the partner’s boutique law firm was not dissolved as a result of the death of the partner. Marya Lenn Yee was an equity partner at Donovan & Yee when she died from injuries she sustained in a California plane crash in 2008. The firm’s 1997 partnership agreement provided that the death of a partner shall not cause the dissolution of the partnership, unless only one partner remains and no additional partner is admitted within 90 days after the death. The firm added a new partner, Andrea Calvaruso who had previously been a nonequity partner at Donovan & Yee. The firm contended that the new partner had been added within the 90 day limit, but the decedent’s estate alleged that the addition of a new partner was a ruse to avoid dissolution. The estate and the firm also disputed whether the firm may still use Yee’s name. In its ruling the court found that the firm did not dissolve by operation of law upon Yee’s death, because Calvaruso was timely added to the firm’s partnership ranks within the meaning of the 1997 agreement. Moreover the firm has a right to continue to use Yee’s name. The partnership agreement provided that although the partner’s interest terminated upon the death of a partner, the firm would pay to the decedent’s estate an amount based on a formula using the deceased partner’s net capital account.

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Public Interest Lawyering

Law Laboratory Seeks Access to Justice Through Innovative Teaching, Ethics Changes

ABA Journal

Several years ago, Professor Renee Knake of the Michigan State Law School didn’t like the state of the profession, seeing inefficiencies, a severe market drop and the inability to properly serve a large swath of the US population. She decided to do something about it, taking the ReInvent Law Laboratory from idea to reality in a year’s time with faculty buy-in and outside financial support. Her rationale was to “create a space where we could build an on-the-ground tool for rethinking the ways we deliver legal services, and then train our students and practicing lawyers to do it.” Through the laboratory, Knake and co-founder Professor Daniel Katz created a core curriculum for students that focuses on employer requests for specific jurisprudential skills in pillar areas of law, technology, design, and delivery. Knake herself is also interested in the constitutionality of ABA rule 5.4, which bars non-lawyer investment in firms, and sees changing that rule as a key to liberalizing the market for legal services. The laboratory asks students to consider and develop models that an outside investor would be interested in funding.

Sequestration Threatens Integrity of Federal Court System

Washington Post Op-Ed by Attorney General Eric Holder, WSJ Law Blog, & New York Times

US Attorney General Eric Holder wrote an opinion piece in the Washington Post warning that sequestration is undermining defendants’ constitutional right to counsel. He noted that even the federal defense lawyers for the high-profile Boston bombing suspect are facing the prospect of three weeks unpaid leave. The New York Times reports that cuts for the fiscal year 2014 will result in staff reductions of 30-50% in the offices of federal defenders. The Wall Street Journal finds that budget cuts have already impacted the federal courts in New York City by reducing their hours of operation and raised safety fears as security is scaled back to save money. Commentators have noted that the current and proposed cuts not only undermine the functioning of the judiciary, but in some instances will increase costs as remedial measures are implemented that will end up being more expensive in the long-run.

Diversity

Many Large Companies Failing to Abide by SEC Diversity Rules

Think Progress

Three years after new Securities and Exchange Commission (SEC) rules requiring companies to disclose the role diversity considerations play in board hiring were enacted, most companies are failing to comply and boardroom diversity remains stagnant. The new SEC rules require companies to indicate “whether diversity is a factor in considering candidates for nomination to the board of directors, how diversity is considered in that process, and how the company assesses the effectiveness of its policy for considering diversity.” A forthcoming note from Columbia Law School student Tamara Smallman finds that 60% of Fortune 50 companies fail to fully comply with the requirements and an additional 10% fail to mention diversity at all. The failure to embrace these rules is likely a contributing factor to the seven consecutive years in which the percentage of women on Fortune 50 boards has failed to crack 20%.

Three Women Designated as Indian Senior Advocates

Bar & Bench

In a rare move, the Supreme Court of India designated three women—Vibha Dutta Makhija, Meenakski Arora and Kiran Suri—as Senior Advocates. Each of the three women appointed are long standing members of the bar and have impressive legal backgrounds. The appointments represent a near doubling of the number of women senior advocates designated by the Supreme Court. Until the selection of Vibha Dutta Makhija, Meenakski Arora and Kiran Suri, only five out of the 309 senior advocates were women. Indeed, the lack of women was so striking that in an interview last year, Senior Advocate Rajani Iyer admitted that there might be an “inbuilt resistant” against women lawyers in the Indian legal profession. While the increase from five to eight is certainly not a large number, Kiran Suir notes that, “Finally, something good has happened.” Similarly, Meenakshi Arora said, “Now it is time for more women lawyers to be designated as Senior Advocates. It is time to prove that we are no less than any of our male colleagues and if not better we are at par.”

More in Diversity

• The Best Law Firms for Diversity 2014 (Above the Law)
• Don’t Blame LSAT for Dearth of Minorities (National Law Journal)

Attorney Regulation & Ethics

Sexual Abuse Victims Sue Law Firm for Lying to Judges

New York Daily News

Almost a dozen victims of sexual abuse by a Brooklyn Poly Prep football coach accused attorney Jeffrey Kohn and his law firm, O’Melveny & Meyers of repeatedly lying to Brooklyn federal judges over several years about the existence and results of early internal investigations into the abuse of students at Brooklyn Poly Prep. The plaintiffs claim that the alleged lies delayed the litigation in federal court, and the victims were unable to access the investigative notes of former federal prosecutor Peter Sheridan, who was hired by Poly Prep to investigate the abuse allegations. Counsel to the victims alleged that Kohn and O&M lied when they said Sheridan had concluded that there were no complaints predating 1991. Moreover, counsel for the victims asserted that Sheridan was fired by Poly Prep before he could finish his investigation and he had reached no such conclusion. The plaintiffs’ legal bills now exceed $2 million and they are seeking legal fees and treble damages. They are also seeking interest on the settlements and are demanding that O&M be disgorged of any legal fees earned in the litigation. The case raises a number of issues regarding the liability of counsel for what might otherwise be interpreted as privileged information.

