Can we preserve the best values of the legal profession in the face of the commercial and technological change that constitutes the “New Normal”?
As our world grows more interconnected and complex, and as law grows more pervasive, law is evolving from an activity that is an occasional part of an organization’s life (think an appellate argument in a company’s patent defense suit) to an activity that’s ongoing and embedded (think how a drug company which holds customer data has to manage the security and privacy of that information around the world).
Our traditional notions of professionalism are around intent, expertise, objectivity/distance, ethics and uniqueness. But those values often appear to the client as expensive, unaware and “superior.” Modern lawyers are focused more on outcome than intent, integration rather than distance, awareness and empathy rather than nominal objectivity.
While not a perfect analogy (because they are observers rather than actors), think of “embedded” journalists in Iraq or Afghanistan. They are operating with a far greater level of insight and awareness than the traditional journalist, but there’s no evidence they’ve lost their objectivity.
In the New Normal, embedded lawyers recognize law as a system of information and management, where their challenge is to impact the outcome for lots of distributed actors in a complex system where law is only one part.
If lawyers stick only to the traditional self-conception of the profession (in the U.K. they call it “bespoke” or custom), law can only get more expensive, less effective and more marginalized.
But as my friend David Johnson (formerly of WilmerHale and CounselConnect, now of New York Law School) wrote to me recently, efficiency is hardly the highest value for lawyers:
“Suppose, as a thought experiment, one took the view that the highest calling of the profession is to help people (and corporations) figure out how to ‘do the right thing’ — seek justice, avoid evil, prevent abuses of power, etc.? What, in the new technological environment, does that mean? Lots of interesting things. Using Kiiac to analyze contracts and avoid outliers. Using corporate data systems to detect customer abuse and flag questionable calls. Avoiding wasteful adversarial stances, to be sure. Building compliance systems ahead of the fact. etc.
“The great lawyers of the prior age were relationship lawyers (Lloyd Cutler comes to mind). It WAS a bespoke business. Maybe the great lawyers of the new age will be system designers. But, if, as you suggest, the trick is preserve core professional values, then ’those values have to include not just increased efficiency but also helping people (clients) to act responsibly, civilly, productively.’”
To highlight the contrast, we can look at two developments from the last few weeks.
The New York Times ran two profiles on legal outsourcing, entitled “Legal Outsourcing Firms Creating Jobs for American Lawyers” and “At Well Paying Law Firms, a Low-Paid Corner.”
The pieces can only be described as cock-eyed, starting with a whole set of unstated and generally false assumptions about what lawyers do and what outsourcing is and then viewing the change with a jaundiced eye. Apparently, lawyers who think they come up with a “unique” solution to a question that’s been answered a hundred times are real lawyers; lawyers who think about how to make that answer more easily available are “commodity” lawyers.
A more serious and substantive view comes from Atul Gawande, the U.S.-based physician and medical author, who gave the commencement address at Harvard Medical School contrasting the craftsmen versus system approach to medicine:
“The core structure of medicine—how health care is organized and practiced—emerged in an era when doctors could hold all the key information patients needed in their heads and manage everything required themselves. One needed only an ethic of hard work, a prescription pad, a secretary, and a hospital willing to serve as one’s workshop, loaning a bed and nurses for a patient’s convalescence, maybe an operating room with a few basic tools. We were craftsmen.”
But, Gawande goes on to say that the complexity of overall treatment (including the cost) is now running counter to physicians’ desire for autonomy:
“The public’s experience is that we have amazing clinicians and technologies but little consistent sense that they come together to provide an actual system of care, from start to finish, for people. We train, hire, and pay doctors to be cowboys. But its pit crews people need.”
According to Gawande, one of the reasons he focused on these issues is that in talking to his kid’s school principal, he found the school was preoccupied with health care costs, not education, because health care costs were diverting resources and choices away from education.
Finally, I received a great summing up (emphasis added) of all this from my friend Mitt Regan, a professor at Georgetown Law and head of its Center on the Legal Profession:
“Some of you may be familiar with Harvard Medical School professor Atul Gawande’s essays on modern medicine in the New Yorker and in book collection. There are many differences between medicine and law… Nonetheless, I think that Gawande’s address at the Harvard Medical School commencement last week provides some insight into problems in professional practice and professional education that stem from undue emphasis on individual virtuosity at the expense of collaborative problem-solving.
“It seems to me that one implication of his remarks is that fashioning a meaningful conception of professionalism that takes account of the collective demands of modern professional experience requires that we move beyond between binary oppositions such as creativity vs. efficiency, craft vs. commodity, and autonomy vs. routine.”
Paul Lippe is the founder and 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. Lippe formerly was an executive at the electronic design automation company Synopsys and later was CEO of Stanford SKOLAR, a medical digital library and e-learning company sponsored by Stanford Medical School.
Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, and Patrick Lamb, founding member of Valorem Law Group. Paul and Pat spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. We hope you will join their discussions.