Why do so many lawyers have an unshakeable sense of their own superiority?

There is something about the legal profession that seems all too often to foster an innate sense of moral superiority amongst its participants; a superiority which is often quite simply not justified in practice. Nowhere is this more clearly demonstrated than in a letter to the American Bar Association’s Ethics 20/20 Commission written by nine general counsel of very significant global business.  The letter contends that any form of non-lawyer ownership of law firms is bad for clients, and that any proposal to permit it “opens the door to arrangements that make the practice of law more like other businesses and less like the distinct profession it has always been”.

They said supporters of reform have not made the case for it: “Our tenures as general counsel have given us no reason to believe that our business clients will be better served by a legal profession that is open to non-lawyer ownership. Quite the contrary, we fear that the inevitable chipping away at the profession’s professionalism ultimately will do a disservice not just to the business clients we serve, but to all clients who seek the trusted and confidential advice of counsel.”

Let’s just look at some of those points in detail.  Firstly, there seems to be a clear implication that making the practice of law more “business like” is a bad thing.  What do they mean by that?  One might assume that here they are distinguishing businesses as being motivated by profit, as opposed to professions which are supposedly motivated by vocation or a sense of justice, and consequently suggesting that it would be a bad thing if the legal profession was more business like.  But in the land of 2,000 hour billing targets and eat-what-you-kill mentality amongst many law firms, this rather rings hollow.  Anyone who believes that the majority of law firms are not focused on profit is, frankly, deluded.  If it was true, why would there be such frenzied interest in the PEP figures published each year? Why would billing targets be set so high, and so rigorously monitored? Indeed, the authors do in fact acknowledge that maximising profit is already a fact of life in the legal profession, but seem to suggest that by allowing external investment, the situation would be further exacerbated.  I am not sure there is any evidence to support that contention.  Is it really credible that at the moment, the big multi-national law firms reach a point at which they say they have made enough profit and start behaving in a more altruistic manner?  I think not.  

Of course there are areas of law where practice is truly vocational and the participants carry out often thankless work despite the lack of a stellar (or sometimes even any) remuneration – those who dedicate long hours to low paid cases for disadvantaged people, for example – and very laudable they are too, but these are very much the exception rather than the rule, and by and large they operate in areas of law which are not the focus for the authors of the letter.  I can’t imagine that CISCO or IBM are really fighting the cause for lawyers working pro bono on immigration cases, for example, and even if they were then it is hard to see that these types of areas would be those targeted by many non-lawyer owners of legal businesses, as they are simply not remunerative enough. 

So if we accept that the majority of lawyers are indeed already trying to make a good profit, then why would external ownership of law firms and the introduction of a “business like” approach really make much of a difference?  The changes to law firm ownership are not just about allowing private equity firms to invest in legal business, it is also about allowing individuals with different professional backgrounds to participate in the equity of the business, and it is difficult to see why they should be any differently motivated than the lawyers themselves.  And why, indeed, should the majority of lawyers, who are concerned with making a good profit, be embarrassed about that simple fact, provided they are delivering a good and valuable service in a free market?

