Legal professionalism in the twenty-first century: government lawyers as accidental innovators.

• Author: Murphy, Ronalda
• Position: University of New Brunswick Law Journal Forum: Access to Justice

INTRODUCTION

The legal profession is at a crossroads. Globalization, economic pressures and the relentless pace of technological change are altering the way in which legal services are delivered. Simultaneously, the crisis over access to justice for the average litigant--neither rich nor poor--imperils the rule of law project more generally. Traditional concepts of legal practice and the legal professional must adapt or risk irrelevance. For many lawyers--professionals for whom work constitutes their personal identity--the prospect of fundamental change is understandably daunting. In our view, however, it need not be disturbing. We do not need to start from scratch; innovative solutions are perhaps closer than we think. This paper discusses how the delivery of legal services is evolving as a result of globalization and technological developments. We then explore the impact of these changes on the professional status of lawyers, and how the legal community articulates its concerns about the impact of such changes on what it means to be a lawyer. We argue that, surprisingly, it is government lawyers who may represent the vanguard on this issue and offer reassurance to the legal profession more generally. This reassurance, if it can be provided, is of course accidental; no one thinks of civil practice with the government as a radical choice or futuristic by nature. And it isn't. But government civil lawyers have to develop a unique skill-set, and internalize a conception of their client that may provide a model for practice and civility in the radically changing legal profession as a whole. If that is indeed the case, then responding and adapting to today's transformative pressures may in fact be easier done, than said. But first, the problem defined.

The Traditional Professionalism Paradigm

Legal professionalism entails duties and service toward others and is comprised of a number of collective ethical aspirations, including collegiality, service to the public good and integrity. It is a manifestation of the belief that the legal profession exists to further the cause of justice and promote the rule of law. (l) Historically, the word "profession" was associated with occupations that "combined public avowals of high purpose with dedication to service and selflessness." (2) Professionals were people whose livelihoods were dedicated to serving people and communities. (3) These occupations were more than a means of subsistence; they embodied a calling to a greater satisfaction than the pursuit of profit.

The paradigm of legal professionalism determines whether lawyer conduct is legitimate, and gives lawyers the exclusive privilege of providing legal services and autonomy in regulating their profession. (4) The notion of legal professionalism arose in the late nineteenth century in response to growing concerns that the more "entrepreneurial" aspects of law were eroding the profession's reputation. (5) Professionalism is based on an understanding between the profession and society, in which the profession agrees to act for the good of clients and society in exchange for autonomy and self-regulatory powers. (6) Informational asymmetry, altruism and autonomy--each of which distinguished a profession from a business--made this bargain both necessary and possible. (7)

Paradigms live and die (8) and various factors are changing the way legal services are delivered. Legal services are expensive and unattainable for many; technology is ubiquitous and accessible--anyone can Google how to draft a will, the expected award of child support, or participate in debates about sentencing law. Clients are tending toward in-house counsel whose expenditures they control, as opposed to deferring to bills presented by external legal fees. Clients are also seeking to secure more legal service at less cost and are increasingly scouring their legal work for tasks that can be unbundled and outsourced to low-cost providers. (9) The Honourable Justice Cromwell raised such concerns in his recent Viscount Bennett lecture:

Is there a problem with access to civil and family justice? My answer, and the answer of every commentator that I know of, is "yes." Is the problem serious? Again, I believe the answer is "yes." By nearly any standard, our current situation falls far short of providing access to the knowledge, resources and services that allow people to deal effectively with civil and family legal matters. There is a mountain of evidence to support this view. (10) The legal community is worried about external pressures, and in this article we join those commentators who are asking: what impact will changes wrought by globalization, technological developments and economic pressures have on the traditional concept of legal professionalism?

The evolution of legal services into the 21st century

Lawyers have produced legal information primarily in one way: by advising clients in one-to-one relationships. In his book, The End of Lawyers?, Richard Susskind argues that the delivery of legal services is evolving from 'bespoke' legal services, that is "traditional, hand-crafted, one-to-one consultative professional service, highly tailored for the specific needs of particular clients", along a spectrum that includes standardized, systematized and packaged legal services, toward the commoditization of legal services. (11) The move from customized or bespoke advice toward the sale of legal commodities (12) is largely being enabled by existing and emerging information technologies, as companies figure out how to unbundle and systemize legal advice and services. (13)

(A) The onward match of technology

Relentless technological change is transforming the nature of the legal profession in several ways. The rapid adoption of new technology is changing the delivery of legal services by routinizing and commodifying certain legal transactions. Advances in technology could also potentially lead to the democratization of legal practice by reducing informational asymmetry between lawyers and clients--a key condition to lawyers' status as professionals. The legal profession's exclusive claim to the mastery of esoteric knowledge is arguably being diminished by, for example, the standardization of legal documents and the process of hiring legal counsel. (14)

Susskind identifies several 'disruptive' legal technologies--"technologies ... that do not simply support or sustain the way a business or sector operates; but instead fundamentally challenge or overhaul such a business or sector" that are transforming the delivery of legal services. (15) These disruptive legal technologies include: automated document assembly, relentless connectivity, electronic legal marketplace, e-learning, online legal guidance, legal open-sourcing, closed legal communities, workflow and project management, and embedded legal knowledge. (16) It is commonplace for medical patients to do their own Internet research before consulting their doctors. Likewise in law, especially family law, clients come in the door after they have done their own investigation into the law and are quite prepared to challenge the costs associated with securing legal advice. Susskind argues that disruptive technologies will to some extent displace conventional lawyers by challenging the traditional, one-to-one consultative, advisory service that has characterized the legal profession for decades. (17)

(B) The unbundling and outsourcing of legal services

Clients and law firms alike have also begun to use some non-lawyers for certain legal services. (18) Outsourcing, for example, is quickly becoming a part of mainstream legal practice. Starting in 2008, the economic downturn caused more clients and law firms to send more legal work offshore. (19)

The kinds of legal work being sent offshore are varied and changing rapidly. One recent U.S. study indicates that in general, approximately 15 per cent of legal process outsourcing professionals were performing work equivalent to a junior lawyer, and approximately 85 per cent were performing work equivalent to that of a paralegal or administrative support professional. (20)

Foreign lawyers are also starting to perform more complex legal work such as research support, which includes cross-jurisdictional surveys of state and local statutory regimes, as well as helping to write briefs and analyses of statutory and case law, citation checking, document drafting and preparing drafts of patent applications. (21) To be sure, legal outsourcing currently focuses on the routine end of legal work, such as risk management, contract review and patent searches, rather than the sophisticated transactional work that has been the traditional law firm's comparative advantage. (22) However, law firms have always sought out this classic type of legal work in order to keep their coffers filled, and so they have become more vulnerable to competition from commodity suppliers. (23)

(C) The emergence of a legal information market

The traditional manner in which legal services are provided is therefore changing as lawyers "lose their monopoly over the law" and are faced with increased competition from organizations that provide similar services. (24) Law firms are being pressured by a variety of forces, including more knowledgeable and savvy clients, new legal technologies and a more competitive international market for legal services. (25) At the less expensive end of the...