More in Attorney Regulation & Ethics

• Advocates without solicitors is an important step (The Scotsman)
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Corporate Counsel

Paul Dacier, GC of EMC, Takes up Reigns at the Boston Bar Association

Boston Globe

Paul Dacier, general counsel of EMC, was recently appointed head of the Boston Bar Association—the first general counsel to lead the association in its 252-year history. The appointment of Dacier also mirrors the growing importance of corporate counsel in the legal profession and within corporate governance structures. Indeed, CEOs and other top corporate leaders lean on their in-house counsel for business as well as legal advice—particularly at IT companies where patent and licensing laws are critical. At EMC, Dacier and his legal department are known for fighting against “patent trolls,” entities established for the sole purpose of purchasing patents and suing companies for alleging infringement. As president of the Boston Bar Association, Dacier plans to focus on pushing for increased funding for the judiciary (which currently stands at $580 million of the state’s $34 billion budget). Dacier notes that budgetary shortfalls within the judiciary lead to justice delayed, as some judges have backlogs of over 600 cases. Dacier also hopes to focus on prompting civility among lawyers. He says, “Getting a law degree does not mean you can become obnoxious.”

Survey Finds High-Level Women In-House Lawyers Paid Less

Corporate Counsel

According to a survey by ALM Legal Intelligence and Corporate Counsel, when it comes to total cash compensation (salary reported as of March 1, 2013 combined with annual cash bonus for 2012), male chief legal officers and general counsel earn an average of $723,700 while women in the same positions earn an average of $575,200. At the highest levels, men made 40% more in bonuses than women. Among deputy chief legal officers, the disparity was somewhat slimmer, with men earning an average of $386,700 and women earning an average of $316,400. The National Association of Women Lawyers (NAWL) has conducted a survey of law firm partners yielding similar results. NAWL president Deborah Froling believes that one solution is to increase the number of women working in-house and says, “When you look at corporate legal departments that are headed by women, there tend to be more women there and they’re a little more sensitive to the compensation issues.”

Lawyer Profiles

The Robber, the Judge, and the Case for Leniency
New York Times

Taking the Long Road One lawyer found a balance working in-house, but it wasn’t a short trip
Corporate Counsel

Managing Editor: Nicola Seaholm
Contributing Editors: Nathan Cleveland, Derek Davis, Bryon Fong, Hakim Lakhdar, Nick Robinson

Nick Robinson

One of the major debates in the legal profession in recent years has been to what extent regulators should regulate legal entities versus legal professionals. In 1991 Ted Schneyer famously argued in a Cornell Law Review article [Ted Schneyer, Professional Discipline for Law Firms? 77 Cornell L. Rev. 1 (1992)] that regulators should increasingly shift their disciplinary focus to law firms instead of relying almost solely on disciplining individual lawyers. Academics like David Wilkins and Elizabeth Chambliss have since argued [Elizabeth Chambliss and David Wilkins, A New Framework for Law Firm Discipline, 16 Geo. J. Legal Ethics 335 (2003)] that Schneyer’s proposal is most productively thought of as not suggesting to discipline law firms directly—something that has been possible in New York and New Jersey for some time, but rarely invoked—but rather demanding law firms have a plan to proactively participate in regulating (and disciplining) their own lawyers.

A variation of this cooperative strategy of regulation was adopted in Australia. In 2001 New South Wales (NSW) deregulated its legal profession. As part of this shift it required incorporated legal practices to implement and maintain “appropriate management systems.” Firms were required to self-asses and report on the implementation of these systems to an independent regulator. As Tahlia Ruth Gordon, Steve Mark, and Christine Parker found in an excellent 2010 article, this strategy seems to have led to a significant decline in complaints in NSW about lawyers at these firms. Interestingly, a drop in complaints was best correlated not with the grade the law firm gave its management system, but rather that it simply self-assessed at all. In other words, the process of self-assessment was seemingly more important for compliance than the grade that self-assessment generated.

In light of this seemingly successful experiment in New South Wales should other jurisdictions rush to regulate legal entities in a similar manner? As Joan Loughry documents in a recent article surveying the literature on law firm regulation—and describing a similar regulatory approach towards legal entities in the United Kingdom adopted under the 2007 Legal Services Act—the regulation of law firms continues to generate criticism.

One traditional critique is that an emphasis on law firm regulation will undercut professionalism. Lawyers will feel it is up to the firm to regulate unethical behavior and feel less of a need to self-regulate their personal behavior. Such a theory is plausible, but the New South Wales experience at least on its face does not seem to bare it out.

That said, given our current paucity of information about regulating law firms it is difficult to assess the impact of such regulation in any comprehensive way. The empirical evidence for the success of the regulation of legal entities is largely based on the New South Wales study. It’s unclear if adopting a similar regulatory strategy would lead to a parallel decline in complaints in other settings. Gordon, Mark, and Parker themselves note that the UK had an earlier less than successful experience with regulating law firms that provide legal aid. Critics of this UK scheme contended the regulation of these firms led to micro-management, box-ticking, and little improvement in lawyer performance. Gordon et al. argue that the difference between the two experiences had to do with the type of regulation being promoted: the UK regulation of law firms was focused on cost-saving and quality control for their participation in legal aid while the NSW regulation was focused on bringing down client complaints more generally through a more collaborative approach. They also noted the importance of the relationship between the regulator and those being regulated and the tools employed. The NSW regulatory framework requires high capacity regulators that can deploy their power in a nuanced way. We could imagine many situations though where this context does not exist and where an attempt at regulating law firms in a similar manner would lead to red-tape, increased costs, and the flouting of regulatory processes. There is still much research that needs to be done on how law firm regulation might interact with different regulatory cultures, politics, and economics (think Australia vs. the United States vs. China vs. India).

