Friday, December 19, 2014

Relevance of Professionalism in a Post-Legal Services Act World



(thanks to wallyconger.com

I've always admired "Duke" (or Hunter S Thompson as he's known in the mundane world). For anyone who could consume the amount of drugs he did and yet write as brilliantly as he could must be professional.

I have written a post for the legal profession section of Jotwell on Nick Robinson's paper, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism (Harvard Law School Program Legal Profession Research Paper No. 2014-20) available at SSRN.

He raises some serious questions during his comparison of non-lawyer ownership in three countries: UK, Australia, and the US. I've tried to give this a sociological gloss in my review. It's a good paper and should be read widely.



Share/Bookmark

Thursday, December 04, 2014

The Sociology of the Professions: Lawyers, Doctors and Others...redux


(thanks to kardsunlimited)

Years ago, as a naive graduate student at Warwick, I was invited to a conference on lawyers, doctors and others at Oxford. Philip Lewis organised it. What I loved about the conference was that all my heroes in the sociology of the professions and lawyers were there--Eliot Freidson, Terry Johnson, Marc Galanter, Dietrich Rueschemeyer, and Maureen Cain, plus more. These were the people whose work I was reading and using to guide my own research.

The resulting book was published in 1983 and became an essential text for anybody researching in the field of professions. It still is an essential text, losing none of its force and acuity. Unfortunately the book went out of print.

But I'm glad to say that The Sociology of Professions: Lawyers, Doctors and Others, edited by Robert Dingwall and Philip Lewis has been reissued by Quid Pro Books. The publisher has commissioned a new foreword to this edition by Sida Liu of the University of Wisconsin-Madison.

Sida Liu writes:
“it is a rare effort to fully compare the two classic cases of doctors and lawyers in the professions literature. The contributors of the book include a number of prominent authors on the professions in Britain and the United States. Until today, it remains a vitally important volume for scholars and students interested in various aspects of professional life...Looking back one must be struck by the extent to which theorists of professions and empirical researchers on doctors and lawyers from both the UK and US fully engage with one another throughout the book.” 
I'm glad to see this book back. It has so much to tell us. I was thinking about it as I addressed a graduating class of law students today at UCD. It would have been great to have been able to give each of them a copy.



Share/Bookmark

Wednesday, November 19, 2014

Dress Casual....But for Lawyers?


I was asked to speak at a roundtable on lawyers and careers at StudentSlingshot. The event was arranged by the indefatigable Patrick Guiney of UCD Smurfit Business School. It brought students from all around Ireland to Dublin Castle to meet and talk with entrepreneurs, techies, business people and, of course, lawyers.

The invitation said clearly "Dress casual". So guess who were the only people wearing business suits? Yes, the lawyers. Both men and women.

Given that there were many tech people at the StudentSlingshot--after all both Google and Facebook have their European headquarters here--I thought it would be useful for the students to know something about the influence of technology in law and the role played by legal tech startups. (By the way I wasn't wearing a suit.) During my talk I said something about the use of boilerplate documents by law firms (implicitly referring to Gulati's work on pari passu).

A managing partner of a sizeable Dublin law firm, sitting next to me, exploded. They never used such things and it was tantamount to heresy to suggest otherwise. I referred to research on this saying that bespoke legal work is very expensive and not all clients need it. She refused to accept this.

A barrister then talked about becoming a barrister in Dublin. I was reminded of the UK situation years ago. He said it was normal for an aspiring barrister to wait years before earning any money, let alone a living wage.

I have been travelling in a time machine here and I can begin to understand why the Troika demanded changes to the profession and its regulation. It creates too many barriers. I hope the legal services reformation bill passes into law soon. The legal profession needs to come into the 21st century.

The evening was great fun though.



Share/Bookmark

Monday, October 27, 2014

What is a lawyer?

(Thanks to Dilbert.com)

It's a hoary old question, tired and probably pointless today. Yet Jonathan Goldsmith has asked it again as he works the room at the International Bar Association's meetings in Tokyo. He tries to answer his question using what we call the "trait" theory of professions. Do you pass exams? Do you have ethical codes? Is the work exclusively yours?

