Why can’t a lawyer be more like a share capital corporation? A reflection on the CBA Legal Futures Final Report

Robert_Coote_Stanley_Holloway_Rex_Harrison_My_Fair_LadyHenry Higgins, in My Fair Lady, famously sang, “Why can’t a woman be more like a man?”  For Higgins, an elocution teacher who traded in British class prejudice by offering to improve clients’ social standing through posh talk, the education of a woman was essentially a troublesome Alternative Business Structure (ABS) – he could work with the moving parts but the brain remained a mystery.

The Final Report of the Canadian Bar Association’s Legal Futures Initiative, released today, appears to be a multifaceted atlas mapping out a strategy for renewal of Canada’s law industry.  There are many good thoughts in it, including a premise that “The future for lawyers is as much about ethics and values as it is about economics and value.”  That equation is somewhat betrayed by the simple textual metric that the word “value” in the sense of economic value is used more than twice as often than in the sense of ethical values.  Review of the report from beginning to end bears out this imbalance.  In reality, there is no shortage of Darwinian zeal when it comes to the core message: Change or Die.

At the very heart of the report, starting at p. 40 in a section called LIBERALIZATION OF REGULATIONS, is the core message that lawyers must be freed from current practice rules to allow integration into an unregulated market for information and knowledge services. The stark vision is that ABS is already among us.  It will move law societies to expand their remit from the licensing of lawyers to the regulation of a panoply of entities, ranging from share-capital law firms to itinerant legal kiosks in the lanes of shopping malls.  We will be working along side software engineers and accountants, and in some cases taking our orders from them.  A technocratic model of the Canadian Bar looks like our destiny.  Instead of standing up for lawyers, the report authors’ first recommendation is to embrace law firm “ownership, management, and investment by persons other than lawyers or other regulated legal professionals.”

Stockholm Syndrome, or Capture-Bonding

In one way of looking at the situation, our profession has scared itself into loving counter-ethical economic forces that have captured hold of us. We flocked to the bookstores and took The End of Lawyers? up to the cottage and never got past the doom and gloom to get to the cheerful bits about how we will love greeting clients from cubicles at legal call-centres.  (One Toronto firm already has lawyers at cubicles.)  Susskind’s analogy of bespoke law, a reference to the marginalization of Savile Row tailors amid the rise of cheap, mass-produced clothing sold in hypermarkets, is part of a bleaker outlook on a maladaptive legal profession in the throes of mass extinction.

The market reality for a diverse profession is that we must allow those who wish to pursue new ways of delivering legal services to innovate.  Resistance to this concept will only ensure that others, such as accountants or management consultants, fill the lacuna in order to gain footholds on lawyers’ core business.  As adventurers, some of us have already explored methods of making the most of an uncharted world.  As followers, many of us have parroted the line that we must embrace ABS as the future of law, not knowing what to expect.  As Luddites, others have looked for ways to sabotage these new machines.  As conservatives cast in the old Upper-Canadian cottage-industry mold, still others have shuttered the shop and left the practice or have become “alternative” lawyers such as mediators or arbitrators.

As in the case of many developments in the legal profession, the ABS model is not at all informed by the perennial afterthought, viz. the retention of women in the legal profession and the democratic representation of other equality-seeking groups.  Similarly, the treatment of this issue in the report is noticeably separate.  At p. 48, the report does admit that “There is no evidence to demonstrate that the market alone will correct the continued homogeneity of the Canadian legal profession.”  If corporate Canada is a measure, ABS might in fact give a diversity boost to the legal industry, which has lagged far behind on the diversity file.  However, the premise that a lawyer is an element of a business structure is a standardizing force acting on a traditionally sameness-driven profession.

In a country where diversity sets us apart from most other countries plagued by ethnic tensions arising from homogeneity and patriarchy, law has struggled to match the strides made by the rest of Canadian society.  Indeed, we have not figured out that the absence of lawyers elected to Parliament and provincial legislatures in recent years has much to do with the fact that law and judiciary are not representative of electors.  In the 21st century, it does not take a feminist or a race activist to warn that a trend toward commoditization of a white-collar industry will default to using the status quo as a template for cloning specialized revenue-centres out of current law practices.  What remains to be done is an examination of leveraging equality and diversity as values-driven kilns to fire up distinct legal business models that do not simply follow commodity-driven commercial businesses but in fact create more sophisticated lawyer-driven entities.

