Why Is Innovation So Hard For Lawyers And Firms?

Building a more productive practice requires building a more productive profession.

Even an internationally recognized futurist is no match for the inertia and entrenchment of the legal profession.

That was my sense after the opening day keynote last week at ILTACON, the annual conference of the International Legal Technology Association. Futurist Lisa Bodell is founder and CEO of futurethink, which teaches companies to “become award-winning innovators,” and author of Kill the Company (affiliate link), a book that tells companies how to start an “innovation revolution.” She delivered a rousing message of the need for organizations to break through complexity and complacency, urging, “Change is a choice.”

Lisa Bodell

Bodell was a good speaker and an inspiring one. But I felt her message of organizational change failed to take into account one major factor: We’re talking about the legal profession here.

“Complexity is our new operating system,” Bodell said. She cited numbers of how a typical employee spends a day:

  • 45% in meetings.
  • 23% emailing.
  • 18% doing unproductive work (including time spent walking to meetings).
  • 14% doing “real” work.

How do organizations break out of complacency and complexity? Kill stupid rules, she said. Empower decision making. Be the chief simplifier. Focus on meaningful work by distinguishing between time spent doing work and the value of the work.

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She welcomed those in the audience to steal her four key tactics for gaining more time and focusing on more meaningful work:

  1. Kill stupid meetings.
  2. Change the frequency of meetings.
  3. Type “NNTR” in email subjects to let recipients know there is no need to respond.
  4. Appoint a cut-the-crap committee.

This was all good advice for any organization. And maybe, in many verticals, it was advice that could deliver on the promise of bringing about innovation.

But not in law. Here is why: The obstacles to innovation in law are not merely organizational. They exist outside the organization, in the form of outmoded regulatory rules, an outdated justice system, and a culture that resists change and reinforces the status quo.

To put it another way: A major inhibitor of innovation within law firms is not the firm’s own culture, but the culture of the legal profession as a whole. It’s not enough to talk about how to “kill the company,” we need to talk about how to kill the system and reinvent it for the 21st Century.

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And that’s not easy.

Perhaps I came into Bodell’s talk with a bias, because two days earlier, I’d been in Utah, meeting with a group of bar leaders to discuss how to make change happen there in order to address the state’s growing access-to-justice gap. We talked about the key issues — advertising, UPL, private investment, fee-splitting, education, and more — and I think everyone in the room would have agreed that answers are not easy. These are tough issues requiring careful consideration.

Take advertising. In 2015, the Association of Professional Responsibility Lawyers issued a report calling for a radical paring down of lawyer-advertising rules. The rules “are outdated and unworkable,” APRL said, “and fail to achieve their stated objectives.”

Mind you, this came from the very lawyers who regulate the profession and enforce the regulatory scheme. They proposed boiling it all down to one rule: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

Spurred by this report, the American Bar Association took up the issue and spent two years studying how to streamline and modernize the advertising rules. In August, the ABA House of Delegates approved a set of amendments to Model Rule 7 that were touted as a “significant philosophical shift” that brought the rules “into the 21st century.”

That’s off by about a century, many commentators said. Responsive Law described the amendments as “a very watered down version” of the APRL recommendations that “do not do enough to improve and streamline” the rules. Josh King, former chief legal officer at Avvo, said the changes “fail to address the litany of constitutional, antitrust, and plain bad-for-the-public problems inherent in the rules.” Carolyn Elefant said the changes are nothing more than “a cut-and-paste reorganization of a couple of sections of the rules and a post hoc ratification of innocent conduct.”

But others praised the rules and defended their moderation. “We were going for Goldilocks,” Dennis Rendleman, lead senior ethics counsel in the ABA Center for Professional Responsibility, told the ABA Journal. “We didn’t want the bed too hard or too soft; we wanted it just right.”

Getting innovation “just right” is hard in law. Advertising is just one example. But on any of the key issues — private investment, UPL, fee-splitting, etc. — there are tough questions and strong arguments all around.

At ILTACON, Bodell implored attendees to kill stupid rules. Firms can do some of that. But firms operate in a highly regulated and cautious environment that resists innovation. And while some of the rules may be stupid, most aren’t. They exist for a reason. Even if they are due for change, changing them is complex and difficult.

Yes, law firms can innovate. But for true innovation to occur within firms, it must also happen outside them. And that isn’t easy.


Robert Ambrogi Bob AmbrogiRobert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).