L21C Book Club: The Citadel

In my non-work time, I’ve been re-reading a novel that I first read many years ago: The Citadel by A.J. Cronin. The Citadel was published in 1937. It was made into a film in the 1930s, and adapted for television several times, most recently in the 1980s.  The Citadel was once a very famous book, but it seems to have faded out of consciousness these days.  I hadn’t thought about it for ages, then I saw it mentioned somewhere by chance and thought “I’d like to read that again.”

I’m glad I did.  It’s a good read.  But more importantly – and the reason for doing a blog post about this book – it turns out that this is a fascinating to read from my point of view now, as a someone who’s part of a profession undergoing great change and examination of its own purpose, ethics, and place in society.

A.J. Cronin was a doctor.  His novel is about a doctor, his fictional alter ego Dr. Andrew Manson.  At the beginning of the novel, Dr. Manson, an idealistic and principled young medical school graduate, arrives in a remote Welsh mining town for his first job.

Andrew Manson works to heal the struggling, proud coal miners and their families.  He gets challenging diagnostic cases and he is brilliant at solving them.  He encounters public health problems – typhoid from a leaking sewer, lung disease from anthracite dust – and he works hard to understand the root causes and solve them, even to the point of taking radical action.  In a memorable scene, he and a friend clandestinely blow up a leaking sewer to force the authorities to fix it.  He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors.  He doesn’t make much money.  He’s also a bit of a hothead and a prig.  Cronin was too good a writer to make his protagonist an insufferable saint.

Later in the novel, Andrew is seduced by opportunities to make more money and live like his more prosperous doctor friends, who find rich patients and charge them silly money for largely useless treatments.  He becomes, in conventional terms, successful. Cronin portrays this change as a loss of his soul.  And what happens next … you’ll have to read it to find out.

There were many points in the novel that had a new kind of resonance for me, reading it again after years in the legal profession and teaching law.

For example:

  • When Andrew first goes out to practice and work on real cases, the things he learned in the lecture hall at medical school seem like they are from another world.
  • His professional choices are dominated by the tension between personal success and prosperity, on the one hand, and the ideals of his profession and his idealistic desire to serve the public good, on the other. Cronin depicted Andrew’s attraction to material success as a kind of ethical failure, but he didn’t mean it as an indictment of his protagonist as an individual.  He saw the medical system of his time as inevitably (systemically) producing such moral failure.  He said of The Citadel: “I have written … all I feel about the medical profession, its injustices, its hide-bound unscientific stubbornness, its humbug … This is not an attack against individuals, but against a system.”
  • Andrew has virtually no power and no route to dealing with what causes patients to be ill – malnourishment, bad sanitation, dangerous working conditions. All he and other doctors can do is patch things up when people become ill.  They are ambulances at the bottom of the cliff, not a fence at the top of the cliff.

The Citadel was written before there was a National Health Service in the UK.  All doctors were, essentially, small businessmen (they were indeed mostly men).  Every decision about taking a patient necessarily involved a calculation about profit and financial viability, and could not be based solely on the patient’s need or the complexity of the case.

One thing that is fascinating to me about The Citadel, a twentieth-century book, is that these dilemmas are so similar to the ones faced by medical characters in nineteenth-century literature. There are great fictional doctors of previous generations caught in the same conflict between idealism and material success, like George Eliot’s Dr. Lydgate (one of my favourite fictional characters of all time).  I don’t think the central dilemmas for doctors, or their fictional representations, are typically like that now.  But … they still kind of are for lawyers.

The National Health Service was created after the Second World War, in 1948.  The Citadel’s powerful indictment of the ethics of profit-driven medicine is thought to have helped lay the foundation for the creation of the NHS.

This is a fascinating tale for lawyers going through self-examination about their role as professionals, and reflecting on the systemic strengths and weaknesses of our profession.  I recommend it to any L21C partners who have a bit of time for novel-reading after exams are over.  The gender and racial attitudes are … no better than you’d expect from a book published in the 1930s.  But if you can overlook a handful of cringe-making moments of that sort, it’s a book full of humanity and insight, especially for twenty-first century professionals in the process of shaping their professional identities.  It has a lot to say to us.

JD, Ryerson?

