Stop it with the Stupid Rules

Ryan has previously waxed poetic about how some mandatory bars are imposing odd and counterproductive ethics rules and opinions.

This topic resurfaced for me recently as I have been asked to present to a futures committee of a mandatory bar in November. They are wanting me to give them a picture of all that is going on with pricing, legal project management and numerous other developments in the market.

This is an opportunity to share my thoughts in a neutral environment - where I can speak quite freely. I had been giving some thought to how to best utilize such an opportunity. My mind wandered through various subjects and how I can best educate them on the realities of this changing market. My mind then shifted to what can a bar do to help its members. A lot of this thinking was around how the bar can provide resources to help its members do better pricing and bring efficiencies to their practices.

And then it hit me: Those Stupid Rules.

Oh opportunity.

Having previously worked for a mandatory bar, I have more knowledge than I care to on how ethics rules and opinions are generated. The core question at the base of every issues is "Could a client be harmed?" or some variation on that theme. On the surface this sounds perfectly reasonable, since protecting the public is part of a mandatory bar's charge. In practice however, based on lawyers' risk averse natures, this unit of measure is usually taken to an extreme.

Take for example Ryan's target; the Texas Bar Ethics Opinion 642. I can predict how the discussion went around this issue. The core question was: Could a client mistake someone with an "officer" title working at a law firm to be a lawyer? At the extreme the answer is: Yes. Someone, somewhere could make that judgement. And if that's the case, there is a concern that using those titles could be interpreted as holding oneself out as a lawyer. And we all know the danger in that. (For normal people out there, the danger is that someone might pay this 'non-lawyer' for legal advice.) Given that string of logic, it makes perfect sense to issue an ethics opinion prohibiting law firms from using that title.

Back in reality - this type of rule actually inhibits a law firm's ability to better serve its clients. Professional CIOs, CFOs, CMOs and others bring an expertise that adds to the abilities of firms and lawyers to serve their clients. Inhibiting the ability of firms to attract such talent is running in the wrong direction.

The straw that pushed me over the edge (metaphor blender engaged) to write this post was visiting a law firm's web site and seeing the words "This is an Advertisement" prominently displayed on their homepage. Of course they felt compelled to include this since some ethics rule requires it.


I know - I know. Someone, somewhere might confuse a website as legal advice. Right.

So ... mandatory bars, here's my top recommendation. Stop it with the stupid rules. They are not protecting clients. They are doing the exact opposite. Restrictions on advertising limit the information avilable to clients about the value and need for legal services. So in addition to asking "could a client be harmed" ask some follow up questions, like: Will these restrictions hurt clients? If clients are not aware of the value of estate planning, will they be harmed? Not only is the answer yes, but last check 50% of adults in the US do not have wills in place. Enough said.

1974 was 40 years ago. Try implementing some rules suited for today or better yet, tomorrow.

Rant Complete (for now).

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CanLII Connects – A Canadian Content Success Story in the Making

It is not often that my role in the world as the Canadian Geek Add-On enables me to write about things happening in the Legal Research world up here, north of the border. But today, I have the honour and privilege to share with all 3 Geeks Readers, who share my interest in technology, law libraries, and access to information about CanLII Connects. I am not the only one who has noticed, and it was recently profiled in the ABA's Legal Rebels cause you know that's how we roll up here. And, Connects, was also featured earlier in the year on Slaw with commentary by Connie Crosby. That post can be read here. 

But six or so months in, I thought I could highlight Connects, which is focused on building a community of contributors to promote the discussion and synthesis of legal issues, tying it all back to the primary law. What's different about CanLII Connects is that it's gathering and re-publishing existing case commentary as well as attracting new, original material. Connects launched in April and now has more than 30,000 documents, hundreds of members (lawyers, law students, professors, judges, and law librarians), dozens of law firm publisher accounts, and scores of contributing authors. 

I think this is important to share for a few reasons, first and foremost, Connects cuts through the clutter, providing commentary with your case law, which makes it easy for anyone to understand Canadian law. Whether, you are from here or otherwise. Secondly, its proof that there is innovation in legal internet content, not just more data being created which is always a refreshing change. Practice of law aside, Connects is also it’s a great place to look at the business of law as well. You can check out who is publishing, what they are saying and assess the impact. The fact that I get to share a Canadian legal tech and content story with a primarily American audience is just icing on the TimBit.  

