In an age none of us witnessed but all of us learnt a great deal about, explorers fared the oceans to find what they called “new lands”. Except of course they were not new. That was just the understandably narrow and yet nonetheless incorrect perspective of the explorers.
Those explorers several hundred years ago had a crucial but yet rarely remembered crew member on board: the cartographer. It was his duty — not just job, but duty because most of them didn’t volunteer for the journey — to map the coast lines and the nearby in-lands whenever excursions were ordered. If you study their maps you may notice a rather frequently repeated term on their maps:
Hic sunt leones, it says there.
Here are lions. As it turns out that was a welcome excuse for the cartographers to hide their laziness or their lack of enthusiasm to explore the so-called new lands. If you scratched Hic sunt leones on the map and then made up the landscape around it, it would take some brave soul — usually on an expedition several years later — to ignore the warning and lay bare the bluff.
Hic sunt leones. Are we in the legal profession engaged in a modern equivalent of that bluff? I ask this provocatively because as lawyers we also need to confront some unchartered territory with honesty and courage.
While it is a well-known but nonetheless shameful secret that access to justice for regular (as opposed to corporate) citizens lags badly in many countries, with the US and Canada among them, some progress is being made. However, that progress has moved at glacial pace. But has it been any better in the corporate world where well-educated companies with their own lawyers should be able to overcome geographic constraints and pay for the services? Unfortunately, progress there has also been spotty.
While everyone will say that competition among lawyers for corporate work is steadily on the rise, that alternative service providers are wanting a seat at the corporate buyers’ table. It’s also obvious that legal services has become a corporate buyers’ market, and the reality is that change has been confined to the small pockets.
It’s also obvious that legal services has become a corporate buyers’ market, and the reality is that change has been confined to the small pockets.
A deep recession, a loud public corporate counsel claim for “more for less” and increasing technological innovation has yet to produce the often-proclaimed reset in legal services. The progress is actually small potatoes even if many feel that a paradigm shift is coming.
Why is there so little progress to date? Because the truth is that the market, i.e. the buy side, doesn’t know what it wants. Corporate counsel want to pay less and have services more tailored to their needs, and want their providers to be more responsive. But the rest — how all that is provided — is up to the suppliers. New solutions must come from providers. The providers, however, continue to do very well in the current state. So they adopt just a few reactive measures for important clients and develop some “fig leaf” innovations such as project management and lower cost lawyer contingents and other measures seemingly showing efficiency improvements.
If the corporate clients are not having the confrontational conversation with their lawyers, how could any occasional consumer of legal advice have any such conversation? The lawyers will simply refuse to work for such a client. In all this, the market dynamics are not poised to enable rapid change and improvement.
This is where regulatory reform comes in; courageous regulatory reform that evolves the legal profession and keeps it relevant. What started many years ago in Australia was picked up in England and Wales a decade ago and has led to a world-wide discussion of “alternative business structures” (ABS) and “entity regulation”.
These two central unknowns where picked up by Legal Futures Report of the Canadian Bar Association which proactively brought the regulatory reform debate in North America to a new level. Since then, the law societies in Canada, who are the regulators at the provincial level, have begun debating it. The provinces of Nova Scotia and Manitoba look likely to be front-runners in the change. Ontario — the most lawyer-intense province — is trailing far behind, more or less openly stalling the reform process.
This is where regulatory reform comes in; courageous regulatory reform that evolves the legal profession and keeps it relevant.
And in the United States, the Commission on the Future of Legal Services, established in 2014 by the American Bar Association (ABA) has launched a comprehensive review and is poised to come up with some suggestions that will challenge the status quo. Those would have to be endorsed by the rather conservative (or better: protectionist) House of Delegates of the ABA before they could become official recommendations. And those would then have to be converted into actual regulation by the states.
Overall, while the debate in North America is underway, actual progress is not being made. But the train has left the station and it is hard to imagine that the reform process could lead to nothing or very little.
And yet, since the reform discussion is led — and decided (!!) — by lawyers, there are many voices who urge the profession to not proceed too far and too quickly but ensure that the achievements of the status quo (whatever they may be) are not sacrificed for the sake of reform. What all this really boils down to is lawyers arguing that nobody other than lawyers should be allowed to be reap the benefits of entrepreneurial risk-taking in the practice of law. Their arguments amount to little more than the modern day equivalent of hic sunt leones.
It is up to the regulators — or eventually legislators — to call that bluff and bring about change that will create a better buyer-friendly and buyer-safe market place.
(This blog post was adapted and expanded from Mr. Blase’s Opening Remarks at the Plenary Session of the ABA International Meeting in Montreal on Oct 21, 2015. Mr. Blase would also like to thank Ralph Baxter, LEI Chairman, for his time and insights in developing these opening remarks.)