Lawyering After the Pandemic—A Jolt to a Better Future If We Take the CueApril 28, 2021
By Bob Glaves | CBF Executive Director
As a profession that puts a premium on precedent and still regularly uses terminology from hundreds of years ago that few understand, change does not come easy to us as lawyers. But like everything else in our lives, the practice of law got an epic jolt when the pandemic hit.
As was true with the courts, the way lawyers quickly adapted to the new reality was impressive and inspiring, and now the million-dollar question is what we will do with that newfound knowledge and experience as we start the transition to a new normal. That is the backdrop for the following three-step process towards a better, more inclusive, and more accessible profession going forward, and the next stop on the journey to fulfilling my 2021 Resolution for the profession.
A Three-Step Process Towards a Better Practice of Law
Think of this process as a tall ladder.
The rungs at the bottom are easier things that every practitioner can do right now to make the practice of law better, particularly for consumer facing practices. As we move up the ladder, the rungs start to get a bit steeper and more challenging, but we can see a big payoff and just need some help from above to keep going.
And as we get up to the top, we suddenly can clearly see a much better practice of law if we can manage to stay up there. But the winds are swirling around us and we need some strong hands below to hold the ladder steady and a rope from above to make sure we don’t get blown off the peak.
Okay, enough with the metaphors, let’s get on with it.
Step One: Big Things We Can Do on Our Own
Lawyers by necessity learned a lot about how we can make our services more accessible and efficient for clients over the past year, offering remote service options and using technology to connect with clients, other parties, and the courts.
Meanwhile, even before the pandemic, clients increasingly were interested in having a range of service options that include technology-based products and services that can be a realistic solution for their legal problem. The past year significantly accelerated that trend and clients now expect in just about every part of their lives that they will have this broader range of service options.
This makes now the perfect time to map your client’s journey (or update your prior map) to see you how you can use the lessons of 2020 to more efficiently and effectively reach your potential clients and offer them a broader range of service options whenever it is practicable.
A good journey mapping process will challenge you to rethink your pricing and its transparency (the billable hour looks worse than ever in the new normal), evaluate where you can offer limited scope services as an option, look at how technology can streamline the process and improve accessibility, and truly prioritize your client’s experience from their first point of contact to long after their matter has concluded.
While technology and innovative service options are more integral parts of this process than ever, there is still nothing more critical than that last point. The legendary Maya Angelou said it best: “People will forget what you said, people will forget what you did, but people will never forget how you made them feel.”
Step Two: A Helping Hand
While there is a lot we can do to make the practice of law better on our own, to do it as cost-effectively as possible and at the scale necessary to meet the huge unmet needs in the market requires that we modernize our regulatory framework for the business of law.
In terms of what that looks like and why it matters in this context, as I said in my post back in September:
Instead of leaving consumers to find their own way in a confusing legal world, let’s start by freeing up lawyers to better connect to the communities they serve and to use proven business practices to give people affordable access to a range of legal solutions.
Instead of limiting lawyers to the one-size-fits-all law firm model, let’s join our fellow professions by allowing lawyers to use a range of business models to meet their and their clients’ needs.
Instead of trying to shut out technology-based products that consumers clearly want and already are using without going through lawyers, let’s ensure these tools are quality legal solutions and empower lawyers to get involved in providing technology-based services as part of their practice.
By bringing our regulatory framework for the profession into the 21st Century, we can address all of these issues in a way that enables all lawyers to deliver the modern service options that both individual and business clients want and need while staying true to our core values as a profession and protecting the public.
Thankfully, the CBA/CBF Task Force on the Sustainable Practice of Law & Innovation already developed a comprehensive suite of recommendations to address these issues and more, and their report was formally submitted to the Illinois Supreme Court last fall. The Court has responded favorably to the Task Force report and most of the recommendations, and internal Supreme Court Committees are currently assessing potential plans for execution of these proposed changes.
Step Three: Rethinking How We Got Here and Stay Here as Lawyers
The first two steps will take us a long way towards a better practice of law, and they are achievable in the near term, but that should not stop us from continuing up the ladder to tackle this third step even though it will be more challenging and take longer to address.
Two things happened in 2020 that shined an overdue spotlight on the way people become lawyers in the first place and how we can best assess and ensure quality and diversity in the profession.
The Bar Exam—why do we still have it?
The first jolt was the pandemic and the impact it had on the bar exam. When the bar exam could not happen in person, it touched off a debate on whether we should allow “diploma privilege” to allow those unable to take the exam to start practicing. And as most states, Illinois included, eventually pivoted to some form of online bar exam, it appropriately called into question why we have the bar exam at all when few believe it has anything to do with the actual practice of law.
It was exciting to see this as a featured topic at the Illinois Supreme Court Commission on Professionalism’s Future is Now conference this week. Jordan Furlong, one of the conference’s keynote speakers, shared a compelling vision of an entirely new framework that starts with legal education, how people become lawyers at all, and how we can better define and ensure professional competence throughout a lawyer’s career.
Furlong laid out that vision in more depth in a recent blog post, Radical roads to lawyer formation, and I encourage you to take a few minutes to read that when you have a chance. As he noted, the Institute for the Advancement of the American Legal Profession (IAALS) also has been doing good work on this subject, highlighted by their recent report, Building a Better Bar.
The common denominators are that we should give a broad rethink to the law school curriculum (as some schools already are doing), to how we ensure lawyers are prepared to practice on the first day they get their license, and to how we properly assess professional competence in our profession.
Diversity in our profession-why such slow progress?
The second jolt was the long overdue reckoning with racial justice in our country and in our justice system that followed the murder of George Floyd last summer. As part of that broader reckoning, there has been renewed attention on why the makeup of our legal profession is still not reflective of the makeup of our community as a whole despite 30+ years of intensive focus on these issues.
I am far from an expert on this point, but the persistently low racial and ethnic diversity in our profession tells us there are some bigger structural issues that relate back to the section above on how we become lawyers in the first place. Rethinking how we finance and repay the costs of higher education in our country is certainly an integral part of the solution, but the problem goes far beyond that.
What role does the LSAT and the traditional law school admissions process play? While diversity in the overall law student population has certainly improved faster than what we see in the overall profession, the problem starts here. And then we are back to the bar exam again, where we need to take a broader look at what role that may be playing in this problem when we know it is not a particularly good way of assessing lawyer competence.
There is no doubt that these “Step 3” issues are going to be hard to tackle, with lots of vested interests in the flawed status quo and not insignificant barriers to making the fundamental changes necessary. But if not now, when are we going to tackle them?
We Can Do It!
If we learned anything from the past year, it is that we are a lot more resilient and adaptable as a profession than most of us ever imagined before the pandemic. While we are still in that mode is the perfect time to take things to the next level to make the practice of law more efficient, accessible, and inclusive for lawyers and clients alike.
All of us share a special responsibility for the quality of justice in our state, and we may never have a better opportunity to make things better than we do right now.