Ryerson University in Toronto is developing a proposal to create a new JD program “that focuses on innovation in legal education for the benefit of graduates, their communities, and the broader society.”  That quotation comes from Ryerson’s Letter of Intent, available here.  It makes fascinating reading.  Compared to the traditional law curriculum, it is a profound re-think of what training lawyers is all about, with emphasis on producing “graduates who possess the initiative to respond to unmet legal needs, who exhibit a commitment to social engagement and community leadership, who are able to envision new applications of their education.”  Obviously I like these ideas; in a smaller way, the same ones are reflected in L21C.  (On the other hand, I’ve seen the LOI described as “buzzword bingo” – I don’t really agree but I still think it’s funny.)

We’ve had an interesting debate on our internal course site (Mattermost) about this.  With the permission of those who contributed, I’ve moved it here so that it can be read more widely.

I hope others, in L21C and beyond, will add their thoughts.

Me: this is the letter of intent outlining Ryerson’s proposal to open a law school. I’d be very interested to know what you think of this. I expect that many of you will share the views of skeptics who have pointed out the shortage of articling positions in Ontario (and generally), and questioned whether Toronto needs another law school. Personally, I’m very persuaded by the argument that there is a need in society for a different kind of law school, one that uses innovative approaches to build skills and provide hands-on experience, focused on the needs of the users of legal services. I think it will be challenging to turn that aspiration into real results, but Ryerson has already shown real leadership in legal training, and they might just pull it off. Chris Bentley is one of our guest speakers, so you will have a chance to talk to him about it.

Lorna: The job market being what it is, they’d only be doing their students a disservice to start running a program and graduating people out into the employment void. If it is the case that they will provide the kind of training that’ll comes from articling, and where a good part of the curriculum is aimed toward alternative careers in law, then it could be quite promising.

Me: think they have thought very carefully about the argument that Ontario doesn’t need another law school and that they will be adding more people to a saturated job market. Those are serious concerns. In my opinion the proposal has serious, convincing answers to them. One of the answers – and I find this very compelling – is that there is clearly a huge need for more lawyers, if you look at it not from the point of view of law firm hiring stats but at social need. Ontario’s population has doubled in the last 30 years, but only one new law school has been added in that time. Most people who experience legal problems don’t get help from a lawyer because they can’t afford it. If something is too expensive for those who need it to access it, that suggests an undersupply, not an oversupply. Of course it does nothing to fix this problem if you create another law school like all the others that trains lawyers in a way that fails to bridge the gap. But I think Ryerson has genuinely considered how to do that and has come up with a well designed, well considered plan. A couple of other points mentioned in the report: there are high numbers of Canadian students training in law schools overseas (US, UK, Australia) who come back into the market here, and would train in this country if there were places for them, so to that extent opening a new school doesn’t increase the supply of law graduates. And, last point, as Omar Ha-Redeye says in this Slaw post, Ryerson aims to prepare law graduates who will create the jobs for graduates of other law schools.

Anita: I think it is a great idea but only if the program satisfies the articling requirement and if the tuition is not too high. I feel that one of the greatest barriers to new graduates who may want to practice differently from the traditional models is that there are very few articling positions with firms who don’t run with the traditional model and so if we do find an articling position, it will most likely be one with a traditional model. Articling with a firm steeped in the traditional mode of practice arguably instills that model in the articling student. Furthermore, a heavy debt load after graduation would prevent a recent graduate from taking riskier paths for fear of unpredictable financial returns. At least that is how I feel when looking for ways to practice law differently in my own career.

 

See also:

Omar Ha-Redeye’s post in Slaw

Discussion on Lawstudents.ca

Blog post on Legal Feeds, including comments from Chris Bentley

Article in the Ryersonian, which I just had to include because, um … that’s not Osgoode Hall Law School!

Great Legal Careers!

Friend of the Firm Adam LaFrance drew my attention to this great blog post by Colin Lachance entitled “Make Legal Careers Great Again.”  I really urge you to read it, especially as we come to the end of this semester and the sometimes scary, often exhilarating journey we have been on together.

I hold a strong belief – one of the convictions that drove me to create this course – that people go into law because they want more than just a stable way to earn a decent salary.  You want to use your brains, creativity and eloquence to do intellectually interesting things that have a practical application.  You want to figure out solutions for the problems that confront individuals and social institutions.  You want to serve the public good (and also get paid for it).  You want to be participants in the important events of your times and leaders of society.