The result is of course equivalent to how long is that string? As long or as short as you'd like. This type of approach doesn't get you anywhere.

What is particularly noticeable to anyone who studies lawyers, legal professions and professions in general is Goldsmith's singular lack mention of the types of conditions under which lawyers and professionals work. The organisation whether it be law firm or hospital is now crucial to understanding the nature of professional life and work.

Goldsmith talks about "the lawyer" in the abstract as a myth almost rather than someone engaged in expert labour within an organisational setting. Even that most singular of legal professions, the barrister, is really a creature of the organisation.

The Lawyer today published a report on the UK top 200 law firms with a special section on the top ten chambers. They are listed by chambers earnings and revenue per barristers within each chambers, not by single barristers.

Being a lawyer is another occupation like most. Goldsmith's thinking is indicative of a desire for a "golden age" of lawyering, which probably never existed--only in misty dreams. He alludes to but tries to avoid the idea that lawyers are no longer exclusive.

Machines, paralegals, technicians, accountants, consultants even are all engaged in the "practice" of law these days. They may not call themselves lawyers but they do law. The new legal services markets now emerging are signs that the distinctiveness of the lawyer is being eroded.

It might mean that lawyers' skills are redundant. I think this unlikely. Or it could mean that lawyers' skills are inadequate to the demands of today's business and legal markets. If they are inadequate then others invade your turf and take your work. So it's up to the profession(s) and the academy to (re)produce lawyers/professionals fit for the modern age. And don't worry about definitions. Hardly anyone cares.

(Thanks to Dilbert.com)
And on that last point, Law Without Walls is gearing up for its new session next January.



Share/Bookmark

Tuesday, October 21, 2014

Brains, Music and Life...


(For anyone who has trouble playing the above, just click on this link)

A good friend of mine, Jon Harman, made this video a year ago. I love it. I was reminded of it after reading about President Obama's new BRAIN Initiative.

Share/Bookmark

Friday, September 26, 2014

Making Sense of Universities' Disciplines

ucd-igu


This is my new academic home. But this isn't a post about it but rather what we do in universities. It is the concatenation of several events over the past few weeks. They are my immersion into a new law school, a conversation with a director of a public affairs think tank, and reading some articles about the role of university disciplines. And finally, visiting an art exhibition held in the science department at UCD.
I have always been a hybrid. I'm trained in both law and sociology and and I am happy to straddle the boundary between them. This doesn't always fit in with the ways universities like to organise themselves. That is done according to disciplines or subjects so we can have schools and departments. And, when, as in the UK, one has reviews like the Research Excellence Framework (REF), disciplinary boundaries become sharp indeed. Funds, PhD students, research fellowships are jealously guarded and ring fenced.
But is this the best way for us to educate and to do research? Administrative convenience is no reason for continuing this state of affairs. It is by breaking boundaries we discover new ideas and ways of formulating them. Law is a good example of this. For years law has followed a settled path of teaching "core" subjects. It has become habituated to it. It exists in its own bubble. Yet from all around are voices talking about commodification of law, the globalisation of law, and law as an offshoot of behavioural economics, for example. None of the core courses take account of these.
Just recently there has been a mini-revolution in the teaching of university economics. Students have clamoured for a more realistic type of economics, one that recognises its failure in the recession. Oxford and many other institutions are now putting forward a new curriculum. It isn't exactly May 1968 all over again, but there has been change. Unfortunately, law has not been so visited. Even the Legal Education and Training Review in the UK seemed empty of student contributions.
Terry Eagleton wrote that he was worried that with the commercialisation of higher education the humanities could suffer, even be eradicated from the university, which would result in their death. He's right. If we take the commercial route--let's have all our law graduates "practice ready"--we will impoverish our students' education. However, I'm not sure that we do much better right now. In Europe, as opposed to the US, law is posed as a liberal education. Yet much of what students learn is technocratic and rule-based. I have difficulty in characterising this as liberal education.
But with our disciplinary boundaries, it's difficult to achieve a more cohesive and blended education for students. Jonathan Wolff argues for scholarship that is more confusing and more exciting, which can be done by blurring boundaries. Taking law as my case (and forgetting Eagleton's comment "real men study law"), we can see all sorts of interesting things happening. One that appeals very much to me is the input of design into law. Margaret Hagan's work in the use of design to improve accessibility to law by users but why not students too? (See this wonderful page on beauty and law.) I will go further. I'm involved in Law Without Walls and one of our best student projects was one that Margaret was involved in called Traffick Junction. Go look. It's inspiring.
If we want to give our students a truly liberal law education then we must incorporate other subjects and approaches. We will enrich our cognitive capacities, expand our thought processes, and make learning (and research) more enjoyable and potentially more useful for society. It is by embracing this interdisciplinarity that we become imaginative and creative. Which leads me to the conversation with the think tank director. He talked of how he had to deal with disciplines by stealth because empires were at stake. It would take time, but one way of getting there was by what he called the "co-production of knowledge". By crossing boundaries, by working with students, by using social media, we take knowledge out of the silo and place it in the community where it belongs.
I hope we will achieve some of this here.

