Making It Real, Compared to What? — Part II

Immediately you see that Making It Real, Compared to What? Part I defined the central issue just now for law firm management and particularly for managing mid-sized law firms.

Big firms are challenged economically. Small firms must focus on some few lines of work. The place of mid-sized firms is in question. The core identity of lawyers is in play. I keep saying that when a person identifies as a lawyer, he or she has not told you anything meaningful. The inevitable next question is “what kind of lawyer?”

Basic questions are on the table. What does it mean to be a lawyer? What are law firms for? What principles should shape the organization of a law firm? And, what is the place of mid-sized firms in the taxonomy?

History is one way to get a handle on this. Look back to the 19th Century. There were few firms then. People thought they knew what a lawyer was.

As the 20th Century advanced, firms came into being. My intuition says that law firms were organized (i) to share the expense of resources, particularly offices and libraries, (ii) to cope with growing demand for legal services, and (iii) to manage the expansion of legal subject matters. Initially, firms were combinations of co-equal professionals. Partners combined to share overhead, to serve clients in common and to leverage a shared reputation or brand. Growth continued. The partners hired associates. And law firms were off to the races: hierarchies, departments, specialties. Ultimately, big firms discovered leverage and that led them for efficiency’s sake to limit the scope of what their junior lawyers do.

Twentieth Century lawyers performing narrowed functions were separated from the holistic identity of lawyers in earlier times. Large firms addressed the attendant challenges by adding new staff services and functions intended to cover the ground that narrowed functioning had left bare. The added weight of those measures (administration, supervision, recruiting, training, marketing) added to the challenges, not to mention the overhead. And, the narrowing of functions engendered vulnerability to drops in demand.

All that weight, ultimately, has attracted “unbundlers” abetted by technology:  boutiques, outsourcers, legal process managers and the new models, such as Axiom Law, the monoline firms and online services such as Legal Zoom. These new players actually continue the same process that the large firms began: seeking to achieve greater and greater efficiencies by assigning narrower and narrower functions to less and less expensively trained employees.

But wait. Maybe the new technology and the shifting marketplace that are enabling the unbundlers are enabling other models, too. A return to Eden.

(I am no historian. So, when I look back to models from earlier times, I may be filling in gaps with my own imagination. No matter.)

When I look back to the models of 19th Century lawyers, I see individual, autonomous professionals who brought to the legal and commercial marketplaces a liberal education topped off with a course in a tool: English legal analysis. After schooling, new lawyers found different ways to get useful experience in the workings of the legal system, essentially as apprentices. Then, they deployed to solve problems for clients with not much more than their wits and a few books.

What did they do? Well, they administered the justice system and they helped to build a new society and economy. And they coped with slavery and civil war and a burgeoning industrial society and new institutions and industries and new types of business, government and social organizations. A high percentage of 19th Century lawyers were also farmers and businessmen and political leaders and soldiers and churchmen alongside practicing law.

To use 21st Century law-professor language, 19th Century lawyers managed change, complexity and ambiguity. They did it without firms. They brought to the process the capacity to make connections and create and improvise – as well as the clarifying and analyzing and risk-assessing that lawyers have gotten so famous for today.

And now it may be worthwhile to re-examine why law firms came into being in the first place; to ask whether those original reasons still subsist; and (if not) to see whether the 19th Century models might point to new forms of organization, and new kinds of law firms – firms that foster lawyers on the models of those 19th Century guys, instead of the various species of limited-scope drones so many 20th Century models seem to create.

What kinds of organizations foster lawyers on the old models, rather than merely administering legal processes?

I am bold to believe that firms can be formed with that goal. Given the new capabilities that technology appears to be delivering and the possibilities of new-generation networking and collaboration, radically fewer large firms are needed. The resources large firms bring can be replicated in other ways. All the while there remains a need for lawyers who connect and create and improvise (in dispute resolution and agreement formation and all the other domains of practice). And firms of a certain size are needed still to provide a platform for sophisticated practice.

For the right lawyers doing the right work – such firms can be profitable and fun and fulfilling.

Firms like that would be making it real. Compared to our 19th Century forbears.

What are the attributes and skills of “the right lawyers”? What work would they do? What kinds of organizations are needed?  There’d need to be Parts III, IV, V and beyond to explore that.

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