These things are what a life in law has always promised.  And it still does.  The catch is, you have to find your way there.  When you step off that stage after you get your law degree, you’re not going to step onto a conveyor belt that takes you straight to your goals.  You have to figure it out.  To pick up a metaphor I started out with, it’s another journey with not much by way of maps.  Maybe you think you’ve been challenged enough and had to jump over enough hurdles in order to get onto that stage and get your hands on that degree.  But, sorry, nope, you haven’t – there are many more challenges and hurdles to come.  And certainly the nature of the challenges that new lawyers face is changing profoundly, and sometimes in quite troubling ways.  But for all that, becoming a lawyer is still a gateway to an exciting, fulfilling life.  Take Colin’s advice to heart; it is excellent.  And allow yourselves a moment of self-congratulation for picking a great career.

More on innovation in law

Here are some interesting bits and pieces for L21C partners.

This blog post by Mark Cohen makes a distinction between legal practice and legal delivery.  Cohen says the practice of law (what lawyers actually do) hasn’t changed that much, but the way legal services are delivered is changing profoundly:

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.

I’ve never really thought about this distinction before, but it makes a lot of sense to me.

The observation has implications for legal education, too.  Cohen argues that law schools are good at preparing law students for the practice of law in the sense that they provide the basic skills a lawyer needs to do legal work.  But:

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.

Cohen says that law schools “must be more sensitive to the changes in legal delivery and skills students must have to avail themselves of marketplace opportunities.”  I’m convinced!  It is a real challenge for law schools, because we’re (reasonably) good at doing what we’ve always done, and finding a way to rise to these new challenges is a lot harder, but I think essential.

One more thing: check out the twitter hashtag #cbaleadership15.  Lots of great stuff here!  For example: “This is the best time to practice the law, but only if you’re open to these new innovative opportunities.”  Congratulations – you are entering the profession at the best time to practice the law!  Even if it is a bit scary.

A Thought Experiment

A lot of law students today are apprehensive and troubled about the prospect of change in the legal sector and what it means for your career plans. These are very understandable reactions to a confusing and uncertain situation.

Before you went to law school, you probably didn’t have a very clear sense of what a legal career looked like, unless you have friends or family members who are lawyers. Once you’re in law school for a few months, the paradigm of what a “good” law career is supposed to look like becomes pretty clear in your mind: summer at a good firm, article at the same good firm, get hired back, work hard, make partner.

Now, things are changing, and the rug is being pulled out. You’re being told that the firms where you should go to follow that well-worn path have flattening revenues, hiring is down, maybe some of them will even go under like Heenan Blaikie, maybe some of them will change their business model altogether. What are you supposed to do? How are you supposed to make a living? Try to get a foot in the door at one of these new weird businesses like Axiom? Create your own startup, and risk failing?

Why, why, why do you have to deal with all this change, when five or ten or fifteen years ago all you would have needed to do was to get on that nice, predictable path and stop worrying?

It is very understandable, and completely rational, to have this reaction to change in a system when you have invested a lot of time, money and effort on the expectation that the system will continue to be roughly as it has been for the last couple of decades.

But I’d like to ask you to indulge me for a couple of minutes and try a thought experiment.

Imagine that we live in a world that I am going to call “Scenario A.” In Scenario A, lawyers have a diverse range of career options. These options are enabled in part by technology that enables people to work together without physically being together. Also, lawyers don’t do routine, automatable, high-volume tasks, because technology has made it completely unnecessary and uneconomical for highly educated humans to do that.

Lawyers have the option to work for companies that allow them flexibility, permit them to do a large portion of work at home, and let them take time out and mini-sabbaticals – like Axiom or Cognition. They can work for publicly traded law firms where they participate in the growth of the firm from their first day on the job through stock-based compensation, and where professional managers handle the management functions while lawyers concentrate on doing the legal services (just as, at Air Canada, pilots do the plane flying and leave it to the trained management experts to do the management of the company). They can work for multi-disciplinary one-stop shops where lawyers, accountants, IT professionals, engineers, counselors, financial advisors and any number of other experts cooperate and share the profits. They can work as employees of tech companies capitalizing on opportunities in the legal sphere, like LegalZoom and Knomos, which are growing fast and need employees with legal training and expertise.  And those daring entrepreneurial types who want to start their own businesses providing legal services can seek investment from venture capital / private equity firms to get their companies started.

