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  He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors.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.

Artificial Intelligence: Shaping the Future of Law

I very much enjoy Sci-Fi movies about artificial intelligence, but I am not particularly keen on being replaced by a machine that can spew out better legal arguments in a milli-second based on an algorithm. The majority of our class discussions have focused primarily on technological innovations in the legal field. Artificial intellegence has been hailed as the future of law. It’s all very exciting, until the foreboding feeling sets in and you’re reminded that not only do you have to compete with 4.0 Bobby for a job, but with a machine as well. According to Michael Cross in his article, Role of Artificial Intelligence in Law, “ a computer is as fresh and alert at 2 am as it was at nine o’ clock the previous morning.” Yeah, well, no arguments there. Computers will always be faster, more efficient and accurate at any given time of the day.

The abstracts from the 14th International Conference on Artificial Intelligence & Law sum up the relationship between law and artificial intelligence eloquently. Both fields are involved in the process of creation. AI systems are built, experiments are designed and paradigms are replaced. In law, legislation is drafted, precedents are set and beliefs are balanced. Both fields struggle with the complexity of modeling human behaviour. AI aims to recreate human behaviour, while the law intends to drive human behaviour. The meeting of law with AI was inevitable. But where does that leave the plethora of graduating law students and lawyers?

Throughout this class, we have all been reminded of the concept of the “legal sherpa” and helping the ordinary lay person navigate the convoluted path of the law. A more refined role for AI in law is to provide strategic legal guidance. Programs such as ROSS a digital legal expert, built on IBM Watson helps attorneys with their legal research based on plain word searches. This serves as a valuable tool to help guide lawyers in their everyday research. In the end this will make legal profesisonals more effective because they will be able to complete their tasks more efficiently therefore charging the client less for services.

London firm Hodge Jones & Allen has pioneered a predictive model of personal injury case outcomes to assess the predictability of their current caseload. The program will assist the firm in determining which cases have a greater chance of success, therefore allowing the firm to direct their client towards either settling or proceeding with a claim. This is an example of a legal technological advancement in action and in the future personal injury firms and perhaps others as well, may greatly benefit from using such programs.

This new technology will not hinder or replace legal professionals at all. In fact, I see it helping to make the jobs of lawyers easier and more enjoyable. It will also help them bring a wider array of services to their clients in a quicker and more streamlined manner. These advancements will thrust lawyers into more advocacy-based roles because those types of positions cannot be fulfilled by AI, at least not for now. In conclusion, I do not believe that lawyers will ever fully be replaced by AI but it can serve as a useful tool that can better the practice of law.

Stock for fees?

Since the option of taking an equity investment in a client as a form of payment of fees came up in class today, I wanted to follow up with some information on this practice.

Here are a couple of interesting links.  The first is a Wall Street Journal story from 2012, which notes that the practice has changed: in the “dot com” boom in the 1990s, firms like Wilson Sonsini would take stock instead of fees, but after experiencing some big losses when that tech bubble burst the firms, it seems, have switched to a practice of deferring or reducing fees (deferring fees would be more like a debt investment) coupled with taking the opportunity to invest (with the firm’s own cash) in the same manner as founders or venture capital investors.  The second is a more technical article on some of the legal and regulatory considerations.  Lawyers’ equity investments in clients raise a number of tax, securities, insurance and other issues.  But taking on a bunch of complex issues and turning them into an opportunity is a favourite pastime of clever lawyers.

I’m not aware of any Canadian law firms that have done this, and – while obviously the specifics of tax, securities law and so on are different here – I don’t know whether there are any clear bars to doing this in Canada, for example under professional ethics rules.  It might be an interesting question to look into.

 

The pricing mechanism of legal services, or, how to bill?

Mitch Kowalski said something during his visit to our firm a while back that I feel is worth remembering.
A member of our firm questioned, legitimately so, whether the introduction of ABS would unduly chip away at the ability of smaller firms to retain clientele and keep the lights on. Mr. Kowalski replied that the purpose of law is not to provide a living to lawyers. Such a sentiment is difficult to argue against, despite the fact that we maintain an interest in making sure there is ample opportunity in this field to sustain us with a comfortable living.
It is no secret that there the traditional way of doing things is being disrupted, and that this disruption will not abate any time soon. Indeed we at L21C understand that we must adapt. In order to adapt what better way than to tackle the problem of how we price our services? The method of billing clients for the amount of time put into a file is, simply put, inefficient. Clients want to pay for a result, not time. Is it any wonder why jokes about lawyers are so prominent? Or why people dread having to hire a lawyer?
The billable hour has faced criticism lately as pitting client against lawyer. More can be read about that here and here.
As a response to growing criticisms of the billable hour, numerous proposals have been forwarded. Alternative fee arrangements (AFA’s) have sprung up and what they all have in common is that they are rejections of billing for time spent on a file.
While thinking about this problem, I considered the manner in which construction jobs are priced, which, as the vignettes point out, is generally done on a cost-plus basis. The problem, of course, is that litigation can be wildly unpredictable, and to quote based on anything resembling a flat fee might be extremely unfair for a lawyer.
When it comes to solicitor work, though, especially the kind of legal matter that is extremely cut and dry (at least, as basic as a legal service can be), I think that charging a flat fee would in fact be more in line with attacking the access to justice problem. It would provide clients an ascertainable way to know what a given legal service will cost them.
So in answering Mr. Kowalski’s question, it can be said that no, law is not there for the purpose of giving lawyers a way to make a living. But the law would not be robust, strong, and capable of helping those who need recourse to it if did not provide those working in the field with at least a decent standard of living. Great minds otherwise drawn to the practice of law might sadly not even consider it because of the prospect of low earnings.
One thing is for certain: things are going to change. Perhaps the change is not directly on the horizon. It will, sooner or later, however, arrive. We at L21C have learned about technology-driven legal service alternatives and, this being 2015, these types of information technology products will increase in their quantity and accessibility. If we wish to adapt in a way that welcomes the inevitable wave of change, we have to rethink and perhaps even discard some things seemingly held sacred in our profession, and the concept of the billable hour seems ripe for such rethinking.

What do my fellow L21C firm members think? Does anyone have any innovative idea about how we should bill clients, given the fact that the “billable hour” is reported as being a barrier to people seeking legal help?