Legal profession: Sickness unto death? Or, a return to enduring value? 10 Challenges Facing the Profession.

OWL named gailBrooks Pierce’s exceptional Director of Recruiting and Professional Development, Gail Cutter, has one mighty dyspeptic view of the challenges currently facing the legal profession. Yet, she is a true believer in the enduring value of a legal education and the nobility of the profession.

Gail is a remarkable (and not ignoble) professional herself. Her thoughts are valuable and they are set out below, in her words and with her permission. They merit attention.

(By the way, MidLaw has a different take on many of these same issues. That is, MidLaw agrees with many of Gail’s premises, but has a much rosier perspective. We are a good team.)

10 Challenges Facing the Legal Profession

1. The regard in which lawyers and the legal profession are held has declined precipitously over the past century, particularly since the 1970s (Watergate, general distrust of institutions). Once considered pillars of the community, statesman and leaders in all walks of life (business, government, the non-profit sector, academia), lawyers are now roundly disliked and distrusted and famously serve as the butt of jokes.

2. The Cautious/Covetous Generation: The profession is now being run and shaped largely by people who entered the profession for all the wrong reasons. (I say this as a 1987 law graduate myself.) Starting in the 1980s, as salaries climbed steeply and the media, aghast, spread the news, more and more college grads pursued JDs for the wrong reasons. Too many applicants were drawn by (a) the lure of high-paying jobs, and/or (b)their risk-averse natures, seeking stability and safety. A JD was the safe, acceptable, well-paid ‘default option’ for the unfocused college grad. (B-school applicants at least had to commit to two years in the real world.) This trend was exaggerated in the 1990s, as law firms boosted salaries repeatedly to compete with the largesse of dot-coms. The obsession with data in general and the U.S. News rankings in particular appealed to applicants driven by the bottom line. Only the hardcore public interest-minded souls still purported to be motivated by the idealism that once brought many to the law (even those bound for the private sector).

3. Legal Education, the Cash Cow: Many legal educators have lost the plot. The notion of legal academia as a bastion of high values, idealism and service has deteriorated as pressure has mounted for law schools to function as university profit centers. The rise in the cost of higher education has far outstripped the cost of living, of course. Law schools, relatively efficient operations with large classes and low overhead, are handy to fill university coffers and fund medical schools and science centers. Law school deans are under pressure to spend more and more of their valuable time fundraising. LLM programs and JD transfer programs have proliferated to feed the drive for FTE. As law schools have been run increasingly like corporations, the culture has turned. (I make this observation as a veteran of 15 fulfilling years in law school administration.)

4. A Million Unhappy Lawyers: The perfect storm has raged over the past 30 years: Law firms have grown exponentially in size and complexity. As the deals got bigger and bigger (see the M&A boom of the 1980s and beyond), the work became more specialized, technical and rote. Ditto Big Litigation. Law firm merger mania (once big news, now just a fact of life) has diluted firm culture and history, creating firms that are essentially multi-national corporations with brands created on Madison Avenue. Add high hours, massive, unwieldy and mind-numbing cases and deals: It was inevitable that associate dissatisfaction would follow. (Particularly when lawyers were entering the profession for the wrong reasons, without a clear notion of any career path—and the legal career-ball kept moving.)

5. Attrition and Massive Institutional Instability: The pyramid structure that defines the modern law firm’s economic model builds in mass attrition and razor-thin partnership chances. Partners have little incentive to invest in training and mentoring junior associates; the odds are slim that those associates will stick around. Clients thus cannot count on having lawyers with a deep understanding of their business, challenges and goals. The “Trusted Advisor” – a core identity of the Happy Lawyer of the Glorious Past—does not work in this setting. Without stable law firm teams, fleeting client loyalty should come as no surprise. Further, as GCs face unrelenting economic pressure, law firms are squeezed on price and must hold a ‘dog and pony show’ for most every deal or case. For fancy law firms, this can feel unseemly and humiliating (or at least it did at first). Law is no longer fun or fancy.

