The biggest test of all

January 4, 2011

I am not one for polemic exaggeration or self-serving controversy, so please believe me when I say I would like to write about what I consider to be the biggest test of all for lawyers.

It is not an exaggeration, but a genuine and passionate concern. And the test I want to describe is not just the biggest test this year, or even this decade, but the biggest test in the last one hundred years, perhaps the biggest test since the time when being a lawyer was first recognised as the second oldest profession on planet earth.

The question in my mind is this: “What is a lawyer?” …and the test is: “What is the point of being a lawyer?”

Okay, let’s move on from the obvious…we all know that a lawyer is someone who has studied law, taken professional exams and is authorised by a body (Law Society) confirming that a minimum standard of attainment has been achieved; I get that, but the question remains – what actually is a lawyer? What does a lawyer do that someone who is not a lawyer cannot do?

A few years ago it was easier to answer; lawyers had a regulatory monopoly to do certain types of work (in the UK for example – probate, conveyancing and High Court litigation). Lawyers also had to work in law firms or be employed in in-house roles.

Over time however these limits have been relaxed. Property work can be undertaken by licensed conveyancers and much more importantly the Legal Services Act will shortly permit entities other than traditional law firms to undertake legal work. We already have Legal Process Outsourcers in India, South Africa and elsewhere; and we have commoditised legal “factories” processing thousands of routine personal injury cases with minimal human supervision.

Furthermore even today, as long as I do not hold myself out to be a lawyer, I could set up a business to advise clients on employment matters, on contract management and dispute resolution.

Where will we be if all these developments continue at a similar rate in say five years from now?

There are other significant trends to note as well. In my early career as a lawyer I was an in-house solicitor and I was fortunate to become a General Counsel in two major financial services companies. I was definitely and proudly a lawyer, but even then – over ten years ago – I was conscious of something that increasingly played on my mind. What was I doing that had to be done by a lawyer? I did not do property work or litigation (I was a regulatory lawyer); I did not give legal advice although I’managed a team of lawyers, I contributed to debates with executive colleagues, I’managed some big projects and I helped my businesses to be aware of and manage legal risk.

…And precisely none of this required me to be qualified.

Then there is the very real point about really good real lawyers, which is that all the time they are advising their clients they happily blur the line between what is legal advice and what is commercial acumen. So where does the legal advice end and the commercial savvy begin?

In the decade since I stopped being a proper lawyer the in-house legal sector has grown in influence and standing, but nearly all in-house lawyers do not need a practice certificate and could operate in their businesses competently, professionally and appreciated, but essentially unregulated.

Now with the further relaxation of the professional monopoly and the advent of new “Alternative Business Structures” the legal profession faces a very VERY significant identity crisis. What does being a lawyer bring to the party that justifies the qualification?

Add into the mix the rise of the legal publishers making access to legal know-how more affordable and more understandable than ever before. Then reflect on the inexorable development of mobile technology, of sophisticated algorithms and smart “apps” that potentially dispense with the need to consult a lawyer in the guise of a human being!

What we might be left with is something deeply shocking, or deeply liberating depending on your point of view. Just what is the point of lawyers for the vast majority of contract, commercial, social welfare, dispute resolution and property activity?

I do not believe the answer will not be revealed in a “Big Bang” moment; the legal profession will not implode, because what I describe are not events, but trends – a sort of long-shore drift slowly reshaping and redistributing power and influence.

What is clear however is that being a lawyer is not a guarantee of working with any degree of exclusivity. Being a lawyer will not mean competing for work just with other lawyers; and being a lawyer, of itself, may not be a competitive advantage or a guarantee of quality.

Lawyers must fundamentally shift their perspective so that investment in technology, know-how and their people is deep, sustained and real – not just by the standards of other law firms, but by the standards of exemplar employers in all sectors and industries. Lawyers must also come to see the supermarkets, banks, publishers (and others) not as potential clients, but as potential competitors.

The incredible conclusion when this comes to pass is that within a relatively short period of time, and certainly before the end of the current decade, if lawyers do not adapt to the new reality, there will be little point in being a lawyer or working in a traditional law firm.

Now you will see why I consider this time to be the biggest test of all.

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