The New Normal

Profession at a crossroads: Will lawyers lead, follow or get out of the way?

Posted Jan 28, 2016 8:30 AM CST
By Paul Lippe

Paul Lippe

In October, I wrote about Richard and Daniel Susskind’s new book, The Future of the Professions: How Technology Will Transform the Work of Human Experts.

The Susskinds will be visiting the U.S. (Cambridge and New York City) in a few weeks, so I thought it would be worth a little more time exploring the implications of their work. (Read my Q&A with Richard Susskind.)

The Susskinds identify a number of trends that run across professions:

• The displacement of some basic tasks by technology and process (broadly referred to as “commoditization,” but I would suggest that is not a useful term).
• Rapidly changing context in which professional work is delivered.
• The emergence of nontraditional substitutes to the traditional regulated service providers, including now the re-entry of the Big Four accounting firms into law.
• Potential for machine learning to substitute for some of the “higher order” work of professionals.

Image from Oxford University Press.

The most important section of the book describes eight “objections and anxieties” to change across the professions:

• Loss of trustworthy institutions.
• Loss of moral character.
• Loss of old way of doing things.
• Loss of personal touch.
• Loss of empathy.
• Loss of meaningful and fulfilling work.
• Loss of pipeline of expertise.
• Loss of roles for professionals.

The Susskinds argue that these objections and anxieties conflate the current activities of professionals with their underlying social purpose, compare an idealized view of what professionals are doing without acknowledging problems of reach and cost, and assume a world of lawyers more than laws. Or, as Gillian Hadfield writes in Law for a Flat World, her forthcoming book:

The best definition of “law” that I’ve come across understands that law is just another way in which people make rules. Harvard Law Professor Lon Fuller coined this definition in the 1960s. “Law,” Fuller said, “is the enterprise of subjecting human conduct to the governance of rules.”

The reason general counsel have emerged as leaders of the profession in the last generation is that they understand that organizations are run by rules. Whether those rules govern disclosure, or what the organization has to do to comply with a contract, or how a compensation system works, the rules are integrated and generally managed in real time by imperfect people and systems.

I had dinner a few weeks ago with an old neighbor who is now CEO of a medical device company. He described for me their strategy around MRI or ultrasound “smart devices.”

• Medical devices will be connected to the Internet.
• Medical devices will link to patient data in an electronic medical record.
• Devices will incorporate various kinds of rules, some of which are legal (where can data be stored), some on which are quasi-legal (insurance reimbursement rules), and some of which are medical protocols (drug-drug-interaction, hospital treatment protocols).

The system, the doctor and the patient will have information and decision-making shaped by various rules, but they won’t know (or care) which of those rules are based in legal content. Of course a similar transformation is taking place in the world of self-driving cars. So we’re moving to a world where rules are ever-more important and ubiquitous, but the historical legal professional standard of reflective inquiry and advice with respect to those rules won’t always be the norm.

For my money, we face two crossroads:

• Lawyers (and law schools) can either be the folks who help refine and simplify legal rules, integrate them with other kinds of rules, and help design these kind of systems—including how to incorporate ethical and social concerns—or they won’t.
• Lawyers and (law schools) can better understand more about other disciplines, figure out “design,” get better at taking on feedback, innovating, and achieve their natural leadership role in cross-disciplinary work, or they won’t.

There has been some interesting work by Dan Katz about the notion of a “polytechnic law school,” to which I’m generally very sympathetic. Clearly, lawyers need to develop greater technical competence. But at the same time, there may be an even more interesting and bigger opportunity for law schools, which had historically been the “liberal arts graduate school,” to refresh that role. In a world of specialization, silos and technological substitution, lawyers can be the cross-disciplinary leaders, but we need to better understand how different systems operate, not assume that the world is centered in appellate decision-making. In many respects, law was the “first profession,” and by nature of its “meta” rule in society, it needs to be a profession that can refresh and manage change, integrating with other fields. But to do that we need to step out of our own silos.

At the end of the movie The Big Short, two of the young traders who anticipated the bursting of the mortgage bubble sneak into the offices of Lehman Brothers. As they gaze at the empty trading desk in amazement at the failure of so many “smartest people in the room” to see the inevitable collapse of the mortgage-backed securities market, they ask: “Where were the adults?” (If anyone can find the scene in the movie or in reality where the “best and brightest” lawyers told the banks to stop syndicating mortgage-backed securities, please let me know.) If lawyers and professionals are to maintain their status as adults, we need to manage our own affairs and help others in ways that preserve the best of the professions in a time of change. The Susskinds help point the way.

Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.

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