Law Review: Does the legal profession need *BIZSPIVLAWYER* and ‘commoditised’ legal education?

“Ultimately, lawyering is becoming more of a business than a profession. Some lawyers decry this. Others welcome it. Few deny it. Because the American market cannot grow as it used to, firms will have to find new strategies and make use of sophisticated branding to stand out.”

The Economist

If we start from the first proposition, not unreasonably, that there is no such thing as a legal profession – there are many legal professions – then the needs of top level City law firms, which are remarkably specialist in their work, are very different from the needs of a high street general practice.  There are many shades of legal practice between these two legal sectors.

A second proposition is that all law firms need to be run professionally along the lines of any business service provider.  This does not, of course, mean that all lawyers need to be highly trained in business. I am not sure why law firms appear, over the years, to have come to the conclusion that their businesses are unique and can only be run by lawyers.  This had been analysed by many, including the leading UK doyens: Professor Richard Susskind and Professor Stephen Mayson. It  is also apparent that some law firms are running their practices through management committees or boards, with the managing partner focusing on the business needs of the practice.  Other law firms are bringing in highly trained and experienced CEOs from the business world.  Chambers, also, I am advised, tend to leave the business side to clerks, practice managers and are even bringing in practice directors from the business world – leaving the majority of barristers to get on with the work of being lawyers.

The third proposition is that it is important for all lawyers to have a practical understanding of the ‘business’ of the client.  This applies whether it be a corporate or a client undergoing the stress of divorce, personal injury claims and even crime.  The understanding of the client needs can and should be part of vocational legal education.  It does not, of course, mean that a lawyer needs to be a criminal in order to advise criminals, or a corporate lawyer to have the experience of being an entrepreneur.  Briefing on sector is relatively easy to provide through secondment or specialist training on the job.

It is, I would have thought, essential – especially in an age where law firms are going to be competing with ‘corporates’ in the provision of legal services – for the majority of lawyers within a firm to be highly focused on developing top level law knowledge and the skills of legal practice and not be distracted with trying to become hybrids or worse, jackthelads of all trades.

The fourth proposition is that we may be moving away from the values of ‘profession’ to business’.  There are many who say that many firms have already moved to the category of legal services business provider. That may not be such a bad thing?  The Bar, of course, retains the ‘professional’ status – arguably; with the majority of barristers focused on lawyering and not directly in the development of the business side of Chambers.  But even barristers, as sole practitioners, have to be alive to running their practices as a business if they are to make the money they wish to make and be alive to marketing et al.

David Allen Green, in our Without Prejudice podcast last week, took the view that legal practice in the City was not that interesting or that difficult.  He made the point that a lot of lawyering in the City isn’t about law;  it is about legal skills of litigation, procedure, negotiation, et al and where hard law was needed – the firms took counsel’s advice.  This may be an over simplification, but he has extensive experience of City and commercial practice and is dually qualified as solicitor and barrister and is at the sharp end. I asked a few of my friends and contacts in the City and at the Bar what their view was.  They tended to support David Allen Green’s viewpoint ; one even saying that he was no longer a lawyer, he was a rainmaker who knew the law.  This is fair enough.  He has a team of associates, fellow specialist partners and  access to counsel for the legal stuff – as he put it.

The fifth proposition is that we do not need to worry about the top City and Commercial firms:  They know exactly how to run their businesses and do so without need of assistance from The Law Society.  They rarely trouble the regulators.

What we do need to worry about, as a nation, is the smaller law firms, the less profitable areas of law – becoming less profitable with the cuts in legal aid and the inability of many to afford high quality legal representation. Lawyers can’t be expected to work for free or for low rewards when they could earn more elsewhere. We could end up with legal services, commoditised to absurdity, being provided by low level legal technicians – possibly through online forms or call centres and commercial pressures being brought to bear to settle cases – more often than not to the advantage of the rich or corporate and, of course, the Legal Commoditiser representing the ‘client’.

Are we sleepwalking (to use a much hackneyed phrase) into a nation where only the very rich or the profitable corporates will be able to enforce their legal rights?  We already are in the fields of family law, consumer law, housing law, criminal law…and many other fields of law for the reasons given above.  This is not, of course, in the interests of a first world nation which prides itself on freedoms and justice.  The Ministry of Justice and the professional bodies do need to address these issues.

The sixth proposition is that we need to be very careful of allowing the vocational education providers to park their tanks on the lawns of ‘academe’. I have observed before that the big vocational law schools – The College of Law and BPP Law School, which both enjoy degree awarding powers, are attempting to set the agenda for the reform of legal education by promoting their view of the legal education world order.  I shall return to this in a more detailed piece in the not too distant future. What I seek to point to here is that that we have a remarkable resource in our top and medium level universities with the experience of teaching black letter law.  At this stage, I would be reluctant to advise any student to take a College of Law or BPP University College degree in law – which they claim is more suited to the needs of practice – simply because, despite the future potential and resources of both law schools, they have no track record in the field of first degree or masters level ‘academic education’. Yet.

I am fairly sure that the top firms – rating The College and BPP highly for the LPC –  may not yet have an appetite for their degree offerings?  I could be wrong.  The proof will be when the top firms require their trainees to do degrees and the LPC at these institutions, instead of Oxbridge or Russell Group universities. This may well come in time?  Cardiff University and other traditional university law schools providing traditional law degrees and vocational LPC and BPTC courses are, ironically, better placed, at this stage, to secure such arrangements with law firms.  They do both the academic and vocational stage to a high level.