So, next time you are looking for some Canadian content, check out CanLII Connects! 

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The Next Target

Previously I posted on some knowledge gained at the Bridgeway Conference in Nashville. I wanted to add one more item to the list.

Jeff Paquin, who now works with Bridgeway, gave a presentation called Legal Department 2050. He started by looking back at the evolution of legal departments and then projected forward on what the future might hold for them. In looking back he noted that since the mid 80's, legal departments have grown substantially. Back then about 5% of the legal budget went to pay the in-house team. A recent report shows this number is now approaching 50%. Quite a bit of this growth has occurred recently with legal departments pulling more work away from outside counsel.

Numerous reports and posts have shown that in-house legal departments have become one of the biggest competitors for outside counsel. This is not news to law firms since they are hiring these people directly from those firms. Later at the conference I had one client comment to me on the challenges they are having maintaining relationships with law firms, since they keep hiring their primary relationship lawyers away from the firms.

Jeff then took this concept and projected it forward. He runs a group called the Legal Futurists Society. Based on the collective thinking for this group, they see this growth peaking in the next 10 years.

Jeff posed a question to the audience. He asked what we saw resulting from this trend. A hand shot up quickly followed by, "Scrutiny." Everyone agreed that as legal departments' personnel came to represent greater portions of the budget, cost concerns would shift from law firms to the legal departments.

Here are my follow-on thoughts:

#1 - My reaction beyond 'scrutiny' was that legal departments are just becoming law firms. This means they will now be burdened with all the same problems a firm has in terms of infrastructure. What do they have for document management? What about KM and all of the other tools firms have in place? This will be a significant challenge for them, since law firms are still trying to figure all of this out and they are years ahead of legal departments.

Which leads to my second thought ...

#2 - In-sourcing doesn't appear to be changing the model much. Legal departments don't seem to be 'doing law' much differently. They are just doing it with lower cost resources. So the cost savings realized will only be marginal. And it won't take long for corporate leadership to realize that limitation - and to notice the size of the department has grown considerably.

So I think Jeff and the group are right. A lot more scrutiny will come to bear on legal departments. As they grow in size and cost, the cost saving target will shift from law firms' to their backs.

What's good for the goose ...?

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Listening to Clients

Last week I was able to attend the Bridgeway Customer Connective Conference in Nashville. Unlike many of the conferences I attend, this one is directed at clients, not law firms.

One of the sessions I attended really got my attention. Pratik Patel and Peter Eilhauer of  Elevate presented on a Practical Data-Driven Roadmap for Spend Management. This was primarily a case study on how one client approached cost control for their outside counsel. Pratik gave an excellent presentation on how the client took a methodical approach to understanding its legal spend by analyzing how and where it had been spending its budget. Then they took a step-by-step approach to tackling the problem.

One component of the analysis was understanding the rates the client was paying on a practice-by-practice basis. Normally I find this type of analysis marginally useful, since rates are only one component of cost control. However, the practice breakdown was interesting, since it separated out different specialities. This meant tax lawyers were not being lumped in with labor lawyers.

With this breakdown the client was able to determine market rates by timekeeper level for each type of service. For their needs, it didn't matter whether these were market rates on the broader level or not. Then they identified firms with rates above these client-based market rates.

And here's where it got interesting. Pratik asked the audience how many firms pushed back on the client when they asked the firms about the discrepancy. He prefaced this by saying the client expected that number to be 50%. People gave various guesses, including mine which was "low."

The number was 5%.

Pratik singled me out - since I was the only law firm person in the room and asked me why firms didn't push back. I replied it was firms' superior negotiation tactics in action - which got a good laugh. Then on a more serious note, someone else commented that he viewed it as an admission by the firms that they had been over-charging the client.


