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  He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors.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

Transitions

Let me give you an image of me as a starting-out lawyer.  I’m on the phone with a client – a terrifying proposition in itself.  Client is talking about something incomprehensible (some Wall Street acronym or something) and assuming I not only know what it is but have an informed and expert opinion about the thing as it relates to the client.  I am googling this thing while on the phone, hoping the client can’t hear me typing.

Transitioning to law school to practice was like that.

One of the reasons L21C exists is that I wanted to try to fill what I think is a gap in legal education in preparing students for this transition, from law student to professional.  Law school does not provide students with much understanding of or information about the practicalities of practice, or about what the ecosystem of the legal services world is like.  It’s a big chasm indeed from pondering the significance of peppercorns to billing, spreadsheets, attempting to tame clients, navigating the internal politics and ego-bruises of working in multiple teams, and googling financial jargon as quietly as possible.

I often hear that it’s not an appropriate goal for law school to prepare students to be “practice-ready,” that there is no substitute for real-world experience and hands-on training.   As far as it goes, I think this is true, even just obvious.  It doesn’t follow, though, that law school can’t do more to prepare students for the transition to practice.  We can, and we should.

That’s the aspiration of L21C: to make students, if not “practice-ready,” at least a bit more ready for the challenges, surprises and mysteries of the coming transition to practice.  To demystify the mysteries, make at least some of the surprises less surprising, and, I hope, stir up some excitement about the challenges.

L21C is also transitioning this year.  Last year it was a completely brand-new course, still a prototype really, and I really was not sure what to expect.  This year is … well, honestly not that different, but it’s no longer completely brand new and I have a little bit more idea what to expect.  Last year’s class was a fantastic group who did some truly inspirational work.  Therefore, my expectations are very high.  I’m looking forward to equally great things from this year’s group, possibly even greater.  Go on, challenge yourselves!

The design of the course is substantially the same as it was last year, but there are some modifications.  The first few weeks are more structured, with fewer guest speakers and more lectures and activities that I planned.  In the later weeks we have many really amazing guest speakers, a panel, a field trip to Kamloops Innovation Centre, and plenty of time built in for teams to work on their LawHacks projects.  The idea is that in the first part of the semester students will get a solid understanding, from the lectures, readings and class activities, of the themes we are covering, and in the later part of the semester the group will be very well equipped to engage with the wonderful leaders and thinkers who are joining us as guests.

Of course I can’t end a post about transitions without mentioning the central focus of this course, the Big Transition: what’s happening to the profession itself.

Richard and Daniel Susskind, the authors of one of our course books (The Future of the Professions), say that the legal world “will change more radically over the next two decades than over the last two centuries” and the legal profession is “on the brink of unprecedented upheaval” (pp. 66-67, internal citations omitted).

Jordan Furlong, writing in the Canadian Bar Association Legal Futures Initiative publication Do Law Differently: Futures for Young Lawyers – another of our course texts – says “[a]lmost everything about career choices and employment options for new lawyers is in flux,” and that the generation of lawyers entering practice now “has both an obligation and an opportunity that its predecessors never experienced.”

David Scott, the co-chair of Borden Ladner Gervais, has said that the lack of access to justice for ordinary people is the legal profession’s equivalent of global warming.

These are the big, systemic transitions that we are going to learn, think and share ideas about in the course.  I hope that the discussion will carry on outside class – and will engage the wider community.  That’s what the blog is for, and I’m really excited to read posts and comments by our new class of L21C partners, as well as everyone else who wants to join the conversation.

This time of year people often say that September, not January is the real new year.  It’s a time of transitions.  Here we go!

tradition

 

In Chapter 6 of Richard Susskind’s book “Tomorrow’s Lawyers”, he discusses the status quo of how law firms have operated historically, and just how risky these traditions may be in the current global economic and social markets.

In working for a medium sized full service law firm this past summer, I absolutely agree with the concerns surrounding the sustainability of the traditional model of law firm operations. Considering costs associated with the practice in addition to the “extras” which the large firms consider to be a part of the basic “necessities”, it is clear that the amount of money being generated and spent goes beyond what can reasonably be sustained in the current economy. These include corporate lunches, dinners and parties. Although my firm is a medium sized firm, the partnership was always keen on ensuring that the lawyers felt appreciated by hosting lunches, dinners, marketing and networking events in addition to an annual retreat.

It would be a lie to say that I was not happy to receive such generosity and appreciation by my superiors and colleagues, however, I have to be honest in admitting that these “extras” are not as “necessary”7427c23ab949b2e020dae43a6a58a053 as we’d like to think they are.

