A Plea for Liberalism in the Legal Profession
I often appreciate the writings of Keith Lee at Associate’s Mind. I find his columns thought-provoking and interesting, and as a relatively young lawyer, I appreciate his additions to the colloquy about our profession.
However, one of his most recent writings struck such a chord with me that I thought it needed a response.
A Dangerous Conservatism
Summed up, Lee is arguing against the “new shiny toys” that legal tech companies are marketing — new apps, new services, new companies that claim to be “disrupting” the legal market. He is not arguing against the use of technology, per se, but against the thinking that technology for its own sake is a good thing. As he says in a previous column, explaining why lawyers are slow to adopt legal tech products: “It’s not that lawyers are anti-technology, it’s that they are anti-bullshit.”
Fair enough. In any field, most “innovations” or “disruptions” are anything but. Most startups fail to get off the ground.
But Lee goes farther. Lee’s columns in general reflect an inherent conservatism about the legal profession. He has more than once invoked the “Fallacy of Chesterton’s Fence,” which he sums up as follows: “Don’t ever take a fence down until you know the reason why it was put up.” He believes this conservatism is important to the profession: “Lawyers do adapt and change, it’s just that they do so at a pace that makes sure they can fulfill their duties to their clients first, their pocketbooks second.”
I tend to disagree with him on these points. I think the profession needs to change faster rather than slower, and I believe it’s a safe assumption that most practices that appear pointless actually are pointless.
I also believe that his conservatism is dangerous. He criticizes legal tech as trying to build a “better mousetrap” and admonishes lawyers to spend time instead become a “better lawyer” by “keeping up with case law, tracking new regulations, [and] staying abreast of industry trends.” I think this creates a dichotomy where none exists. In the medical field, for example, the transition to electronic medical records has problem saved countless lives, by creating consistency and improving knowledge management in the health care setting. There’s nothing “revolutionary” or “disruptive” about electronic medical records, but I think a physician who rejects them is being a bad physician, regardless of how well he keeps up with new drug products.
High-Minded Bullshit
But none of this is what really bothered me about Lee’s column. What really bothered me is this (apologies for the big block quote, but I wanted to present his position in full):
Often times I feel as though the large, glaring gap that many people who want to come in and tell lawyers how to do their jobs are not grasping is the fundamental nature of a profession. Many people like to call themselves “professionals” today. I’m a computer science professional. I’m a legal marketing professional.
Just because you want to use a word, doesn’t mean you get to decide what it means. Words have meaning.
A profession is a paid occupation, especially one that involves prolonged training and a formal qualification. Furthermore, the purpose of a profession is to supply disinterested objective counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain.
That is, a professional’s goal is not one purely of profit, but to assist their client’s in an optimal fashion, regardless of the financial outcome for the professional.
If you’re not a professional, you don’t go to a special, separate school that dictates whether or not you can claim to be a marketer. You don’t pass qualifying tests to become a computer programmer. You don’t swear oaths to become a middle manager. You can’t be stripped of the ability to ever do your job again by overseeing committee if you miss a delivery deadline.
Being a professional means you have a primary lodestar other than profit.
This is nothing more than high-minded bullshit. Noble and admirable, yes. But bullshit, through and through.
One of the biggest problems I have had with the legal profession is its self-delusion about its own importance. It’s an entire profession built on the elitist view that its practitioners are better than everybody else, which is particular galling when one considers how lawyers are viewed by everybody else.
Lee’s invocation of “prolonged training” rings hollow in an age when law school is constantly criticized for its failure to provide an education relevant to the practice of law. In reality, to earn the right to call oneself a “lawyer” requires minimal, if any, real training.
His invocation of “qualifying tests” and “formal qualification” make me cringe. The legal profession is a cartel, a guild. And the barriers to entry exist for the same reasons as they exist in any other guild — to keep people out. In part, this is to keep fees high for everyone by restricting supply. And, historically, to keep Jews and other undesirable people out of the club.*
And, finally, this idea that lawyers follow the guiding star of client service and not profit is just more high-minded bullshit. The plaintiffs’ attorneys who sign up clients through a web form and have never even met them. The attorneys who reject settlement offers because their 40% cut is not enough to cover their costs. The biglaw partners who pad bills by throwing 1000 hours of associate work at a problem when 100 hours will do. These people are in it for profit. As the joke goes, “It’s 99% of lawyers that give the rest a bad name.” Certainly, there are lawyers out there who put client service above all else. But I haven’t met many of them.
Refusing to Accept Help
All of this leads to where I think Lee goes most astray: “The legal industry is a unique beast, that functions in a separate fashion than typical businesses.”
This, I think, is the most insidious part of conservatism in the legal profession — the belief that nobody other than lawyers understands legal practice, that lawyers are better or more ethical or somehow different from the great unwashed masses of non-lawyers. With this mindset comes a refusal to accept help from non-lawyers.
But I have news for you: Legal practice is not a unique beast — no more than any other industry. Lawyers are not special. Lawyers are definitely not more ethical than everybody else. Legal practice is a business, and one that is generally poorly run, to the detriment of both client service and lawyers’ pocketbooks.
One analogy I like to make is to the Apple Store. In 2001, there was a lot of media commentary criticizing Apple for opening retail stores. Apple was a technology company — what did it know about retail? Retail is a unique beast, a dog-eat-dog world. “Jobs thinks he can do a better job than experienced retailers,” wrote one critic.
But Apple defied the critics, and today, shopping in an Apple Store is a delight. It never takes more than a few seconds to find somebody to help me, even when the store is busy. They keep track of where I am in the store, and where I am in line to be helped. And when I buy something, the person helping me takes out his phone, swipes my card, and gives me a bag. Compare this to shopping at a department store or a big-box store, where you have to wander around for a long time to find somebody to help you, and then you have to find a place to check out and then wait in a line.
Apple Stores didn’t do anything “disruptive” or special. All they did was leverage technology to do things better, smarter, and faster. Clients are better served, and Apple makes money. Everybody wins.
Yes, most of the legal tech “innovations” out there are useless and will never get off the ground. But this is the nature of startups: 99% of them fail, so it’s prudent to look on them with skepticism. But criticizing the very idea of legal tech by using the elitist excuse that “lawyers are special” — that conservative mindset will be the death of the legal profession.
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*One instructive passage I have seen quoted in more than one place is this: “The fight for higher standards was aimed in principle against incompetence, crass commercialism, and unethical behavior; but it was clear in the language of the leaders of the bar that ‘the poorly-educated, the ill-prepared, and the morally weak candidates’ meant chiefly those growing numbers of the metropolitan bars who were foreign-born, of foreign parentage, and, most pointedly, Jews.”