Even if we acknowledge that context matters and so must be taken into account in the regulation of legal entities elsewhere there are other reasons we might feel we need more information before we can be confident in embracing the NSW law firm regulation approach. Three such reasons are discussed below.

1. Capture and market manipulation. We might expect that the cooperative NSW regulatory approach would have early payoffs, but then the impact would later reduce as the energy behind this approach diminishes or as those that are being regulated capture the regulator. Those who capture a regulator might weaken regulation to make it ineffective, or, if the regulator was captured by large law firms, they might actually work to make regulation more onerous so as to drive out smaller firms less able to comply with burdensome regulatory demands. (Already in Australia a consulting industry for law firms has sprung up to help them through the required self-assessment process. Further legal entity regulation would likely lead to more consulting and more costs.) Although having an independent regulator certainly has many benefits compared to regulation by the bar, one drawback might very well be that it could be easier for it to be captured either by the more wealthy members of the profession or their perspective (which amounts to largely the same thing). This could lead to a bias towards more costly regulation which those with more resources are best able to comply with.

2. What Are We Disciplining? Law firms are already seen as producing fewer complaints from clients than solo practitioners. Sure, it would be great to reduce the number of complaints further, but is this even the type of misbehavior that we are most concerned about emanating from law firms, especially larger ones that tend to have more sophisticated clients? Maeve Hosier has written this paper on the role of lawyers in the Irish economic meltdown and the failures of the regulation of legal services involved. The NSW regulatory framework might very well have been better equipped to identify and mitigate these more systematic failures of the profession than the Irish system of regulation, but it’s not immediately clear that the NSW regulatory framework is particularly well designed to do this. Yet, such regulatory failures can have a far larger impact on the overall economy than most infractions by lawyers.

3. Why focus on law firms? (. . . Law firms are declining) Given that more complaints are received against solo practitioners than law firms, Richard Abel has argued that solo legal practitioners in the United States should be banned with all lawyers being required to have partners and insure themselves for malpractice. Much of the literature on the legal profession seems to have adopted either a similar normative stance in favor of law firms against solo practitioners or sees the continuing rise of law firms as inevitable and solo practitioners becoming marginal. Interestingly, and worthy of further study, the empirical evidence does not seem to back up this descriptive account (I won’t discuss the normative position here). Take New South Wales, which has probably been the most deregulated legal market for the longest (beginning in 2001). One might expect that large firms, using new ways of raising capital and combining their services with other industries, would be dominating this new legal landscape. Instead, we have seen a decline in the per cent of lawyers in law firms in New South Wales and an increase in the number of solo practitioners in private practice.

Lawyers in Private Practice in New South Wales

2001 statistics can be found here
2012 statistics can be found here

As the above chart shows, the only area where firms have grown as a per cent of lawyers in private practice is in the range of 11-20 lawyers. Large firms have not been immune. There were 24 firms over 21 lawyers in 2001. In 2012 there were still 24 such firms, but lawyers in them made up a significantly smaller per cent of lawyers overall. The United States legal market has also seen the persistence of solo practitioners—they have made up about half of legal professionals for decades now—and the economic recovery has seen jobs in the legal sector recover more quickly and robustly in portions of the legal sector outside of large firms. (Note: There is a categorization question these numbers raise. It’s unclear if in Australia and the U.S. the category of “solo practitioners” also includes lawyers who have pursued other opportunities—such as business—but retained an active law license. If so, this would conflate true solo practitioners with those engaged in other activities, but would not change the conclusion that there has been a relative decline in the number of lawyers working at law firms.) /p>

None of the arguments above are meant to discourage the regulation of law firms or the regulation of law firms through the NSW model. Instead, they point to the limits of our knowledge about this subject. Much further research needs to be done. In the meantime, policymakers will make decisions on the evidence and regulatory theories available. Changes in the regulation of law firms in the UK and other jurisdictions should give us more evidence to analyze in the coming years.

Nick Robinson is a research fellow at the Harvard Law School Program on the Legal Profession. Before coming to Harvard, he spent seven years in South Asia where he clerked for the Chief Justice of the Indian Supreme Court, taught at National Law School Bangalore, Jindal Global Law School, and Lahore University of Management Sciences, and was a senior fellow at the Centre for Policy Research. Read full profile

Diversity

Women Continue to Exit the Profession

CNN

According to September 2012 American Bar Association statistics, women comprised 33% of the legal profession, however only 20% were at the partner level and only 15% were at the equity-partner level. In comparison, women were awarded 47% of law degrees that year, implicitly raising the question of where all of the women lawyers are going. On one hand, 57% of all lawyers leave private firms before their fifth year of law practice; on the other hand, there are also a number of factors contributing to a mismatch between the number of trained women lawyers and the number actively engaged in the profession. Because private practice lawyers bill for every minute of work, there is an incentive to spend as much time as possible at work—a factor that disrupts work/life balance. According to a report by the Women Lawyers of Utah, in 2010, 37% of women said that they experienced verbal or physical behavior that created an offensive work environment. For these reasons, Suzanna Goldberg, a professor at Columbia Law school and director of the Center for Gender and Sexuality Law, makes a case that law firms—often despite best intentions—do not end up always being female friendly.