When I think about where the money comes from to provide such gifts to the lawyers at the firm, I always end up with one source; the clients. It seems problematic to use funds allocated and paid for legal services towards personal expenses in house. However, this has always been “the way”.

Susskind notes that “lawyers have for many years performed routine work for which they have been overqualified and for which, in turn, they have been overcharging”.

Does the above statement explain why the traditional model has become entrenched in firm culture? I would argue that the compensation received from clients for legal services must cover the special knowledge, understanding and reassurance that a lawyer provides their client. Namely, clients pay to have a lawyer deal with their matter in order for them to feel as relaxed as possible with their predicament. The specialized and privileged access to information granted to lawyers is also a chargeable service in my view. Considering the average law school education amounts to sixty or so thousand dollars excluding undergraduate or postgraduate studies, it seems understandable why young lawyers are eager to join a firm where they will have the potential to grow into a gainful practice that follows the traditional model.

Susskind is correct however in stating that “to survive and thrive I suspect most will need to [make] changes to enable the changes from their current approach to a new, sustainable, longer-term business model.”

Personally, I think the primary issue is that clients are able to access plenty of information online through a variety of platforms, including digital lawyer substitutes. These substitutes offer users an online, self-serve options in drafting routine documents such as leases, powers of attorney, etc. Other sites offer legal advice, etc.

If law firms perceived these substitute services as legitimate threats to their business then change would likely arise. However, law firms, specifically the large global firms, do not recognize the threat and therefor are not motivated to change. Maybe this is the root of the problem?

History tells us however, that giants can be defeated by the “little guy”.

A Road Trip Without a Map

As I write this, Labour Day weekend is winding down. The last long weekend of summer goes well with thinking about road trips. And I’m about to set off on one, metaphorically speaking – perhaps the riskiest and most rewarding kind, a road trip with no map. I don’t know where we’re going to end up or how we’re going to get there.

This metaphorical road trip is TRU Faculty of Law’s brand new course, Lawyering in the 21st Century. I am attempting to choreograph a course that is not exactly like anything that has been done in a Canadian law school before, although it is inspired by some innovative courses created by others – for example, Mitch Kowalski’s Law 2025. One distinctive aspect of this course is that I am encouraging students to think hard about the connection between the challenges that the established business model for law firms is facing and the access to justice crisis. How can it be that there are too many lawyers and not enough lawyers, both at once? Another unique design feature (at least, I think it is) is that the class is set up as a fictional law firm, in which all the students are partners. L21C is something we will create together.

So, fortunately for me, I am not alone on this unpredictable trip. I have collaborators and partners: the students, of course, and also the wonderful, brilliant people who have generously (and very enthusiastically!) agreed to share some of their valuable time and brainpower as guest speakers. This trip will probably be a bit chaotic, and it’s bound to have some unexpected twists and turns, but one thing I’m sure will happen is that we will learn a lot from one another.

It’s been quite challenging thinking up what to write about for this inaugural blog post. It is not really adequate, or interesting, to say I don’t know what’s going to happen next, even if it is honest!

I have found my thoughts keep returning to my experience as a new lawyer, many years ago, which started me thinking about the same questions I am still grappling with today in this course. So I decided to write about that, and here it is.

In 2004, I started as an associate at a big international law firm based in New York. I should say right from the start that in that job I had the privilege of working with some of the most brilliant and creative people I’ve ever known, and I learned a tremendous amount from them and from the experience, which is like nothing else on earth. But there were some things about it that were really bad, especially at the beginning.

When I started at the firm, many associates in their first couple of years of practice were being assigned to mind-bogglingly enormous projects of responding to SEC enforcement requests (the SEC is the US Securities and Exchange Commission, the agency that regulates and polices the capital markets). This involved reviewing e-mails – clients’ internal emails that the SEC had demanded to look at, for potential evidence of self-dealing or messing with the rules – before handing them over. We needed to check whether they were protected by solicitor-client privilege. We needed to check whether there was anything significant or problematic in them that we needed to know more about as the client’s lawyers, or that might affect the client’s strategy in dealing with the Commission. The e-mails were in the millions. A lawyer had to look at Every. Single. One.

What this translated to in real life was rooms full of sad junior associates in conference rooms staring at computer terminals while they (and by they I mean we) clicked on e-mails and organized them in different folders. Meanwhile, slightly more senior and equally sad associates managed the many moving parts of these massive, unwieldy operations.

What made us all unhappy about this was not just the long hours and pressure to work fast, but how mindless it was. A moderately intelligent high-school student could easily have done it. It is dispiriting, after many years of sophisticated higher education, to do nothing but work that doesn’t require that education. It’s also an extraordinary waste of talent and potential.

