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February 15, 2007

MUCH ADO ABOUT NOTHING

Billy_shakespeare That Billy Shakespeare – he really was something when it came to lawyers, wasn’t he?  Putting aside one of his most, if not his most, famous quotes about lawyers – "The first thing we do, let's kill all the lawyers" - here’s another that often jumps to mind for me:  “Silence is the perfectest herald of joy: I were but little happy, if I could say how much.”  This latter quote, from Act 2, Scene 1 of Much Ado About Nothing, captures well my feelings about the “emotional response” generated on The Wall Street Journal’s Law Blog under its postings, “The Law: A Profession, a Trade or Both?” and “The Law: A Profession, a Trade or Both, Part II.”  These postings and the subsequent, related comments were generated by an OpEd piece in the WSJ on January 26, 2007 by Cameron Stracher entitled “Meet the Clients.”  What I hoped would be a serious discussion about the flaws in the current system of legal education somehow became a debate about whether the practice of law is a “profession” or a “trade” and quickly turned into an exercise in the blustering that Stracher lamented and that Professors Frankel and Gordon don’t teach.  It was such a large rabbit trail that dealt with a symptom and not a problem that I expected to run into Grace Slick’s 10-foot large Alice along the way.

For about 30 years now, I have said, and continue to believe, that law school taught me only 2 things:  how to think like a lawyer and how to do legal research.  It didn’t teach me how to practice law, and it certainly did not teach me anything about the business of practicing law (the latter subject which, of course, is the focal point of this blog).  From what I can tell, not much has changed in that regard with respect to legal education.  When Professors Frankel and Gordon say, “But the best practice will come after law school, with maturity, with watching the senior partners and with learning from mentors,” most people in other lines of work call what they’re describing as “on-the-job training.”  Whether you call the practice of law a “profession” or a “trade” is irrelevant; OJT is how lawyers actually learn to practice law – and, it’s the only job I know where you can be paid around $145,000 a year to learn how to do what it is that you’re being paid to do and have your employer’s customers/clients effectively reimburse your employer for its costs to train you via submission of bills that include the “billable hours” you spent on client matters to learn how to practice.

In a recent posting on this blog, I focused on the pressures being exerted today on law firm business models and the need to change.  I drew heavily in that posting from a recent speech by Mark Chandler, Cisco’s general counsel, and from a case study by Harvard Law School Professor Clay Christensen and Scott Anthony.  In his speech, Chandler said,

The growing scope of knowledge availability will endanger this system.

. . . [T]he greatest vulnerability of the legal industry today is a failure to make information more accessible to clients, to drive models based on value and efficiency. The present system is leading to unhappy lawyers and unhappy clients. The center will not hold.

In their case study, Professor Christensen and Anthony said,

. . . The growth of specialization means that most corporate legal work does not involve complex problem-solving. With the right experience, specialists can easily recognize patterns and apply familiar tools so that they do not need to “reinvent the wheel.” Pattern recognition dramatically increases efficiency. Hourly rates assume everything requires complex problem-solving.

I concluded by saying,

Faced with the prospect of innovations that likely will be disruptive to their business system that “looks like the last vestige of the medieval guild system to survive into the 21st century,” access to what law firms know, how they get it, how they use it, how they deliver it, and what they get paid for it, is under attack.

It seems to me that we’d all be better served if the debate isn’t on whether the practice of law is a “profession” or a “trade,” but instead focuses on how does a system under such pressure get fixed, starting with the education that lawyers receive.

By the way, Professor Christensen and Anthony also commented that,

. . . But because corporations accept the sole-source market, law firms play a cat-and-mouse game with the billable hour and cost-plus pricing, hoarding productivity gains and saddling clients with both cost and outcome risks.

. . . It is extremely difficult to avoid wasting corporate assets within the confines of the sole-source/billable hour/cost-plus market. With one hand, law firms give discounts on hourly rates to their largest clients. With the other hand, they take back what they have given by raising the base hourly rates to which the discounts are applied and increase the number of hours they bill to do the same work. Law firms are masters of the cat-and-mouse game of the billable hour. As long as they respect the procedures mandated by the law department, law firms can circumvent any attempts at cost reduction by controlling the two key variables—the base rate and the number of hours spent.

Seems to me that a lot of lawyers must’ve missed the law school course(s) where, according to Professors Frankel and Gordon, future lawyers are trained “to be trustworthy even if there are no police around.”  But, then again, values like honesty, trustworthiness, and integrity were things I was taught by Professors Mom and Dad long before I even knew what a lawyer was.

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