I mean no criticism.  BPP and The College of Law both have the resources to develop that skill.  It will take time. I just warn about blindly accepting their agenda at face value… or even emulating it through competitive fear.

The point I am making is that we should be wary of changing legal education to merge legal education with practice.  Northumbria University does it, to some extent, but they have the core of academic reputation, the highly qualified academic staff, the research experience to ease the student from academe to practice.  I am happy for The College of Law and BPP to demonstrate to me and others beyond doubt that they have, now, the experience and track record to do so.

Legal education is undergoing change.  Neil Rose, writing in  Legal Futures,  noted the new committee looking into the issue.  I know most of the people by reputation on that committee.  I suspect they will go for evolution..not revolution.  I certainly hope so.

The seventh and final proposition:  We should be very wary of becoming too ‘commercial’ as a profession – where advertising, marketing and networking produce the ‘unintended consequence’ of lowering the reputation of the profession (or the law firm).  That is a very large topic.  The Twlawyer knows what he is doing – but do you want to be Twlawyers?

I am, of course, merely an observer.  I am not a pundit, maven or prognosticator:   But I can, at least, draw a few propositions together for debate? I am also very aware that I am merely scratching the surface with these propositions.  Over to you – at the coal face.  Your views would be most welcome.

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8 thoughts on “Law Review: Does the legal profession need *BIZSPIVLAWYER* and ‘commoditised’ legal education?

  1. The” legal aid lawyers “defending parents in child protection cases are by and large a disgrace to the profession.
    They inevitably advise parents to “go along with social services” admit all they are accused of whether they agree or not.They inevitably tell clients not to opose interim care orders and more often than not prevent parents speaking in court at all !That way many bewildered mothers lose their babies to adoption without saying a word!
    How many times have I heard the sad story from mothers whose babies have been confiscated at birth?
    “They said my baby was at risk of emotional abuse and told me that I would go to prison if I talked about it to friends or to the press ! ”
    What a horrible state of affairs and one that could be put right if the gag on parents was scrapped ,and children could only be permanently separated from parents after a hearing by jury.

  2. Ian Josephs – While I appreciate and understand your desire to draw attention to your particular experiences (and your blog) – this is the second (third?) time you have commented on my blog on this issue in much the same vein?

    I am not a Family Law blog. I shall let the comment stand this time. But, please… no more. I do not have the expertise in your area to even comment. There are many good family law blogs about to put your arguments.

    The post was not about the specifics of the failings of legal aid lawyers.

  3. A truly excellent and thought-provoking post.

    As a barristers’ clerk of over 20 years, I have plenty of experience of observing the operation of professional vs. business values, as referred to in your fourth proposition,

    The Bar, as you infer, is pretty uncompromising in prioritising its professional values above all else. I have many experiences of this approach resulting in a successful legal (and therefore commercial) outcome for a client but, at the same time, failure in terms of client experience. In such cases, I have learned, the likelihood of the barrister being instructed again by that client is often, perversely, reduced. When the client (whether lay or professional) is a large provider of work it is difficult to ignore such a signal from the marketplace. On any rational view it is clearly more important to have a successful ultimate outcome than a nice touchy-feely experience. But as we know markets often behave irrationally.

    Of course, the ideal is to reach the right compromise – many barristers succeed in this – and it may be that in time the Bar will evolve to achieve this across the board. In the meantime, I am grateful that this shortcoming virtually defines my role as a practice manager.

  4. Jeremy – it is an interesting topic. I’ve read Susskind and Mayson fairly extensively – and they much of real value to say.

    My main concern is how the nation effectively funds good legal representation at the less well paid ends of legal work and for those who simply cannot afford good legal representation.

    The old Darling J aphorism… justice is open to all…like the doors of The Ritz hotel….. must be consigned as a concept to history?

    The Commercial / City firms / Chambers will never have to worry. We discussed that in our podcast, as you know.

  5. A most interesting post – yet again reflecting your long experience and detailed knowledge of legal education.

    Just on the point of legal aid. The cuts made to criminal legal aid by the last government were quite extensive – especially in Magistrates’ Courts. Those have been extended by means testing in the Crown Court. In civil matters, the present MoJ’s proposals for cuts go just about as far as they think they can get away with whilst maintaining minimal adherence to the European Convention on Human Rights. There is also huge emphasis on “mediation” which has, so it appears, suddenly become the “cheap” panacea. (The price will of course rise). I fear that the days of the “Ritz Hotel” are returning with a vengeance.

  6. Mike – thanks for your response.

    The thrust of my point (and I fear this has been clouded by my illustration from personal experience) is that there is a risk of the market unwittingly leading the profession down a route which ultimately results in a less effective service. It is only professional values that stand in the way of this.

    In this concern, I make no distinction between the well and less well-paid ends of the profession.

    As to your general access to justice concern, I think we are both hopeful (but perhaps not optimistic) that the advent of “Tesco Law” may go towards finding some solution. This is of course a different and complex subject, for a different post – another time, perhaps …?

  7. The image of lawyers in general is diminished by “plea bargaining” (a practice imported from the USA?).
    Many a time do lawyers urge clients to plead guilty to something they have not done in order to avoid the possibility of a longer sentence or a more severe penalty !
    Barristers in these cases collude with their clients to commit perjury and both should be punished if caught at it !
    I know the theory is that the barrister is duty bound to lay out the options before the client who can then choose a course of action.
    In actual practice extreme pressure is more often than not put on the client to make small admissions even if not true because the evidence seems on balance to be against the client.Worse still many an innocent defendant has been persuaded to plead guilty in a criminal case to be rewarded with a suspended sentence instead of a custodial one !
    Justice flies out of the window !

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