So if it is not the profit motive that the letter is targeting in its condemnation of a “business” approach in law, then what else could it be?  A focus on efficiency and client service?  It strikes me that if they think applying business principles to these areas of law would be a bad thing, then they are very wrong.  It never ceases to amaze me that long after even the banks dragged themselves into the 21^st century and started focusing on accessibility, transparency and client service – by offering 24 hour online banking and extended opening hours at physical branches, for example – most law firms are still stuck very firmly in the 20^th century.  Yes, in the rarified world of the general counsel of some of the world’s biggest companies, I am sure that there is a great deal of satisfaction with accessibility – no right-thinking commercial lawyer would be without a smart-phone nowadays, and available to jump to a client’s tune whatever the time of day or night provided the billing rate is high enough.  But this is a very far cry from the practice of law experienced by ordinary members of the public, who may want some conveyancing done, or help with a divorce, or a will, or a criminal charge.  By and large (there are a handful of honourable exceptions), they will have to put up with pretty arcane practices.  Few people can instruct a lawyer online.  Most will have to make appointments in person, within limited office hours, no weekend opening and with little idea of how much it will all cost.  In this day and age, that is simply not good enough.  Why can’t people instruct lawyers online, using automated workflow systems?  Why can’t they routinely use skype or non-standard hours services?  The simple answer is that most lawyers have not bothered to use technology to improve accessibility because they haven’t wanted to, not because clients wouldn’t welcome it.  And thanks to the closed-shop world of lawyering, they have been able to get away with it for years, because there were precious few firms offering anything better.  It is early days to assess the impact of the ABS reforms in the UK, but I for one do not think it is a coincidence that for the first time we are starting to see a small number of UK firms challenging some of the traditional business models, and using technology to deliver better service and accessibility to clients.

But this isn’t just my view – only a month ago the UK Chief Legal Ombudsman released a new report saying that the legal profession must learn the value of clearer pricing information and good customer service or risk falling behind more marketing led companies in the long run.  The man who sees more situations than anyone where the client/lawyer relationship has gone wrong is himself calling for a more business-like approach to client service, which would tend to suggest that the authors of the letter are kidding themselves about the status quo

So I would contend that they were quite wrong to suggest that running law firms like a business would be a bad thing.  The truth is, law firms already have the business discipline of chasing profit, but they have got away for years without having to truly deliver on the client service side of the business equation, because they operate within an artificial market with limited competition.

But what of some of the other statements in the letter?  There is a statement that allowing non-lawyers to have an interest in law firms will result in a “chipping away....at professionalism.... [which] ultimately will do a .... to all clients who seek the trusted and confidential advice of counsel.”  So, are we supposed to believe that only lawyers can be trusted to have professional standards?  Or to maintain confidentiality?  What about accountants?  Or doctors?  Or counsellors?  It is staggeringly hubristic for lawyers to look down their noses at the professionalism of others.

The authors go on to say that  “And our discussions with other lawyers and in-house counsel have revealed no great interest in or need for non-lawyer ownership, let alone any groundswell of support for such a change.”  But with respect time and time again, when considering change in the profession lawyers consider the question from the wrong end of the telescope, by asking themselves what they the lawyers want to happen, and not what would be the best for the clients they serve.  It is hardly a great surprise that lawyers themselves are not likely to be banging down the door to allow non-lawyers to encroach into a world which has been a closed shop up until now.  What business would lobby to allow greater competition against them? 

The authors of the letter seem to have a very rose-tinted view of a profession motivated solely by the best interests of the client, working tirelessly to uphold justice, and with very little customer dissatisfaction.  And that may well be what the world looks like from the ivory towers of some of the world’s biggest companies, where law firms will bend over backwards to tend to their clients’ needs.    But that was not the end of the market that the Legal Service Act in the UK was designed to improve, it is not the part of the market that the US is currently debating, and it is not the real world for millions and millions of people who have to engage the services of lawyers through no fault of their own and who find the experience confusing, inconvenient and expensive.  A look at the complaints statistics regarding lawyers will show how much better the legal market could be.  And I for one believe that bringing in some new blood – people with different business backgrounds from lawyers – could be just what is needed to improve the lot of the vast majority of the population in their interaction with their legal advisers.

I gave this article a deliberately provocative title.  There are some great lawyers around.  There are some truly motivated people who will bend over backwards to provide a good service, and hope that they can make a good living out of doing so.  And so should they.  But it is very dangerous territory to think that there is something special or different about law that makes it and its practitioners somehow superior to others.  The real winners from the changes sweeping through the legal profession will be those who use the changes to improve the system, and not those who stick their heads in the sand and look at the issue only from the perspective of the lawyers themselves.