6. Law as a Business: The Personality Disconnect: The bottom-line reality that faces every private practitioner of a firm large or small has created a huge disconnect from the Respected Professional/Trusted Advisor model. In addition to market forces which drew bottom-line oriented, risk-averse applicants to the law, instead of Atticus Finches and Clarence Darrows, there is now a massive personality disconnect. The senior cohort currently running major law firms, in many cases, is ill-suited to the current shape of the business of law. One must be a whiz CEO-investment banker-glad-handing salesperson to survive, succeed and enjoy law firm management. The archetypical intellectual, bookish tax-lawyer type is the polar opposite of the schmoozer/businessman who thrives most readily in modern private practice. Or a firm can have tremendously successful lawyers in “production,” but they are not matched by the experts in “sales” and management needed to lead firms into the future. Most lawyers famously lack the soft skills, sales skills and management abilities now needed to succeed in the law. Law schools are not equipped to teach them.

7. The Talent Pool is Diluted: Greed, risk-aversion and lack of sales skills are bad enough among our professional community. We could always count on attracting the best and the brightest. No more. Thanks to the financial collapse of 2008, the bottom dropped out of the large law firm market.  It is not predicted to return to that high-water mark. financial collapse of 2008, the bottom dropped out of the large law firm market. It is not predicted to return to that high-water mark. Thanks to data transparency, social media and the ubiquity of the Internet, vague (and just plain inaccurate) law school employment and salary statistics were found out. The inaccuracy and inadequacy of the U.S. News rankings were laid bare, and the ABA was forced to step in and require better consumer data. Now, college students at the top of the academic food chain are turning away from the law. (Given the negative popular perception of our profession, it is deeply disappointing but not surprising.) Based upon the precipitous drop in LSAT scores and GPAs of law school applicants, future lawyers seem to be getting dumber—um, less intellectually gifted. The alarming drop in the bar passage rates make a convincing case that this is true.

8. The Talent Pool is Shrinking: If the future lawyers are getting dumber, at least there are fewer of them. (The food is bad, but the portions are small.) In our cherished profession, which has been the wellspring of so much progress throughout history and good works to this day, it is not laughing matter. Until leaders of the profession can wrest back the reins and rebrand the legal profession, we will not be able to win back the best, brightest, most innovative and ambitious. Universities have created countless joint-degree programs and have aggressively fought for and won the students who would have in the past pursued JDs. Educators in public policy, international affairs, public affairs, business—even medicine—have been far more strategic and creative in designing programs and pursuing the best candidates.

9. The Haves and Have Nots: While leading law firms fret about the shrinking pie of high-priced work, the vast majority of Americans have no access to legal services. The salary disparity between entry-level associates at large firms and legal services lawyers and public defenders is shocking. The vast majority of lawyers in private practice make a fraction of what large firm lawyers do, rendering ‘median’ salary numbers useless. (No wonder potential law school applicants cannot make sense of the data.) This is a significant systemic problem in our profession—and it certainly extends beyond to the economy at large. Our profession once saw itself as a cohesive whole; lawyers from various cities, regions, specialties and settings could find common ground and connect—often being more comfortable with each other than with non-lawyers. The vast chasms that divide us now, from top law schools to the rest, BigLaw to the vast majority of firms—this adds to the difficulty of coming together to reimagine ourselves and reinvent our profession.

10. Do We Have the Will? I see the profession as increasingly splintered, with little to bring us together. Even the leaders of the bar coalesce around topics, issues, affinity groups, specialty areas. This has enabled us to make great strides and to exercise leadership in a world that is increasingly splintered and complex. However, it makes it more difficult to imagine a ‘movement’ to bring the profession back to the glorious days of yore.

In spite of my dire “Top 10” list, I am a proud JD and a true believer in the enduring value of legal education. Private practice will remain relevant (and profitable) by bringing innovative thinking and creative problems-solving to serve clients in new and unimaginable businesses, industries and technologies. In these posts, Ed Winslow has argued convincingly for Liberal Arts education as the best preparation for this future world, inculcating flexibility, nimble thinking and innovation. For my money, the JD is the ultimate professional Liberal Arts degree.

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