Morgan, T D --- "Educating Lawyers for the Future Legal Profession" [2006] LegEdDig 26; (2006) 14(4) Legal Education Digest 11

Educating Lawyers for the Future Legal Profession

T D Morgan

[2006] LegEdDig 26; (2006) 14(4) Legal Education Digest 11

G Wash U L Sch Public & Leg Theory Working Paper No. 189, 2006, pp 1–18 (forthcoming in the Okla City U L Rev)

The primary materials that law students examine describe events that have already happened, but each time professors select issues to address, they necessarily look ahead. It is hard for us to comprehend, but today’s students are likely still to be practising law in the second half of the 21st century. None of us knows much about what the world will look like in 2050, but the challenge of legal education is one of helping students navigate toward that indefinite future. To meet that challenge, we must think about what future lawyers will do. Conversely, as we think about coming changes in legal education, we may also get a richer sense of what kind of people tomorrow’s lawyers are likely to become.

While there is an interchange between lawyer and client, for most lawyers, most of the time, professional activity is dictated by what their clients want and need, not by how the lawyers themselves would prefer to spend their time. With few exceptions, for example, lawyers do not initiate business deals; clients bring the deals to them. Lawyers may contribute to negotiating and documenting transactions, but the underlying economic activity has little to do with the lawyer’s role. So, too, with litigation. For the most part, lawyers do not initiate disputes. Clients bring them controversies, some of which may lead to litigation, but the level of litigiousness tends to have more to do with the clients’ activities than it does with how lawyers would prefer to use their time.

The necessary implication of this reality is that the future of the legal profession is not in the hands of lawyers. We can tinker around the edges of our rules of professional conduct. We can issue calls for more courtesy and civility in lawyers’ personal and professional dealings. But ultimately, looking back from the perspective of the future, what lawyers want to have happen will likely be seen as tangential to the way the work of the legal profession actually develops.

First, lawyers’ clients will face a degree of competitive pressure unknown to their parents and grandparents. The intense competition that results will ultimately benefit customers everywhere, but our clients will experience it in the form of an inexorable pressure for cost control. Second, clients will increasingly have to think globally. The day has come and gone when national borders — and certainly state borders — are of primary significance in deciding how a client’s transaction should be structured or the client’s matter litigated.

Third, clients are likely to become increasingly impatient with what they see as the complexity and inflexibility of legal rules. Jurisdictions are likely to try in various ways to attract investment and to protect their residents, so legal complexity will be inevitable and compliance with the law will be expensive. Fourth, clients are likely to expect lawyers to understand their business or personal affairs, not just their apparent legal issues. Future clients are even more likely to want their lawyers to resemble multi-disciplinary consultants than legal technicians.

Fifth, the need for legal help from those who understand the client’s problems well is likely to lead clients to assume more responsibility for their own legal assistance. Sixth, clients are likely to see many legal services as ‘commodities’ rather than as unique and worthy of a premium fee. Lawyer competition to provide those services will be intense. In part, this development will reflect the impact of information technology on the delivery of legal services.

Seventh, all of these developments will encourage clients to be even less loyal to their lawyers than they are today. With the ubiquitous availability of world-wide communications, threats that clients will turn elsewhere will tend to dominate every lawyer-client relationship. Eighth, in all of these developments, there will be many clients whom the future has left behind. Provision of services to the poor and middle class has long been a serious concern for persons worried about justice for all. The impact of globalisation on those least able to cope with it will be a major reality for future lawyers, and the challenge of providing what we traditionally call pro bono services will only increase as the changes suggested earlier become reality.

A consistent fear among lawyers throughout the century was that the supply of lawyers would soon exceed the demand for their services. So far the expected lawyer surplus has never seemed to materialise, but changes in the world lawyers face are clearly now before us.

First, the days of lawyers as talented generalists are likely over. Provision of commodity legal services will become common and lawyers will have to learn to compete for the opportunity to provide them. Second, the days of lawyers specialised in law alone may be ending. Many lawyers are likely to need to develop expertise in areas beyond the law. Management expertise will likely be one valued skill. Finance issues are similarly likely to be drivers of business success and lawyers who can understand and intelligently address such issues will be more valuable than their less-adaptable counterparts.

Third, law firms have long tended to market themselves as entities. Law firms will increasingly become shopping centres for clients. Rather than using one firm for all its needs, clients will look over the list of lawyers at several firms and use those that it wants for the particular needs that arise. Law firms, in turn, will have to diversify their service offerings so as to diversify their risk and keep or obtain the chance to deliver at least parts of a client’s legal services.

Fourth, in terms of meeting the needs of individual clients, the next significant group of suppliers are likely to be those who will help clients help themselves. Banks and insurance companies, for example, are also likely to want to provide estate planning services or assist lay executors in the administration of estates. Bar organisations are likely to resist such non-lawyer activities with all the resources at their command. It will be said to be not only the unauthorised practice of law by a corporation, but a traditional conflict of interest as well, because the corporate sponsor might also try to engage in various other business transactions with the clients. However, those objections will not necessarily succeed.

Fifth, tomorrow’s wise lawyers will develop the expertise to maintain the flexibility to stop being lawyers, at least in private firms. The competitive forces that have made lawyers miserable can be harnessed to provide them with hope. The point is not that lawyers must choose between law firms and these other ways to use their training; it is that law firms competing for people who have alternatives will have to offer comparable opportunities or lose the people upon whom they rely for the source of their competitive strength.

If it is true that the world lawyers face is rapidly changing, it should not surprise us that legal education will be called upon to respond in ways that help students deal with these new realities. First, because the era of the lawyer-generalist is over, detailed, specialised understanding will be increasingly critical to a graduate’s success. We would focus on helping our students ‘think like a lawyer,’ but our model would be a 21st century lawyer.

Second, the push toward law school homogeneity over the last fifty years should end. The diversity of student interests and the range of potential uses of a legal education are so great that, ultimately, the demands of law students and a recognition of schools’ self-interest are likely to require law schools to concentrate their efforts in subject matter areas where they can quickly be seen as among the very best. Third, schools are likely to need to find more efficient ways to deliver a legal education. The cost of legal education for most students must come down, or at least not continue to rise as rapidly. Part of the cost and breadth of law study can likely be reduced by distance learning. Compressing the time required for the law school experience may prove to be another way to reduce costs.

Fourth, law schools should move beyond teaching law to recognising that education about non-legal matters will be increasingly important to lawyers. Learning corporate finance will be equally or more important for a student than taking another course in corporate taxation. A year in China learning the Chinese language will set a future lawyer more apart from her contemporaries than taking a half-dozen courses in real estate or trusts. Universities could consider a move to a three-four pattern of law study, with the fourth year in law school consisting of non-law courses. Fifth and finally, law schools will increasingly have to recognise that continuing legal education will be a larger part of their program than it traditionally has been.

Ultimately, the shape of today’s law schools can best be determined by the shape of the world the next generation of lawyers will face. We cannot know all the details of that world, but both law schools and their graduates are likely to play a key role in it, and we can know enough to start planning how our law schools should respond.