UK Barrister Reacts to “Boys’ Club Justice”

The Lawyer

In an op-ed piece in the Lawyer, Emma Dixon, a barrister in the UK, argues that the lack of female representation on the Supreme Court impedes the ability of the court to be impartial and objective in the deliberation of cases that involve diversity. She writes that, “just as we need diversity in those who make our laws and those who enforce them, so too we need diversity in those charged with interpreting and applying the law. It is a question of improving the legitimacy of judicial decision making.” Historically, only men have been appointed as Lord Chief Justice, and the recent missed opportunity to appoint a qualified woman, Lady Justice Hallet, “would have sent a signal to the legal profession that women can aspire to the highest positions and encourage more female applicants.” She concludes that the judicial appointment process in the UK is flawed and is in need of an overhaul.

More in Diversity

• Law firms have ‘unconscious bias’ that stops women from getting promoted, says senior City lawyer (Telegraph)
• Bad Economy Hurting Law Firm Diversity (JD Journal)
• The Female Lawyer Exodus (Daily Beast)

Public Interest Lawyering

Innovative Study Surveys Access to Justice in Brooklyn Family Court

National Law Journal (see related NLJ article)

This summer, Yeshiva University’s National Center for Access to Justice, housed at the Benjamin N. Cardozo School of Law, is taking the first steps in a major pro-bono project aiming to improve the quality of legal assistance for indigent clients. The study, called the Brooklyn Family Court Child Support Study, assigns summer associates to sit in on hearings at the Brooklyn Family Court and interview participants to quantify the type of legal assistance they were able to access, how well they understood the process, and whether the magistrates can do more to expedite cases or improve participants’ satisfaction. This study, ambitious in its own right, is part of a larger effort to establish the Access to Justice Index – a tool designed to evaluate which state courts best meet the needs of the public.

Clearing the Backlog in Bronx Courts

New York Times

In a follow-up to an earlier series of articles about the extreme delays and systemic problems in the Bronx courts, the New York Times reported on the work of State Supreme Court Justice Patricia DiMango, who has been moved from her regular appointment in Brooklyn to a temporary post at the Bronx County Hall of Justice. Justice DiMango is charged with clearing a massive backlog of felony cases, and has cleared more than 500 long-delayed cases since January. Her approach to running the fast-paced “blockbuster court” involves working with prosecutors and defense attorneys to bring about plea deals in order to move the cases along. If a deal cannot be reached, the case goes immediately to trial. The method has been effective, but has drawn some criticism from those who say the deals are too lenient. Justice DiMango disagrees, saying, “[I] strongly evaluate the case, listen to both sides, try to figure out what I think really might have happened, or the motivation for what might have happened, and then present it to the defendant in a way I think they’ll understand it, and will help them make a decision as to whether or not they should exercise their right to go to trial or accept a plea.” Though the backlog is gradually being reduced, the efforts of Justice DiMango and her colleagues who preside over the trials do little to address the long-term systemic issues in the Bronx. Steven Banks, citywide attorney in chief of the Legal Aid Society, likens the continuing delays to a boat that’s taking on water, noting, “as quickly as the water is bailed out, even more water is rushing in.”

Globalization

Merger Results in Billion Dollar Global Firm

Wall Street Journal Law Blog, Bloomberg News, The Lawyer, Legal Week and Reuters.

The Chinese-Australian firm King & Wood Mallesons (KWM) will merge with UK firm SJ Berwin, creating the world’s first billion dollar global law firm. Effective in November, the combined firm will have over 2,700 lawyers, with more than 550 partners in 30 locations. This merger is indicative of the changes facing the global legal profession, and highlights the way law practice is evolving in established economies and emerging economies like China, Australia, India, Brazil and South Africa. This can be seen in the arrangements made for office and lawyer locations; SJ Berwin will move into KWM’s offices in Hong Kong and Shanghai, while London-based KWM lawyers will relocate to SJ Berwin’s Queen Street Place headquarters in London. Strategically, this will give KWM a boost in European markets, allowing them to compete with the majority of other large Australian firms; furthermore, it will make way for expansion into additional markets in Asia, such as Singapore.

Harish Salve to Join London’s Blackstone Chambers

Legally India

One of India’s best-known senior advocates, Harish Salve, has fast-tracked his application to become an English barrister and announced he will join London’s Blackstone Chambers. Salve, who will continue to be based in New Delhi, will also have a London office, where he is already engaged in arbitration and other work. Salve spoke critically of India’s ban on the entry of foreign lawyers, citing the relative ease with which he can become a barrister in England and Wales and the need for lawyers to be able to assist clients wherever they might be doing business. He argued that the Indian bar has been misinformed about the actual consequences of liberalizing entry of foreign law firms into India, and that their presence would improve the quality of legal services without cutting into the work of most Indian lawyers.

Attorney Regulation & Ethics

Mental Illness and the Bar

New York Times Op-Ed

In a recent New York Times op-ed, lawyer Melody Moezzi reflected on the issue of mental illness and attorneys, a subject not often discussed in the legal profession. Many states require that bar applicants disclose whether they have been diagnosed for treatment within five years of admission for “bipolar disorder, schizophrenia, paranoia or any other psychotic disorder.” Failure to respond truthfully could result in the denial of admission as could disclosure of prior mental illness. Moezzi argues that individuals diagnosed with a mental illness are no more likely to commit a violent crime, engage in unethical behavior or fail to represent their clients competently than the general population. The boards of bar examiners have a regulatory duty to protect the integrity of the profession, but that obligation must be balanced against the individual’s right of privacy.

Irish Government Moves Legal Regulatory Authority to Greater Independence

The Irish Times

The Irish Minister of Justice has agreed to shore up the independence of the proposed new regulator for Irish legal services after initial plans were criticized for giving the government too much power. Under the new plan the six laypersons appointed by the government to the eleven person Legal Services Regulatory Authority would no longer be chosen by the Minister of Justice, but by various agencies, including the Irish Citizens Information Board and the Human Rights Commission. Ireland is following the lead of several countries, including the United Kingdom and Australia, that have set up new regulators for legal services, which are largely independent of the profession. The EU and IMF, who have pushed for a new regulator for legal services in Ireland, have criticized the slow pace of reforms.

