The New Normal
Can Less Be More? Professionalism in the New Normal
Posted Oct 12, 2011 8:55 AM CDT
By Paul Lippe
Several recent stories have raised issues about what we might call “Professionalism in the New Normal.”
The first story comes from IBM General Counsel Bob Weber’s op-ed in Bloomberg Business Week. Weber argues against the U.S.’ following the lead of the U.K. and Australia to allow third-party ownership of law firms.
Those of you who know my views can assume I’d be inclined to agree on most matters with the GC of IBM, but in this case the article probably raises more questions than it answers.
Ron Friedman sensibly asked why clients shouldn’t be the ones to choose. If IBM doesn’t want to hire a firm with outside ownership, it can make that decision, but if another client thought a firm with outside ownership could be more effective, they could make that choice as well.
Many folks have asked, in a legal market where many firms are indebted to their banks and are very bottom-line focused, to what degree would third-party investment really change their behavior?
My question: What does Weber’s concern imply about IBM’s business? When I get a call from a sales rep for IBM global services wanting to provide outsourced computing and data storage for my company’s sensitive and privileged data, do I need to worry that IBM can’t honor its contractual obligations and act in its long-term self-interest because it is investor-owned? (Of course, there are many differences between what lawyers do and what IBM does when it manages computing and stores data for a customer and its competitors.) There are always conflicting pressures in any organization, but what evidence is there that one form of ownership necessarily adversely impacts ethics?
The second story involves AttorneyFee.com, a service that publishes lawyers’ fees. Scott Greenfield, a generally very savvy lawyer, criticizes that site for further “commoditizing” law. I don’t see how price transparency is a per se bad thing, and large, sophisticated clients already know the fee structures of their firms—Tymetrix has even published a comprehensive survey of firm fees. So why would it be bad for clients who may be hiring a lawyer only once in their lives to have more information?
The third story comes from the New York Times, reporting on the new recommendation from the U.S. Preventative Services Task Force that doctors stop doing prostate cancer screenings because positive results lead to many surgeries with adverse side effects but cure few cancers. “Unfortunately, the evidence now shows that this test does not save men's lives. There was no difference between the screened and unscreened groups in overall deaths. …”
This new recommendation challenges our inclination as professionals to think “more is better,” “don’t you want to know?” and “we should leave no stone unturned.” But if the test isn’t beneficial, then more isn’t necessarily better. Unsurprisingly, many urologists and other physicians have attacked the new recommendation.
Let me suggest that we’ll see increasing tension on what matters most to professionalism, which we might call Client-First versus Professional Autonomy. Client-First says that the paramount goal of a professional is to put the interests of the client (and sometimes the overall system) ahead of those of the professional, and that’s what distinguishes professionals from mere “salesmen.” Professional Autonomy says that in order to do their jobs, professionals need a zone of autonomy and discretion—you wouldn’t want criminal defense lawyers supervised by prosecutors. But let me respectfully suggest that Professional Autonomy is not an end in itself.
As we go forward, the changes implied by the New Normal will not make Client-First any trickier—the core principles will remain consistent. But most of those New Normal changes (e.g., transparency, competition, and technological innovation) will challenge Professional Autonomy. To the extent that lawyers (or doctors or other professionals) use regulatory means to foster Professional Autonomy not in pursuit of Client-First, but simply as a matter of self-interest, it will undermine public confidence in the profession.
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, 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.