The Lessons:
  1. Pratik made a point early on that the client did not want to push too hard on their firms. They want their law firm partners to be financially healthy. In fact the other presentations I saw at the conference echoed that sentiment. Although clients are wary of their firms, they don't want to be mean about it.
  2. And when firms react as if they have been charging high rates, they can be sending a bad message. If they act like they have been treating the relationship poorly, then they shouldn't be surprised when clients view it that way.
  3. Lastly - law firms need to grow a pair. They employ very talented people. Instead of always bending over, they should have some confidence in defending their prices. Failing to do so means they will undersell the value of their services.
The legal market needs to mature around these ideas. This chaotic, wild west situation is resulting in many unintended consequences. As usual, I continue to recommend that lawyers take a more proactive approach to dealing with all of this change. To shy away from this, only leads to confusion and unhealthy relationships.

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The Exponential Law Firm - Part 4

The following is the final part of a 4 part post expanding on my short introduction to an ILTA session entitled, Do Robot Lawyers Dream of Billable Seconds? If you have not yet listened to the full session (and you have nothing better to do for the next 90 minutes), you should go listen to it now. If you would like to download and read the entire 4-part post you can get it here.

What does an Exponential Law Firm that can survive in this type of environment look like?

I would be lying if I said I knew for sure, but I think we can look to a number of trends and begin to get a fuzzy picture of the future.

More Legal Processing will be passed off to computers

We like to pretend that everything we do is custom tailored for every client, but it is simply not true. We are already past the point where we need to improve efficiency in order to provide a better price to our clients. In the near future, we will need to improve efficiency in order to make a profit. That means we will need an honest assessment of the work that can be automated, or performed by algorithm, and the work that will require custom analysis by specialized attorneys. Then we will begin pricing that work accordingly.

The rise of the Legal Processing Engines

This obviously goes hand in hand with the above, but one of the implications of this change is that the output of biological legal processing units (most attorneys) will shift from customized legal work, to engine building and maintenance. The focus of many firm attorneys will no longer be on individual clients, but on entire types of matters at once. Attorneys will no longer slave over a single contract, but over the engine that builds that type of contract.

Engines will manage as much work as they can and spit out any unique or unusual work to be reviewed by senior attorneys. That “unique” work will be analyzed and evaluated to determine whether it can or should be incorporated into the engine for future use. Over time the engines will do more and more complex work.

The rise of the Legal Engineer

Inherent in the rise of the Legal Engine is the role of Legal Engineer. We are already seeing this role pop up at many firms. These are people with legal training and technology “know how”. They are equally comfortable analyzing contracts and programming new applications. There are very few people who fit this role today in big law firms, but firms who want to survive post disruption will hire these people by the truckload. The engineers will be responsible for creating and maintaining the firm’s engines. As laws change, or interpretations change, the engineer will modify the engine appropriately.

Machine Readable Documents

Once we are using engines to process legal matters anyway, it will make sense to just go all the way and make all legal documents machine readable. Gone are the fuzzy shades in meaning between contains and includes, or the differences between shall and must, to be replaced by the definitive  and =.

Proactive Practice of Law

In this world, firms will stop being reactive. The idea of waiting for a client to approach the firm before working on a matter will be unthinkable. Legal engineers will build engines based on legislation and firm sales associates (or Partners) will pitch those engines to potential clients.

Is this Science Fiction?

Simply put: computers process information more consistently, accurately, and faster than people do. They are networkable, scalable, and manageable in large numbers by relatively few administrators. If I am right in my assessment that what we actually sell to clients is Legal Processing, then no, this is not science fiction. In order to compete in an exponentially changing industry, we will have to move the bulk of our processing from biological to digital processing units.

If Diamandis’ exponential framework is correct, then we are approaching a digital disruption that will fundamentally change our industry forever. The players will change. New firms will quickly morph from newcomers into industry leaders. Many of the old guard will fail to change and will subsequently fail entirely. And a few will probably stick around, doing things much as they always have for a very select, demanding, and equally slow to change clientele. At least until those clients also get disrupted.

Whether or not I am right about what we sell, or that the framework directly applies to the legal industry, is almost irrelevant. The 6 Ds Framework provides a useful model for imagining the kinds of changes that could take place in our industry, based on the kinds of technological changes that have already upended other industries.

The only thing of which I am absolutely positive is that both lawyers and IT personnel, as a general rule, do not think much beyond the next immediate hurdle. They approach the world linearly, solving problems as they arise, and planning for a steady progression of linear events. But if we are already on a path of exponential change, then our standard linear approach to managing firms will be our demise. A purely linear response to an exponential threat is the equivalent of no response at all.  

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