More in Attorney Regulation & Ethics

• Lawyers’ Business Model (New York Times Op-Ed)
• Judge: Plaintiffs’ Firms Inflated Contract Lawyer Rates (Wall Street Journal Law Blog)
• Obama Announces Plan to Revise Patent Law for the Technology Sector (JD Journal)

Legal Education

Law School Faculty Face Layoffs; ABA Moves to Ease Tenure Requirements

Wall Street Journal, Wall Street Journal Law Blog, & New York Times DealB%k Blog

Law schools from across the country are facing drastic drops in their application and enrollment numbers. According to the Law School Admissions Council, applications for the entering class of 2013 were down 36% compared to 2010. In 2012, law schools nationwide saw enrollments failing 8.5%. Brian Tamanahan, a professor at Washington University School of Law in St. Louis, notes that this downward trend is particularly problematic as law schools without large endowments are highly dependent on tuition for revenue. This has, as one might expect, created serious problems for law school balance sheets. And that in turn has often lead non-elite law schools to begin targeting their largest expense for constriction: the faculty. Professor Tamanaha notes, “cutting faculty is just a necessary adjustment of the loss in enrolment and the tuition. You can’t cover million dollar deficits just by trimming.” Seton Hall University recently put its untenured faculty on legal notice that their contracts may not be renewed at the end of this academic year. This form of budgetary restraint is not without controversy, however. Seton Hall Professor Victor Fleisher notes in the New York Times DealB%k blog that the decision to cut untenured, but nonetheless tenure-track professors, should be made based solely on academic merit, not budgetary needs. He writes, “Seton Hall’s decision to allow budget considerations to affect tenure outcomes sets a bad precedent…If universities tie tenure decisions to department budgets, deans will be tempted to think about pleasing alumni in determining whom to tenure and who to let go.” In response to these developments, the American Bar Association is moving to change its policies requiring law schools to grant tenure to certain faculty members as a part of the accreditation process. As part of the new policies, law schools would no longer have to offer tenure to receive accreditation, but they would be required to offer more-limited job security packages to full-time faculty.

Faculty and Commentators Offer Ideas to Improve Legal Education

New Republic

Responding to rumors of the demise of the legal profession, the New Republic set out to ask professors, writers and practitioners for thoughts on how to improve law school. The results are a mix of new and not-so-new ideas. Harvard Law School Professor Alan Dershowitz suggested that law school should be reduced to two academic years, with a third year being dedicated to the student’s career choice. Mike Kinsley, editor-at-large of the New Republic, called for law school schools to discontinue use of the Socratic Method, believing it to be an inefficient way to convey information. University of Colorado Law School Professor Paul Campos questioned the widespread availability of massive student loans in a terrible job market as “extraordinarily irresponsible.” Dahlia Lithwick, senior editor and legal correspondent at Slate suggested limiting the number of people who go to law school. David Lat, founder and managing editor of Above the Law, advocated for a gap year between college and law school. Finally Mark Chandler, general counsel at Cisco Systems, suggested letting students intern for money and credit.

More in Legal Education

• Torts? Pass the Sunscreen (New York Times)
• Conditional Scholarships: Are They On Their Way Out? (Wall Street Journal Law Blog)
• Law school financing system in need of ‘serious re-engineering,’ task force says (ABA Journal)

Law Firms & Practice Management

Large Law Firms See Increase in Revenues; Not so for Smaller Firms

The National Law Journal

The Survey of Law Firm Economics is a joint project of the National Law Journal and ALM Legal Intelligence that examines law firms ranging from one to more than 150 lawyers to better understand their management, financials, hourly rates, billable hours, compensation and personnel ratios. Some of the most compelling results of the study show that revenues are up 8.5% from last year in those firms with 150 lawyers or more. Overall compensation, billing hours, average hourly rates and profits per lawyer were all up from the year before. Law firms on the other end of the spectrum—those with one to nine attorneys—experienced a 8.1% decline in revenues, resulting less favorable overall figures for 2012 versus 2011. Much of this is attributed to alternative management styles and business models that have helped to fine-tune these larger firms and keep them as lean as they need to be in order to be more profitable.

New Republic: The Last Days of Big Law

New Republic (Responses in American Lawyer, Slate, & Washington Monthly)

In a much discussed New Republic article, Noam Scheiber argues that Big Law’s heyday is over and the sector will shrink from 150–250 such firms in the United States to 20–25 within the next decade. He writes that the economic downturn, structural shifts in the legal services market, and fierce competition amongst partners has led to the end of what was previously a dignified, stable, and plush career trajectory. Scheiber’s thesis has generated much debate and push back. Mark Obbie in Slate recounts how Big Law’s demise has been foretold (incorrectly) many times before and that although the profession has become more crass and competitive it is unclear how genial it ever was. Robin Sparkman at the American Lawyer notes that despite the great recession the top 100 American law firms have continued to see robust, albeit reduced, growth and profitability. Daniel Luzer at Washington Monthly points out that most lawyers do not work at prestigious firms and so any shifts that Scheiber identifies are only impacting a small number of lawyers.