Share/Bookmark

Wednesday, August 20, 2014

Goodbye London, Hello Dublin....



From September 2014 I'm taking up a new position at the UCD Sutherland School of Law as the McCann FitzGerald Professor of International Law and Business. I've been an external examiner at UCD for the past three years and have got to know and like the people there.

The position is everything I could imagine focussing on globalization, lawyers, law firms, international business, all with a sociological twist. I will be running a joint MSc in international law and business with the UCD School of Business. UCD will be joining Law Without Walls as well this year.

And, of course, Ireland is about to introduce its new legal services regulatory structure which I can't miss. (For more on this see Maeve Hosier's new book, The Regulation of the Legal Profession in Ireland, Quid Pro Books).

UCD has opened a new law building this year which is beautiful and is one of the best I've seen.


It reminds me of my home in London with its open spaces and great use of glass. It's a convivial space.


I won't be severing all my ties with London (pace Dr Johnson). University College London has made me an Honorary Professor of Law. And I shall be a Visiting Professor of Law and Sociology at the University of Westminster. I will also continue to be a member of the Research Strategy Group at the Legal Services Board.

In a way, it's a return to my roots.

PS. The gym at UCD has kettlebells!



Share/Bookmark

Wednesday, July 16, 2014

Are Machines Ethical? at ILEC VI in London



I gave my paper on "Are Machines Ethical?" which was based on this slide. It's a work in development which will ultimately result in a paper.

Paul Maharg of Australian National University blogged on the session that included my paper. He's taken the topic in an interesting direction, even to the extent of quoting from his friend's, Peter McCarey, poem. I'll let you read it at his post here.



Share/Bookmark

Monday, June 02, 2014

Out of the Recession – But not out of the Woods



(thanks to cepro.com)

Today's post is a guest post by Catherine Gannon, managing partner at the niche law firm of Gannons. I met Catherine after writing my post on micro-law. Her firm is a good example of what I meant.

------------------------------------------

With the UK economy now recovering, can law firms expect to see a return to the pre-2008 good times, when the money rolled in and all that firms felt they needed to do to succeed was recruit more highly paid lawyers, upon the assumption that the work would follow?  In short, no.

The legal services market has changed out of all recognition into a much harder, more competitive environment.

There are three main reasons for this:

1. The economic slowdown itself;
2. More demanding, better informed clients; and
3. Commoditisation of legal services.

The economic slowdown necessarily saw a reduction in demand for legal services, with clients becoming much more price sensitive. Accordingly, firms have gone bust, merged and/or made redundancies, having to cut out the “fat middle” of expensively paid fee earners, who could do the work but not bring in the business.

Even with an upturn in demand things aren’t going to go back to where they were before. Corporate clients’ procurement procedures are much more developed and aggressive and are going to remain that way. Lawyers are regarded as far from elite and are seen as an expensive overhead if they cannot demonstrate real value.