It is hard for a national law association to make a pronouncement that represents such a divergent group.  It is also the CBA’s role to provide leadership.  In large part, it has done so and has made effort to represent a majority of its membership stuck somewhere in the middle or toward the conservative end of the spectrum.  Yet, like an ecstatic Miranda in Shakespeare’s The Tempest wondering at the Brave New World, the report sides decidedly with the adventurers and does not shy from portraying the profession’s reluctance as ingrained conservatism.   The report adopts this theme essentially by labeling the current method of lawyering “feudal.”  It quotes a lawyer touting the value of legal outsourcing:

The legal industry has to a large extent been operating in feudal times … in the sense that work has been done in the same way things were done in feudal times.  For example, if you were a cobbler you went out and purchased the leather and made the shoe yourself.  Then you had the Industrial Revolution: now the shoemaker sources out all the pieces and they find the lowest-cost way to do it.

Reading this, one might diagnose the our profession as suffering from Stockholm Syndrome, the psychological condition of empathy for one’s hostage-takers.  As an observation of market pressures, the statement has some legitimacy.  As a desired future for our profession, however, can we really live with foisting the Industrial Revolution on our law grads?  Blake’s famous poem about that period in European history serves as a foil to the charge that we cobblers must give up our shops and join the ranks of shoe-assemblers:

And did those feet in ancient time
Walk upon England’s mountains green:
And was the holy Lamb of God,
On England’s pleasant pastures seen!

And did the Countenance Divine,
Shine forth upon our clouded hills?
And was Jerusalem builded here,
Among these dark Satanic Mills?

Bring me my Bow of burning gold;
Bring me my Arrows of desire:
Bring me my Spear: O clouds unfold!
Bring me my Chariot of fire!

I will not cease from Mental Fight,
Nor shall my Sword sleep in my hand:
Till we have built Jerusalem,
In England’s green & pleasant Land

Visit the Ontario Bar Association’s successful public campaign, Why I went to law school, and the stories told by practicing lawyers does not include a single story about going to law school to become a legal outsourcer or working in a commodity legal practice.  Rather, the stories of these talented, hard-working professionals sooner fit the mold of Blake, not wanting to “cease from Mental Fight” to champion the causes of justice, to make deals happen, to build businesses and institutions.   What is clear from these contrasting views of the legal profession is that, while the future of law may turn out to be as predicted in the CBA report, the legal market cannot be driven entirely by the so-called demand-side ‘value proposition.’  If law firms are to be like England’s textile mills, who will be the lawyers who will stand at the machines?  What values will they have, and what values will they protect?

The “Mental Fight”

Yes, call us old-fashioned.  No matter how many telecoms we build, stadium rock concerts we manage, or war criminals we prosecute, the inner lawyer needs to know that scattering peppercorns over an agreement gives the document the strength of the King’s law, and that modern tort law started with a snail caught in a bottle of ginger beer.  The quirky, history-laden education that lawyers get in law school prepares us for unique mental processes.  Providing value to clients is, first and foremost, not just about competitive advantage but about helping clients navigate a world made of rules, procedures and community sensibilities.  A future of law in which these skills and talents give way to more technocratic ideals and methods will, unless lawyers provide true leadership, make our evolved future selves unrecognizable.

The commodity theory of legal services is driven by a corporate culture which sees law as a formality or transaction cost.  To some extent, one can see how working on a stack of “whereases” does not engage our preconceptions of professionalism. The current model of legal ethics, informing provincial rules of professional conduct, are based primarily on barrister dilemmas in relation to clients, courts and the wider public.  So the subtext is that the client does not care what kind of lawyer is working in the legal engine room as long as the ship keeps moving forward.  The business fallacy of this thinking is, of course, that nothing less than a fully trained lawyer will risk drafting clauses that do not make either legal or business sense.  A million words will be of no value if an errant word leads to ‘bet the farm’ litigation.

Canadians must decide whether their stake in law requires a professional with limits on what he or she is prepared to do.  The alternative, to a great extent already here, is an atomized, self-interested law licence for hire.  Instead of trusted advisors helping the powerful to remain responsible citizens, the alternative is a scribe paid to bullet-proof the client against liability all while holding others to their bargains.  Canadians must decide, and we as lawyers have to be prepared to put our foot down.  It is the failure to put a collective foot down, that makes one feel the report remains unfinished.

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