More in Law Firms & Practice Management

• Management Memo: Is Your Firm Creating A Star Culture? (The AmLaw Daily)
• Why The Legal Profession Isn’t Recovering With The Rest Of The Economy (Business Insider)
• Biglaw’s Troubling Trajectory (New York Times Op-Ed)

Innovation & New Models

Firms Respond to Needs of Tech Clients with Interactive Online Offerings

Investors Business Daily

Younger clients, specifically those in the technology industry, are pushing law firms and legal services companies to develop online platforms where attorneys and clients can work together on legal matters. These particular clients are used to operating in virtual environments in their professional and personal lives, so managing legal needs online is natural. More interactive and functional than the average law firm website, these platforms include a variety of services such as access to forms, uploading and downloading documents, group calendars, and progress reports. Perhaps the most important aspect of the various online systems is real-time electronic billing, allowing clients to manage their budgets and make more accurate predictions about the total costs for any particular matter. Michael Stovsky, head of the innovations, information technology and intellectual property group at Benesch, Friedlander, Coplan & Arnoff says, “We embrace technology and using technology to enhance our relationships with our clients.” Though the legal services industry has been slow to enter the online arena, competition and client needs are bringing about an increase in the types of services offered via the web.

Small Firm Turns to Innovative Mobile Solutions to Remain Competitive

Biz Tech Magazine

To survive in the legal services market, many small firms look for innovative new ways to streamline their operations and increase efficiency to stay competitive with larger firms. At Golden & Waters, the use of innovative technology has been their way of increasing efficiency since they opened in 1999. They are currently putting the finishing touches on a standardized suite of mobile products, including smartphones and tablet computers, that let each member of the 22 lawyer team work wherever they are—on the road, in court, or in the office. By collaborating with their technology partner, CDW, Golden & Waters was able to customize the mobile devices they use to ensure maximum functionality and security, essential factors for attorneys and the sensitive data they handle daily.

More in Innovation & New Models

• Treadmill desks help Taft law firm get fit, cut costs (Cincinnati Inquirer)

Lawyer Profiles

• Lawyer Who Beat Chevron in Ecuador Faces Trial of His Own (New York Times)
• A Legal Bane of Wall Street Switches Sides (New York Times DealB%k Blog)
• Snowden’s Lawyer Comes With High Profile and Kremlin Ties (New York Times)
• Sports Attorney to Athletes who are in Trouble (USA Today)
• Lawyer Brings Hard Lessons to Gay Marriage Fight (Philly.com)

Program Notes

Program on the Legal Profession Hosts Sen. Richard Blumenthal at HLS: Bring more Accountability to the FISA Court (video)

Just hours after news outlets reported additional revelations Thursday morning concerning the scope of information gathered by the National Security Agency, US Senator Richard Blumenthal (D-Conn.) delivered an address at Harvard Law School on proposed legislation to reform the Foreign Intelligence Surveillance Court. On August 8, the senior senator from Connecticut called the court established by the Foreign Intelligence Surveillance Act a “black box” that had remained secret both to the public at large and even to most members of Congress. Blumenthal said that although he serves on the Senate’s Committee on Armed Services, the revelation on Thursday that the NSA was searching the content of Americans’ e-mails and texts sent to or received from foreign countries was news to him as well. Read more and watch video >

The event was presented in cooperation with:

• The Human Rights Program at Harvard Law School,
• The Berkman Center for Internet and Society at Harvard University,
• Harvard Law School International Legal Studies,
• The Institute for Global Law and Policy (IGLP) at Harvard Law School, and
• The Harvard University Institute of Politics

Managing Editor: Nicola Seaholm
Contributing Editors: Nathan Cleveland, Derek Davis, Bryon Fong, Hakim Lakhdar, Nick Robinson

Public Interest Lawyering

Four Part Series: In the Bronx, Justice Can Wait

New York Times (see related editorial)

In New York City’s poorest borough, criminal cases are routinely delayed for years, denying citizens their right to a speedy trial. As of January 2013, 73% of all Bronx felony cases exceeded the state court system’s own time target of a trial or resolution within 180 days. The severity of the problem is not shared with New York City’s wealthier boroughs; in recent years, the Bronx was responsible for more than half of New York City’s cases in criminal courts over two years old, and for two-thirds of defendants waiting for their trials in jail for more than five years. The conviction rate has declined precipitously and courts have taken to delaying cases for such insignificant reasons as a prosecutor’s vacation plans or even a backache. The fault is widespread and can be attributed to the area’s district attorney; defense lawyers who exploit delays; judges who are unable to maintain order in their courtrooms; and court administrators who have failed to secure and apply the resources their courtrooms desperately need. Unfortunately, change may come slowly or not at all to the Bronx, where many citizens are poor and do not have political capital.

The Fight for Legal Aid: Divisions Form over UK Ministry of Justice’s Plan to Cut Funding

The Guardian (see additional story)

A recent proposal by the Ministry of Justice (MoJ) will cut the UK criminal legal aid budget by £220 million. Under the plan, the cost of judicial review will rise, lawyers’ fees will be slashed, and criminal legal aid contracts will be awarded through competitive bidding. The MoJ plan has received strong objection from a variety of constituencies and stakeholders from across the UK. Politically, a motion condemning the plans was recently put forward and signed by 60 members of Parliament, mostly Labour. The Justice Select Committee of the Commons is also expected to hold hearings on the matter. A legal watchdog group, the Legal Services Consumer Panel, has also criticized the plan as draconian. Elisabeth Davies, the chair of the group, states, “When a person’s liberty is a stake, they must have the freedom to choose who will defend them.” A recent survey by the UK Bar Council found that more than 70% of the public fear that further cuts to legal aid could result in innocent people being wrongly convicted. Moreover, 67% of those polled agreed that legal aid was a price worth paying for living in a fair society. Maura McGowan QC, chairman of the bar, states, “The public hugely values our legal aid system and it is concerned about the consequences of the government’s proposals.”

