Legal Practice and Legal Delivery: An Important Distinction
Lawyers parse words and define terms. So why do they so often use “legal practice” and “legal delivery” interchangeably when the terms have such different meanings and implications? This distinction is especially important in the context of the tectonic shift occurring in the legal vertical. The practice of law is very different than the delivery of law. This is more than a semantic distinction.
The Practice of Law Has not changed all that Much
The practice of law has not changed much since I became a lawyer a few decades ago (Jimmy Carter was President and the Pittsburgh Pirates won the World Series). Trial, corporate, and the other practice areas are pretty much as they were then as are the Rules of Evidence, Professional Responsibility, and other core precepts that govern lawyers and guide their practice. Yes, international practice has become more prevalent and practice areas like IP have taken on heightened prominence, but choice of law, forum non conveniens, and all those other things lawyers struggled to master for the Bar exam have changed little over the years.
Some will say, “but what about technology?” Certainly, technology is now a part of legal life-just as it is in virtually every other facet of our existence. Technology is no longer a vertical; it has become a horizontal. And this certainly applies to its impact upon law. But it is not so much thepractice of law that it affects-what lawyers do and how they do it. Rather, technology has profoundly changed the delivery of legal services- how and by what structure those services are best rendered and by whom. Technology has been a key factor in creating a legal supply chain in a vertical where, until relatively recently, law firms were the sole outsourced legal service providers.
Electronic discovery has exponentially increased the volume of data-and ironic that technology generally drives costs down and promotes efficiency except with law firms. At the same time, privilege, relevance, and other legal precepts governing the production and evidentiary value of that data have scarcely changed. What is different is client unwillingness to pay BigLaw rates for high volume, low value work such as document review.
Legal Work Delivered Outside Law Firms
Lawyers still sift through data and maintain privilege logs, but now they frequently do so while working for lower cost service providers, not law firms. And the top service providers have invested in technology-not to mention project managers- to promote efficiency and to deliverlegal services at rates commensurate with the value that clients ascribe to the task. The traditional law firm structure, designed for profit-per-partner but not conducive to competitive pricing for such repetitive work, has fueled the growth of “alternative providers”. Many of those service providers perform legal functions but operate from a corporate rather than a partnership model. Plus, service providers can-and do-often engage in inter-disciplinary practice with technologists, engineers, accountants, and project managers working side-by-side with lawyers. My take: this is the present mimicking the future.
Top service providers, consultancies, and legal technology companies—all of whom employ lawyers (as well as other service professionals)- have access to institutional funding to acquire technological advantage, top management as well as domain experts. All this fuels growth and brand development.
Summation: legal practice is now being delivered from many new forms and structures. And a common denominator among them is a more client-centric, collaborative, and transparent approach to service delivery. The inescapable conclusion is that the traditional law firm model can no longer sustain profit-per-partner (its goal and lifeline) while, at the same time, build for the future and deliver non-bespoke services at cost-competitive rates.
Legal Education and The Impact of Legal Delivery Changes
This spills into legal education. The good news is that law schools continue to provide students with “the basics” of legal training. Their core curricula have not changed much during the past half-century or so except for a wider array of elective courses-as well as more administrators and extravagant new buildings.
The bad news is that most law schools, like practicing lawyers, do not seem to appreciate the difference between the practice of law and the delivery of legal services. And that distinction is crucially important to legal education because it affects curriculum and the preparedness (vel non) of graduates to enter a new and different legal marketplace. Law schools continue to prepare students for the traditional law firm model-one with high salaries to help defray education costs and partnership opportunities that have all but vanished– that is rapidly being replaced.
Legal Delivery Today Demands New Skills For Lawyers
Law schools are operating as if the delivery of legal services is as it was even a decade ago. By so doing, they fail to teach new skills required for contemporary lawyers. Many of those lawyers will not be working in law firms operating under the traditional partnership model. Why does that matter? Because legal delivery is now a race that rewards expertise, efficiency, low cost, risk mitigation, and value-not billable hours and profit-per-partner. Translation: new skills are required for young lawyers to be market-ready whether they work at law firms, in-house, or for service providers. Those skills include: e-Discovery, contract management, IP, cyber-security, and project management to cite but a few.
The parallels between traditional law firms and law schools are striking. Both tend to overlook that though legal practice is very much the way it has always been, legal delivery is being transformed. And that includes the integration of “legal” problems into business and technology issues. Legal delivery has become a three-legged stool of which legal expertise is but one element. Consider that Illinois recently became the fifteenth State to adopt Rule 1.1, “(Lawyer)Competence” to require attorneys to stay abreast of changes “including the benefits and risks associated with relevant technology.”
“Just being a lawyer” does not cut it anymore. If lawyers do not broaden their skill base, they could go from a starring to a support role in the delivery of their services. Don’t believe this? Consider that many large companies and industry groups are routinely retaining lobbying firms, crisis management boutiques, and accounting firms to handle some of their biggest business challenges. Lawyers might identify those challenges as “legal”, but clients often don’t. In the end, clients, not lawyers, determine when-and for what-lawyers are required.
Consider also the changing role of in-house lawyers who practice in a corporate, not a traditional law firm partnership model. They are morphing from working solely on “legal” matters to supporting business in an array of roles including corporate governance, cyber-security, risk management, and other technology and business driven activities. Simply “being a lawyer” does not fit their new job description and responsibilities.
Conclusion
The delivery of legal services is a play with many actors. Disaggregation of legal tasks is well underway with no signs of slowing down or turning back. The days of law firms having a stranglehold over legal delivery have give way to the rise of in-house lawyers and departments, legal service companies, and technology companies “productizing” tasks that were once delivered as services. Again, it is not legal practice that is changing but the structure from which those services are being delivered.
Don’t think this can or should happen? Look at the transformation of medical service delivery during the past few decades. And consider, too, the rise of para-professionals in the healthcare industry. Note to lawyers: law is important and lawyers play an important societal role, but neither is “special.”
Law schools must be more sensitive to the changes in legal delivery and skills students must have to avail themselves of marketplace opportunities. And non-rainmaker lawyers in large firms might take a hard look at the long-term sustainability of the traditional partnership model. What level of investment and commitment are their firms making to the next generation? In most firms, the answer is “not much.”
Legal practice is not under attack. But the traditional law firm structure is. And the sooner lawyers recognize the difference between practice and delivery of legal services, the better they can prepare themselves to be key players in new delivery structures. The winning lawyers and structures will be those that focus on clients, not maximization of partner profit.
