My Response to the American Bar Association’s Task Force on the Future of Legal Education Draft Report – September 20, 2013

2013-10-21 13:01:49

The JD Legal Education Dilemma- An Innovator’s Solution- Limited Legal Services Providers 

Introduction

The JD legal education model and the practice of law model are a continuum. The labels model and continuum are used advisedly. Legal education is not synonymous with the Juris Doctor (JD) degree. There is a well-known history of its evolution under the auspices of Christopher Columbus Langdell of Harvard University and its eventual incorporation into the preferred “limited legal education” model for accreditation for the practice of law by the American Bar Association (ABA). Nor is the practice of law synonymous with the provision of legal services. It’s a “limited legal service” with a well-known evolution of its own into a self-regulated monopoly practice of law model. The resulting continuum is that the great majority of attorneys authorized to practice law must enroll in an ABA accredited law school and obtain a uniform JD.

There is no question that there is a crisis in this continuum. The JD has lost its sheen as the preferred model of professional legal education. Law firms accuse law schools of being woefully deficient in preparing graduates to be productive entry- level practitioners of law. “New age” professional services providers maintain the e-technology revolution and the evolution of “multi-disciplinary professional services” is rendering the entire JD education model obsolete. The monopoly practice of law model is being accused of being synonymous with the self-interest of the legal profession as opposed to the public interest. It’s rigidly disciplinary and exclusionary rather than multi-disciplinary and inclusionary. Moreover, it has transformed lawyers into producers of billable hours that are increasingly unaffordable to the mainstream public.

The Innovator’s Dilemma

The practice of law is a professional services business. The foundation of this professional service is information knowledge management. In the pre-electronic information era the established legal profession was able to strategically deploy its monopoly in what would otherwise have been a legal services market to control both access to and dissemination of legal information within a “limited legal services” practice of law model. The legal profession has honed the practice of law into a high- level niche information knowledge management business. Clients with the requisite financial resources are provided with access to the best and brightest of practitioners of law. Lawyers have prospered accordingly in delivering it through billable hours into what until recently has been an enviable sellers market. If you have a business or personal problem with a legal dimension you must contact a lawyer who will incorporate it into a solution structured within the practice of law.

The ABA accredited JD legal education monopoly model has enabled law schools to design and deliver a “limited” form of professional services information education that is academically oriented, theoretically intensive and vocationally practice training deficient. It’s an ideal environment for a select cohort of academic – oriented educators with an interest in the jurisprudential model of legal education to work in and engage in narrowly focused research. Until recently, there was no pressure to look at pedagogical alternatives. The only path to the legal profession and practice of law was through ABA accredited law schools.

Legal education has operated in an enviable post secondary sellers market. If you want to become a lawyer you have to attend an ABA accredited law school. There’s no compunction, or indeed opportunity given the rigidity of accreditation standards, for law schools to compete through program/curriculum differentiation. Prestige on the basis of academic prowess and high profile placements with law firms and judicial clerkships determine law school ranking/status. In the absence of either competition or alternatives, law schools have been at liberty to create an institutional framework that primarily caters to their internal professional, academic and research interests and then arbitrarily fix tuition at a rate to accommodate it; an increasingly expensive proposition for students. Graduates strong on theory but deficient in practice management skills could, until recently, be ushered into law firms where clients would pay for them to work in what were essentially earn while they learned practice training junior associate positions paid for by clients.

Business management guru Clayton M. Christensen identified a change phenomenon he’s labeled as The Innovator’s Dilemma”[1] The dilemma is that high performance organizations at the top of their game in the market with competent management are inclined to dedicate their resources to a continuous improvement of conventional service strategy and in the process increase profitably. Outliers, sensing a market opportunity, develop a series of niche or marginal products/services that are not necessarily superior but are cheaper and/or more customer- friendly. They begin to encroach on the edges of the established leaders’ customer/client base and over time develop the resource capability to develop alternatives that are superior. They eventually emerge as market leaders displacing the establishment. Implicit in the dilemma is that technology has greatly increased the capability of outliers to render established leaders’ in information service as outdated or obsolete within a relatively short period of time.

The current “dilemma” that law firms and legal education are encountering is that a monopoly over the practice of law can no longer contain and constrain legal services. In short, the JD and practice of law are no longer in a sellers market. The globalization of legal services is marginalizing the monopoly practice of law model. The “Creative Class”[2] are the new outliers. There are two basic categories. One cohort is comprised of best in class e-technology experts. Their combination of cost efficiency and pricing in legal document production and litigation support has created an entire outsourcing/off-shoring legal services industry that was non- existent a decade ago. They’re on the verge of rendering the entry- level junior associate lawyer position in law firms obsolete. The higher end information management cohort refuses to be aligned with or constrained by one professional discipline. They’re “multi-disciplinary”. Law if necessary but not necessarily the law is their mantra. Mediation/arbitration/Alternative Dispute Resolution (ADR) are emerging as competing and, in some instances, preferred professional service calls. Their success is in being client centered rather than practice of law centric.

The Innovator’s Solution

There will be no “End of Lawyers”[3]. Nor will the practice of law disappear. There is still a valuable role for JD education. However, the solution for what is a very real “Innovator’s Dilemma” in the established legal profession is to recognize that the practice of law and JD legal education model continuum is a “limited legal service”. In fact, a select cohort of successful law firms has made the case for this. Even as general practice law firms face declining revenues boutiques and niche- oriented firms that derive value from jurisprudential applications to the practice of law are alive and well and, in many instances, thriving. These law firms are examples of “Limited Legal Services Providers”. They recognize that under the umbrella of the monopoly there are opportunities to be client centered and practice law.

Some of the best examples of these “Limited Legal Services Providers” are elite top end of the market providers such as the Wall Street Firms. They have developed niche law practices that focus on sophisticated jurisprudential interpretations and applications of law and governmental regulations that cater to the Fortune 500 corporations. Another is the elite Washington D.C. Supreme Court Appellate community of law firms. The “Washington lobby industry” is an example of the what are often labeled as arcane applications of jurisprudence into sophisticated “soft law” policy. At best, these niche practitioners of law represent 10% of the practicing bar.

The judiciary is also a “Limited Legal Services Provider”. Competent courts staffed with knowledgeable judges who render well -reasoned decisions are central to the well functioning of a democratic society. Recent JD law graduates who score at the top of their class in jurisprudence subjects perform a valuable function as judicial clerks undertaking in depth research and working on drafts of court decisions. However, court litigation and judicial decisions aren’t associated with the great majority of work rendered by general practitioners in law firms.


[1] Clayton M. Christensen, The Innovator’s Dilemma, New York, Harper Collins (2000)

[2] Richard Florida, The Rise of the Creative Class. New York, Basic Books (2002)

[3] Richard Susskind, The End of Lawyers, London, Oxford University Press (2008)