In the round, in respect of both corporate and individual clients, new technology means that the market is much more transparent and information that lawyers could otherwise charge for is much more easily available. Clients are in a stronger negotiation position and have higher expectations as to what their money should buy them.

However, perhaps the biggest factor that has increased competition and driven down prices and will continue to do so is the deregulation of the legal services sector (as driven by the Legal Service Act 2007) and commoditisation of legal services.

Law firms are being exposed to competition from commercial business, that treat legal services as a product like any other. Any high volume process driven services can be provided by relatively unskilled labour, wherever its cheapest to hire it, and technology is making it increasingly straightforward  to provide standardized (low cost) legal products into parts of the legal sector, including the corporate and commercial market, which had perhaps until recently been considered by practitioners as being immune from “Tesco Law”.

How to survive (and prosper)?

Lawyers have to adopt a different approach to how they work, shaking off the conservatism of the past and adopting a more entrepreneurial attitude focused on meeting clients expectation.

Smaller firms that can’t compete on volume/cost need to provide a niche service and all lawyers have to provide a “value added” service. The traditional role of providing neutral advice on the law has to give way to lawyers acting more as problem solving consultants, with better and broader commercial knowledge and understanding of the world their clients operate in. Academic excellence has to be combined with a genuine business focus which is an area lawyers struggle with as their background and training typically lends itself to detailed analysis rather than the “quick and dirty” approach often taken in business. Lawyers on a personal level feel more comfortable if they have advised on all bases but these days the clients are not prepared to pay for lawyers to feel comfortable.

Lawyers have to be excellent communicators, being able to provide their services through a full range of media, whenever and wherever the client needs it, taking full advantage of social media to both develop business and maintain client contact. Clients expect to be relieved of their problems and kept fully kept informed. Additional expense can only be justified by excellent service quality on demand to suit the client rather than to suit the solicitor.  

In many ways lawyers are now operating like hairdressers in that they can be chopped and changed at the drop of the hat with the exception being hairdressers do not carry such large overheads in terms of insurance and compliance.

Absolute clarity on fees and a willingness to provide meet clients requirements for services to be delivered on a fixed cost basis is the way charging has to go, rather than this being resisted. This is a difficult challenge as in many cases when a matter starts there is little visibility on the work involved yet clients do not understand, or rather, will not accept a fudge answer. The outcome is the margins for law firms are reduced and one of the reasons is these days considerable work goes into the fee estimation process before terms are agreed and clients use the fee estimation to shop around. There is always someone who can under cut to win the business.

The business structures that lawyers adopt need to be flexible and allow for the involvement of other professionals with disparate and valuable expertise.

In a nutshell, lawyers need to focus on recognizing client expectation and finding new and effective ways of meeting them.

Innovation and entrepreneurialism will bring the rewards. With change come winners and losers and there is scope to be a winner.

Catherine Gannon / cg@gannons.co.uk / Telephone 0207 438 1062/ www.gannons.co.uk




Share/Bookmark

Thursday, May 08, 2014

ReInvent Law London is Coming Soon


(Thanks to Margaret Hagan)


For some the Chelsea Flower Show is the start of the London Season, while others know it is when the ReInvent Law London show rolls into town. My colleague, Lisa Webley, has issued an invitation to the next ReInvent Law London.

This year Westminster Law School is hosting Reinventlaw London here in the School.  The event brings together legal innovators, legal technology specialists and legal service providers and regulators to showcase new methods of delivery of legal services including virtual law, the use of big data and predictive outcomes software, legal start-ups including alternative business structures and much, much more.  Lexis Nexis are sponsoring the event and it will be live streamed around the world. Last year, as a result of contacts made during the event, we managed to obtain 20 paid work placements for our students with one legal start-up company, we hope to better that record this year.

Lucy Tagg, John Flood and I would love for you to join us at the event.  Places are limited  and all attendees including any of our staff and students will need to register for a free ticket here (http://reinventlawlondon.com/ ) Tickets are going very quickly, so if you would like to attend on 20th June 12.30-6.30 then please do sign up soon.