Now imagine that this world, Scenario A, is the status quo.  But all of a sudden the status quo faces change.  After all, we do live in an ever-changing world. We are shifting (let’s imagine) from Scenario A to a situation that I will call “Scenario B.”

Scenario B comes into being in large part because of regulatory changes.  New rules come in about who can provide legal services.  Under these new rules, no business providing legal services can be owned by anyone other than a licensed and regulated lawyer.  Businesses that provide legal services cannot have any equity investors who are not licensed lawyers.  Fees for legal services can’t be shared with anyone except licensed lawyers. No one can control a legal services firm except licensed lawyers. That means no professional managers (unless they are licensed lawyers), and no outside experts on the board of directors (unless they are licensed lawyers). Only law firms structured as partnerships in which all the partners are lawyers are allowed to provide legal services.

Things change fast.

The only entities allowed to supply the enormous demand for legal services now are these new lawyer-owned “law firms.”  The law firms quickly realize that a great way to maximize profits for the partners is to charge for the firm’s services by the hour, and hire a large number of salaried “associates” whose services they can bill out at an expensive rate while paying them a fixed annual amount (maybe with a small variable bonus at the end of the year so they won’t quit in the middle of the year).  It is also good for the partners’ bottom line if they make sure each associate “bills” the highest possible number of hours.

Law firms are keen to hire lots of law school graduates so that they can maximize the billable hours they can charge out to clients. They splurge to attract law students, taking them out for expensive meals and giving them goodies like coffee mugs and pens. This is kind of fun for law students.

Law firms start moving routine, high-volume tasks away from technology that can do the work very quickly and efficiently to teams of associates who do it more slowly, but much more profitably – from the law firms’ standpoint, because those hours are all billable hours. Even better (better for law firm profit, that is), there’s no need to invest time and money in training or mentoring the associates or develop their professional skills before the firm can get profit out of them. Associates can do this routine stuff without any training. They are highly motivated to do it diligently and for many hours a day, because that means more billable hours and a better chance of keeping their jobs.

Law firm partners aren’t bad people.  They’re just rational self-interest-maximizers like the rest of us. They understand that the system makes more money for them if they make certain choices.  They don’t even really like the net outcome of the choices that much.  But if they didn’t maximize their profits a competitor firm would, and they’d fall behind and risk going out of business.

The associates are highly motivated to work hard and work many hours.  But the motivation is almost entirely extrinsic (fear and greed), and associates take little real pride in their work. The overriding pressure is to work a lot of hours, translating into a lot of dollars for the partners.  The extremely long work hours wreck their personal lives. Also, they sense that their interest in generating high billable hours is misaligned with their clients’ interest in getting efficient service.  And they feel that their intelligence and education are wasted on the dumb but demanding tasks they are doing. So, the associates are not happy.

Obviously the clients aren’t tremendously thrilled either.  Imagine getting a bill for hundreds of hours of associate time for due diligence or document review that in the old days, in Scenario A, a computer or legal process outsourcer could have done better, faster and cheaper.  And then try explaining it to your boss, who expects you to stick within your budget.

To counteract the unhappiness of associates and ensure a steady supply of new ones (needed to replace the large number who quit each year immediately after the annual bonus is paid), law firms raise the salaries that they pay to incoming associates.

Then law schools raise their tuition, because starting salaries have gone up, so, hey, it seems fair enough to charge more for an entry ticket to a high starting salary.

That happens several times.

As a consequence, law firms keep raising the billable rates for the associates’  time, so that the salary increases don’t hit the partners’ bottom line.  They also have to cover the cost of the billed hours that the clients refuse to pay because the billable rate is stupid. When clients call partners they know and trust to point out that the billable rate is stupid, the partners can’t really disagree.  So they write off bills.  And that has to be made up somehow.

So, the cost of legal services at the high end keeps going up. And, inevitably, that also drives up the cost at the low end too. Many ordinary people who need help from lawyers can’t afford it. Law graduates who want to help ordinary people with their legal problems – who went to law school because that’s what they dreamed of doing – can’t afford to do that, because they have to pay back those big tuition bills, driven, if you trace it back, by the high rates at the expensive law firms.