More in Public Interest:

In a First, Judge Orders Legal Aid for Mentally Disabled Immigrants Facing Deportation

New York Times

Law Firms & Practice Management

Law Firm Settles Fee Dispute with Client, Denies Overbilling, Denounces ‘Inappropriate E-Mail Humor’

New York Times DealB%k Blog

Was it “e-mail humor” or did some of the lawyers at the world’s largest law firm, DLA Piper, get caught overbilling a client? We may never know, because neither side is talking as result of the confidentiality provision of the settlement. Earlier this year, DLA Piper settled a lawsuit with Adam H. Victor, an energy industry executive, for an undisclosed amount. The case originally began as the result of Mr. Victor’s failure to pay DLA Piper their legal fees in connection with its representation of one of Mr. Victor’s bankrupt companies. Mr. Victor counterclaimed, accusing the law firm of a “sweeping practice of overbilling” and demanded a $22.5 million in punitive damages. Pre-trial document discovery unearthed damaging internal e-mails, exchanged among DLA Piper attorneys. The e-mails were reported to contain comments like, “I hear we are already $200k over our estimate—that’s Team DLA Piper!” and, “now Vince has random people working full time on research projects in standard ‘churn that bill baby!’ mode.” The dispute highlights a number of issues associated with the way lawyers get paid for their time, not to mention the danger of e-mails. So long as the billable-hour continues to be the primary measure of an attorney’s worth, we will no doubt continue to see cases like this in our legal profession.

Book Reviews: Lawyer Bubble—A Profession in Crisis

USA Today, Time Magazine, and Wall Street Journal

Is the end near, or are proclamations of the demise of the legal profession greatly exaggerated? If you were to ask Steven J. Harper, author of Lawyer Bubble—A Profession in Crisis, he might suggest to you that the profession’s days are numbered without drastic change. According to the synopsis of his book, Harper, an adjunct professor at Northwestern University and a regular contributor to the American Lawyer describes a profession in decline, and finds fault with practically everyone from the deans of law schools, to large corporate law firms, to the federal government issuers of public and private student loans. Harper identifies a number of reasons for the decline of the profession, including the manner in which attorneys bill for their time; the emphasis law schools place on law school rankings; partners’ focus on the bottom line and profits; and there being too many law students for too few jobs. Notwithstanding the doom and gloom foreshadowed in Harper’s book, he suggests a number of changes that could improve the future of the profession, and provides some insights on what the final outcome could be.

More in Law Firms & Practice Management:

Heller Ehrman, Greenberg Traurig Settle Malpractice Suit

Wall Street Journal Law Blog

Attorney Regulation & Ethics

Non-Lawyer Regulation of the Legal Profession: A Case for Change

ABA Journal and Wall Street Journal

In a provocative new paper in the Emory Law Journal and a recently published book entitled the American Legal Profession in Crisis: Resistance and Responses to Change, Professor James Moliterno of Washington and Lee University School of Law argues for the inclusion of non-lawyers in leadership and policy positions in organizations such as the ABA and state bar associations. His premise is that, “In short, the legal profession is ponderous, backward looking, and self-preserving…I recommend a more forward-looking approach that welcomes the views, and even control, of non-lawyers and innovators in business and other enterprises.” Under his new vision, the legal profession would likely move to a more inclusive national law licensure system and would welcome more non-lawyer ownership of firms. Read the paper >

More in Attorney Regulation & Ethics:

Lawyer Criticizes Brooklyn Prosecutor over TV Show

New York Times

Legal Education

Non-Lawyers Enrolling in New Master’s Programs, Filling Seats in Law Schools

Wall Street Journal and National Law Journal

Student enrollment in non-JD legal education programs is up 13% since 2010. While LLMs remain popular, many law schools now offer master’s programs in law that usually cost the same as one year of law school. These programs are targeted to midcareer professionals in heavily regulated fields who would benefit from a more in-depth understanding of the law. While the ABA does not track how many law schools have launched non-JD programs, anecdotal reports from ABA officials indicate a steep increase. Law schools that are losing revenue from decreased applications see these programs as alternative sources of revenue. These programs also fill a gap in the legal education market for those who want specialized training without the financial and time commitment of a traditional JD program. Many programs are geared toward highly specific practice areas, such as real estate law, education law, conflict and dispute resolution, energy law, and health law. In addition, many programs are offered online and allow for distance learning and more flexibility for students. Most programs follow a similar structure: students take one or two foundational law courses that cover the basic 1L curriculum broadly, followed by courses that match their specific interests. Master’s students attend classes alongside JD students, filling otherwise empty seats.

‘Brooklyn 2-3-4’ Allows Flexibility for Law Students

National Law Journal and PR Newswire

Brooklyn Law School’s board of trustees approved the “Brooklyn 2-3-4” program, effective in 2014. This JD program will allow students to graduate with more flexible time frames, offering 2, 2.5, 3, 3.5, and 4 year options. For the two year program, students take classes in the winter and summer breaks.The University of Dayton School of Law, Northwestern University School of Law, and Southwestern Law School also offer accelerated options. The Brooklyn program will have a separate admissions process from the traditional JD program and will give priority to those with previous work experience. Dean Nick Allard feels the program “will be an attractive option for many different people, including MBAs, CPAs or people who are looking to start a second career.” While the credits required for the accelerated program remain the same as a traditional JD program, as does the tuition, one less year of living expenses as well as the ability to enter the workforce earlier will be attractive selling points for potential applicants. Students will begin classes during the summer, before traditional 1Ls arrive. Their second summer will consist of more coursework and externships.

