I have just returned from three weeks of back-to-back conferences, exhausted but ready to jump back into Law 2050.
The conferences were not about the legal industry—they were environmental law and policy gatherings—but I found plenty of time to discuss the legal industry with practitioners and academics. A number of conversations led me to think more deeply about the training of new lawyers in the new legal environment. One was with a friend who had recently left 20 years of practice with a law firm to become the general counsel of a mid-sized energy company. One of the first steps he took in his new position—following the trend among corporate clients—was to inform all his outside law firms (including his old firm) that he would not pay for any first or second year attorneys working on matters for his company, no exceptions. I asked him how he thought new lawyers at law firms handling complex litigation and transactional work will receive adequate training as this trend spreads throughout the industry. His answer boiled down to, “not my problem.” Well, maybe it’s not his problem, but it is a problem.
For the past 60 years the training of new lawyers—and here I mean training in complex corporate litigation and transaction environments—has been financed by law firm clients in a tacit, though sometimes explicit, agreement between the firms and their clients. This arrangement worked best when there was an expectation of long-term engagement between a firm and its clients as well as long-term employment of a lawyer at his or her firm. The idea was that the client would foot the bill to train a new lawyer at the front end and in return would after some years be able to work with an experienced attorney knowledgeable in the client’s business affairs. Both of those expectations began to fall apart in the 1990s, however, as clients diversified their firms and lateral movement by lawyers became the norm.
Although it is now widely discredited by legal “rethink” pundits, the old system worked—it produced very capable senior attorneys. So, what to put in its place? What system will produce just as capable senior attorneys under the condition that clients will not pay for new attorneys working on their matters? As I have observed in other posts, the answer clearly is not to replicate the Axiom and Clearspire model of firms staffed solely by senior attorneys. Their approach, though hailed in the “rethink” media as brilliant, obviously is unsustainable as an industry norm.
Then there are the endless calls for “more skills training” in law schools. Ironically, this proposal increasingly is presented alongside proposals to shorten law school to two years. But whether two years or three years, the reality is that there is no way law schools can replicate the first few years of law firm practice. Besides, contrary to the myth of law schools offering only esoteric “law and” courses, most law schools are already chock full of skills-based and experiential opportunities and courses focused on building core domain knowledge. To be sure, law schools must adapt to the new legal industry environment, but there is no getting around the fact that law school is law school, not law practice. So, don’t look at law schools to produce “fully formed” lawyers. We don’t get that level of training from medical schools or any other professional school, and we won’t get it from law schools.
This leaves the law firms and the new lawyers. To put it bluntly, the pressure is growing for the firms and their new hires to come up with a new training model—more specifically, a training financing model. It may be as simple as lower profits for firms, lower salaries for new hires, or a combination of both–the market will sort out the money matters over time. But is there a fundamentally new way to think about the training of new lawyers? What might that be? To be honest, I’m not sure, but it is a topic I hope to explore on Law 2050. Suggestions are welcome!
Younger people often have an edge in technology. This is clearly demonstrated in start ups and tech companies, where age is not celebrated. Yet there are comparatively few legal innovations currently being started by young lawyers and funded by VC’s. This is due in part to the push back by the industry,, making these innovation less attractive to VC’s than the other proposals that they receive. There is also a lack of companies interested in purchasing such innovations. So one thing that Biglaw and the experienced lawyers could do is finance legal innovation. They have the most to win by doing so. They can wait for the LPO’s to slowly steal their livelihoods as they push up market to higher margin work or they can keep the legal work in the states and support the upcoming generation though financing domestic innovation. To avoid the rule 5.4 restrictions they can do what Clearspire did and set up a business/tech unit and a legal unit.