Change is hard. If you lived in Scenario A and had to change to Scenario B, I think we can agree that would be really, really hard.  Almost unbearable.

More than that: it would also be just plain bad – for you, for society, for everything that the legal profession is supposed to be about.

Actually, as you probably noticed, we currently live in Scenario B.

But things are changing. It looks like we could be on the road to something more like Scenario A.

Change of any kind is hard and frightening. But I’d rather see change from B to A than the other way around. What about you?

Lawly’s survey: lawyers on lawyers

Lawrence Alexander invites partners in the firm to share their insider views on the practice of law by taking this three-minute anonymous survey.

Also, if you feel like sharing the survey with your network of lawyers, law students and law types, it would be much appreciated.

It will all contribute to a better understanding of lawyer-client relationships, improving the practice of law, and (I’m sure) good karma.

The Globe and Mail on Why Professional Service Firms Struggle to Innovate

Today’s Globe and Mail has a piece on why law and accounting firms struggle to innovate.  In a nutshell the reasons are: 1. Billable hours.  If someone is investing time and effort in innovation they’re not billing, and that’s seen as not valuable.  2. Too much focus on today rather than tomorrow.  3. Smugness.  They’re doing well now, so why change?

See more, and the author’s ideas about how professional service firms that want to innovate and grow can do so, here.

Will a Robot Take Your Job?

The BBC is running a news series called “Intelligent Machines” looking at artificial intelligence and robotics, including such wonders as corporate earnings reports and short news stories written by machines.  It reports that, according to Boston Consulting Group, by 2025 up to a quarter of jobs will be replaced by either smart software or robots.

What about us?  The BBC also provides a handy little tool for checking if you will be replaced by a robot.  Type the name of the job into the box and it will give you a percentage (of likelihood that you will be fired to make way for a robot).  Lawyers do quite well in this exercise.  You have to search using British terms for legal roles (because it’s the BBC).  Solicitors get “it’s quite unlikely (3%).”  Barristers and judges (in one category) get the same result, “it’s quite unlikely (3%).”  A few other random ones I looked at: dental nurse, “it’s too close to call (60%)”; cook, “it’s fairly likely (73%); architect, “it’s quite unlikely (2%).”

It is sort of fun to play with this.  But it poses the question in a very blunt and binary way.  I think a more critical question that we all need to ask ourselves is “will a robot take part of my job?  Which part?”

Recall that machines are already writing corporate earnings reports.  A chunk of work for corporate lawyers is writing securities disclosure for publicly traded companies.  We kind of like to think this takes a sophisticated blend of knowing what the regulations require the company to disclose, understanding the client’s business, and being sensitive to shareholder relations concerns.  But in all honesty there is a lot about this exercise that is quite mechanical.  The objective data – the company’s results – determines within quite narrow parameters what the permissible writing choices are.  If a machine can write corporate earnings reports, it can’t be long before they’re writing prospectuses and annual reports.  There would probably also be a need for final checking and tweaking by humans.  That’s where the deep knowledge of the rules, the company’s business, and the perceptions of shareholders would be all-important.  For all I know this is already happening.

So let’s say that this is an example of something that’s now part of the job for some lawyers, and that robots are likely to take most of it.  What does it mean for our profession if this kind of work is taken over by the intelligent machines?

Here’s an interesting excerpt from the BBC story:

Narrative Science chief scientist Kristian Hammond has previously said that in 15 years’ time, 90% of news will be written by machines but, he told the BBC, that didn’t mean that 90% of journalist jobs would go.  “It means that the journalists can extend their reach. The world of news will expand,” he said. “The journalists will not be generating stories from data. That unambiguous, not-open-to-interpretation stuff will be done by machines.”

I am convinced that this carries over to law.  Some percentage, quite possibly an alarmingly large percentage, of what lawyers do now will be done by machines.  That doesn’t mean the same percentage of lawyers’ jobs will go.  It means the world of law will expand.  We won’t be wasting time doing utterly brainless stuff like footnotes, or somewhat brainless stuff like drafting disclosure from scratch.  We will be using our complicated, empathetic human brains for challenges that really need them.