The Message From Harvard: “New Law” Is Replacing “Biglaw” How Will The Profession Respond?
Oliver Goodenough recaps Harvard's workshop on Disruptive Innovation in the Market for Legal Services.
You know that something cutting edge is about to become accepted wisdom when Harvard has a symposium on it. The Program on the Legal Profession at the Harvard Law School held a top-level, day-long workshop on Disruptive Innovation in the Market for Legal Services. Speakers included Clay Christensen, Martha Minow and Richard Suskind, visionaries in innovation theory, progressive legal education, and the legal practice of the future. Folks in attendance straddled law firm partners, start-up entrepreneurs and legal academics. The meeting provided a punctuation point in our understanding of the great restructuring that is overwhelming law – we don’t necessarily know where it is headed, but denial that significant change is under way is no longer intellectually defensible.
Looking into that murky future, one pretty clear conclusion is that “Biglaw” is in trouble. The mega-firms that have been able to throw significant pools of talent, in a moderately organized yet highly compensated fashion, at the large scale challenges of operating a business, a charity or a government in an era of legal and institutional complexity are increasingly unable to sustain their business model. The advantages of scale, flexibility, expertise and management that made large firms the tyrannosaurs of the 20th Century are being redistributed across an ecosystem of new players. These upstarts use offshoring, practice management, technology, and big data to do many of the things that law has done cheaper, faster and better. An emerging world of “New Law” is upon us, and the game is rapidly moving from vision to implementation.
The presentations at the symposium were about evenly split between demonstrations of new technologies and discussions of the impediments of business models, expectations, and lawyer regulations that stand in the way of their implementation. The rules on unauthorized practice, lawyer qualification, other professional designations, and law firm capitalization were often cited as concerns. It is clearly time for our judiciary, bar, and legal educators to push through sensible yet significant changes in the regulation of legal practice. These changes should both open the door to the creative innovations that are bubbling up all around legal services and subject them to sufficient oversight to ensure that these new actors, products, and modalities meet the needs of the public. The new wine needs new bottles, but not no bottles at all.
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Legal service regulation should be rooted in timeless goals, but not wed to any particular time-specific rules and approaches devised to implement those goals. Approaches that foster quality of service, equality of access and result before the law, and client confidentiality can apply to legal services delivered through many means. Meeting these goals does not require conforming to a particular model of professionalism embodied in a person called a lawyer that is our legacy system of the moment. If we give actors such as LegalZoom, Novus Law and Shake a place at the table, then we can fairly set some terms that help to make sure they are quality players. If we keep them on the outside, we lose that opportunity, and must accept the consequences.
New Law is taking its place in our justice system. The traditional guardians of the legal profession – i.e. many of the people in attendance at Harvard last week – should deploy their experience and power not to delay this transition, but rather to help shape New Law in the service of justice and societal progress. If this is to happen, the regulatory gatekeepers of practice need to immerse themselves in the wide range of developments that are taking place. This exploration should be done with both a completely open mind, devoid of any unexamined desire to protect the status quo, and a healthy skepticism about the ability of any particular reform on offer to provide an improvement. Supported by this first stage, they should develop and support specific new regulatory approaches that (i) open up legal services beyond the traditional idea of lawyer-centric practice but that also (ii) create regulatory frameworks for the new service models that will preserve the important goals of justice and public protection. The ABA 20/20 process was a start on some of this, but it came nowhere near dealing with the kind of change we are facing.
Then again, maybe it doesn’t really matter all that much whether Harvard, the ABA, or the courts seek to help or hinder the process. In the tech world, entrepreneurs approach rules with a particularly flexible philosophy: “Ask forgiveness, not permission.” The folks building New Law are doing just that.
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Oliver Goodenough is a Professor of Law at Vermont Law School and a Faculty Fellow at the Berkman Center for Internet & Society at Harvard University