More in Legal Education:

Law School To Launch New Deferred Admission Program for College Juniors

Harvard Crimson

Law Professor Hurls Hypocrisy Charge at Colleagues

Wall Street Journal Law Blog

A Case for Grade Inflation in Legal Education

Wall Street Journal Law Blog, ABA Journal, and Business Insider

New Report Suggests Ways to Fix Legal Education

US News and World Report

Innovation & New Models

‘One Day Divorce’ Speeds up the Process in Sacramento County

Sacramento Bee

The Sacramento Superior Court in California has developed a new “One Day Divorce” program to help couples finalize their uncontested divorce cases without a lawyer. About 72% of Sacramento County dissolution of marriage applicants are self-represented because they can’t afford or don’t feel they need an attorney. Unfortunately, even couples able to come to terms without the help of lawyers can sometimes spend years navigating the administrative processes and red tape involved in obtaining a final judgment. Judge James M. Mize recognized this problem, and created the program to help couples who aren’t dealing with contentious disagreements and don’t need a trial. In order to be eligible for the program, couples must have filed for divorce at least six months before applying for One Day Divorce, and must have already come to terms on an agreement. The program relies on two types volunteers: law students serve as “form assistants, ” helping the couple complete paperwork; and attorneys serve as judges pro tem, advising the form assistants and approving the settlements. At the end of the process, the couples are escorted to court where Judge Mize renders his decision. Law student and volunteer Stasia Salmon noted that people are happy with the program and, “it’s the only time I ever see people leaving the family court with smiles on their faces.”

More in Innovation & New Models:

How Lawyers are Mining the Information Mother Lode for Pricing, Practice Tips and Predictions

The ABA Journal

Globalization

Challenges and Changes in the Profession: David Wilkins Keynote

AboveTheLaw.com

In a recent keynote address to the National Association for Law Placement’s (NALP) annual education conference, Harvard Law School Professor David Wilkins, vice-dean of Global Initiatives on the Legal Profession and director of the Program on the Legal Profession, outlined a set of major challenges facing the legal profession, and considered the likely changes to come. Pertaining to the major challenges facing the profession, Wilkins noted three structural shifts that have altered the professional landscape for lawyers and big law firms: globalization and shifts in economic power; the rise of information technology; and the blurring of 19th century categories of knowledge organization. These core changes, Wilkins argues, have produced important changes that will impact how lawyers do their jobs for the coming decades. These changes include: a reduction in the asymmetry of legal knowledge between the buyers and sellers of legal services; a shift from reputation to value when it comes to purchasing decisions; and movement away from specific firm relationships to networks of relationships. Wilkins concluded his keynote by noting that given the challenges and changes the legal profession faces, the manner in which we adminsiter legal education must also adapt. Law schools must recognize the new professional landscape and adapt their own modes of teaching for practical workplace success.

More in Globalization:

Wigged Out: Hong Kong’s Lawyers Bristle Over Horsehair Headpieces

Wall Street Journal

Hong Kong Ranks Third Most Popular Destination with Expat Lawyers

Legal Week

Nigeria: Legal Profession in Danger in Northern Nigeria

AllAfrica.com

Professional Development

Law Schools Offering Leadership and Management Training for Practicing Lawyers

National Law Journal

Inspired by the resounding call for law graduates to be better equipped as leaders and managers, law schools are creating programs to capitalize on this need. In 2007, then-Harvard Law School Dean Elena Kagan and Professor David Wilkins brought on board an established HBS professor, Ashish Nanda, to start such a program. With courses available for new associates, law firm leaders and corporate counsel, Harvard Law School’s executive education program is a direct response to the observation that law firm management has evolved into a more business-like approach. Georgetown University Law Center has followed suit with its own executive education program. Days are gone where managing partners need not manage; in order to be competitive in this globalized profession, lawyers much possess more than just legal knowledge.

More in Professional Development:

Leaning Into the Legal Profession

Law.com (op-ed)

Diversity

Cravath’s First Woman Partner Recalls Her Experiences

ABA Journal

Christine Beshar is now a senior counsel at Cravath, Swaine & Moore, but the 1953 Smith College graduate started out her legal career with a short stint as a switchboard operator at a small law firm. She was soon offered a position as an assistant librarian at Davis Polk. Inspired by her parents who ran a farm together in Germany, Beshar envisioned for herself a similar professional partnership with her lawyer husband, Bob. She worked for four years as her husband’s assistant, and eventually read the law and passed the New York State bar exam without attending law school. In the early 1960s she was hired by Cravath and was elected as its first woman partner in 1971. As a working mother, Beshar was motivated by her own experience with a childcare emergency to urge Samuel Butler, Cravath’s managing partner at the time, to establish a children’s center so that all employees at the firm could bring their children to work when circumstances required it. In a related video, Beshar describes the feeling of panic, knowing that she had important meetings on a day when the babysitter did not show up—she now revels in the continuing usage of Cravath’s children’s center which has evolved to allow parents to drop children off any time, not just in case of emergency.

Women General Counsels In Demand; Other Executive Positions Remain Elusive

Crain’s New York Business

In the past decade there has been a growing trend of women ascending to the role of general counsel in major American companies. There are currently 108 female GCs, more than double the number there were in 2001. Since the 1990’s a growing pipeline of talent and increased focus on diversity has led to the growth of women in the GC role. That position, however, is the only management role seeing increases in women, as female CEOs and CFOs remain a rarity, raising concerns that the role of GC is seen as a “C-Suite diversity slot.” While progress has been slow in getting women into top management positions, there will continue to be a steady flow of up and coming talent, since women occupy an increasing percentage of JD and MBA degree recipients.

More in Diversity:

Racial Diversity Efforts Ebb for Elite Careers, Analysis Finds

New York Times

‘U.S. News’ Top Law Schools Fall Short on Diversity

National Law Journal

Justices Are a More Diverse Group than the Lawyers who Argue at the Supreme Court

The Washington Post

Greater Diversity Needed in Judiciary

New Zealand Herald