The mindlessness of the work was connected to another problem. The firm was charging clients for this at work the hourly rate of a first- or second-year associate, multiplied by a conference room full of associates, multiplied by months and months of very long days. That arrangement was highly profitable for the firm (since essentially the only cost to the firm was the fixed cost of our salaries). From the clients’ point of view, though, I think it would not be unfair to describe it as a rip-off. They were paying the rates of people with years of top-tier professional education for a job that a diligent teenager could have done. The clients were highly sophisticated international businesses. I think at least some of them must have noticed.

At the time, I thought this was an unsustainable business practice that was bound to change before long. And indeed it did. Within a couple of years, big document production projects like that were being done mainly by contract attorneys, rather than the firm’s own expensive permanent associates. That cut the cost to the clients and mitigated the problem of junior associates leaving in droves because they were miserable and weren’t getting any real professional experience.

But that was only an incremental change. The fundamentals of the business model were the same, with some tweaking of the dollar amounts. The firm hires a lawyer who costs X, puts that lawyer to work on a highly labour-intensive process, and charges the lawyer’s time to the client at an hourly rate of X plus a lot. The profits (X plus a lot, minus X, times loads and loads of hours) go to the partners.

Do you notice anything strange about this? What other businesses determine the price they charge for something by taking what it costs them to make the product and adding a markup? What happens to a business like that if a competitor offers the same thing at a cheaper price? What incentive does the firm have to make this process better, faster and/or cheaper? A computer could probably do what we were doing – very probably now, quite possibly even back then – faster, about as accurately (maybe more accurately), and at a much lower cost. But for a law firm to adopt the technology that could do that would be economically self-destructive.

I love the law and I love the legal profession. When I talk about things that aren’t working well in the legal industry I don’t mean to denigrate the smart, honourable and often very idealistic people who are part of it. This post is not a set-up for a lawyer joke. Also, it’s important to remember that all human institutions are imperfect, and none of them do everything they’re designed to do really well all the time.

And yet. The legal profession seems to be facing a critical moment in its sense of identity and purpose of which my e-discovery experience a decade ago was merely a symptom.

What really strikes me now about that situation is that it didn’t work for anyone. It was unfair to clients. It was soul-destroying for associates (and then for the contract attorneys). It wasn’t even working for the partners. Yes, they made profits from it, but I think they saw how different this was from the traditional way young associates used to come up and learn the craft of being a lawyer from their seniors, and they were uncomfortable about it.

Above all, the whole situation undermined the ideal of the lawyer as a learned professional providing carefully tailored expert counsel and representation. This reality was a lot more like working in a factory, or being plugged into the Matrix.

To paraphrase Lincoln, you can’t displease all the people all the time. At least, you can’t do that and expect to go on the same way for very long.

Later I learned that I wasn’t the only person to have noticed that something wasn’t working. There is extensive literature on (for want of a better umbrella term) disruptive innovation in the law. There are many brilliant people coming up with new models and using developments in technology to unlock new possibilities.

I have to acknowledge that some of the ideas out there about the future of our profession are a bit discouraging. Richard Susskind, in his brilliant book The End of Lawyers, speculated that one day lawyers could go the way of the old medieval guilds, like tallow chandlers. He could perhaps have added the obsolete legal para-professionals of the past, like scriveners. Maybe years from now future generations might have to ask museum tour guides and historians to explain what lawyers were.

But nobody knows the future. Lawyers might be in for a better future than the tallow chandlers and the scriveners. In fact, we may be on the verge of a very exciting time, when creative new ideas and new technologies could solve some of the problems that for years have undermined our profession’s effectiveness in living up to our ideals of public service, justice and equality.

We are probably looking at a future that’s a complex mixture of both – endings and losses entangled with opportunities and rich rewards.

Setting off into this unpredictable future is – like a road trip without a map – scary, but also exciting. What I hope this course will achieve is to equip the students, my partners, with some kind of road map for their futures. They may be maps with some empty bits marked with nothing but “here be dragons.” But it’s a start. And while I hope to create an environment that enables my student-partners to chart their course, the maps will be their own work, created by themselves, because no one else can do that.

On Labour Day weekend a few years ago, when I lived in Nova Scotia, I set off with a friend and a posse of dogs on an afternoon day trip to the beach – and then, spontaneously, that turned into an unplanned weekend-long road trip around the province. We had no idea what we were going or how we would get there. We did have GPS, though!  I suppose these days there’s no longer any such thing as a literal road trip without a map!

That was one of the best trips of my life. I hope this one turns out to be just as good.

Away we go!