Further, if you have students interested in learning more about legal innovation and the challenges and opportunities introduced by the Legal Services Act 2007 then please direct them to our 21st Century Law Practice summer school programme which runs from June 8th-23rd in conjunction with Michigan State University: http://www.westminster.ac.uk/about-us/faculties/law/courses/summer-school we still have a few places available.

I hope that you can join us and help to make Reinventlaw London 2014 a real success.




Share/Bookmark

Saturday, April 19, 2014

Experimental Legal Education and Law Without Walls


(thanks to wikipedia for this)

"Success of law schools depends on rate of experimentation", said George Kembel, co-founder of Stanford D School. With the dire state of legal education in the US right now there is an awful imminence to that prediction. Add to the mix that legal education is undergoing all sorts of changes around the world and we have a situation about which it is impossible to be complacent.

I have just returned from Miami where we celebrated the fourth ConPosium of Law Without Walls. The growth in LWOW is huge--in 4 years we've gone from 6 law schools to 26 law and business schools around the world, in every continent. Yet this year is special because we experimented with a new programme called LWOWX. LWOWX existed in virtual reality only. If our pilot works, LWOWX will be a way of making LWOW accessible to a greater community.

What is special about LWOW and LWOWX is that students get to experiment in ways they won't find anywhere in law school. Students have to mix law, business, finance, technology and design in creative ways that provide answers to problems. Of course LWOW is more than that. Students are placed in multicultural teams that span 19 time zones with mentors who are busy and all over the place. Now coordinate your meetings, work out which language and assign different bits of the tasks. Difficult? You bet. All you've got is four months to do it.

The way it works is that the students are given broad topics. Here are some examples:
  • The Death of the Cover Letter: Rethinking How to Find a Job and Build a Career
  • Cyber Justice: Using Technology to Provide Legal Services to Underserved Around the Globe
  • International Arbitration: What’s Under the Invisibility Cloak? 
  • Women in the Law: Is the Glass Ceiling Cracked, Smashed, or Unbreakable? 
Within these topics students had to design projects to solve a particular problem. The women in the law team developed a smartphone app for female lawyers to create an online community where their problems and difficulties could be aired and discussed. (Click link to see presentation.) The death of the cover letter group created
"JD Handshake -- A website for law students looking for jobs, and for employers seeking to hire law school students and graduates that allows employers to get to know candidates better than they can via the traditional resume and cover letter and interview process."
One of the key points about these projects is that they must have a business case behind them. This doesn't mean they have to be for profit ventures, there are plenty of not for profit projects. Either way they have to be feasible and sustainable.

Let me give two examples from this year. "Nirubi" is the project that won the LWOWX competition this year. It is based on providing help for women in the Sri Lanka civil war who feel they have no means of expressing their voice and feelings and so are powerless. Nirubi is designed to collect voices and to work with NGOs.

"Judgment Pay" was a website designed to use crowdsourcing to help poor people collect their judgment debts--that bit of the legal process we tend to forget, actually getting hold of your damages from the defendant.

Just Innovate tweeted:

Just Innovate @Just_Innovate
Team Judgment Pay: Business Need? [tick], Business Model? [tick], Competitive Advantage? [tick].... Judges impressed so far at
Judgment Pay won this year's ConPosium. And by the way the ConPosium tweets under the hashtag #lwow2014 were "storified" by Robert Richards at storify.com with lots of photographs of the teams and judges.

There will be many ways that LWOW will grow and extend, not just in school numbers but in features and roles. What is clear to all of us who attended the ConPosium is that for law schools to retain meaning and relevance in modern society they must go beyond their traditional remits. We can no longer rely on the conventional wisdom of legal education nor can we continue to mystify our students with the process.

I imagine because of our reliance on precedent we look to the past while we mildly attempt to predict the future. LWOW shows us how to be radical and fulfilling. It is a way of introducing experimentation and giving students (and faculty) good reasons for showing that legal education is worthwhile, fruitful and creative. We can start to see law students and lawyers as designers and innovators in a legal services market that is moving forward despite what we do in law schools.

It's worth remembering that within the eight regulatory objectives of the Legal Services Act 2007 are improving access to justice, improving the public understanding of law, and promoting competition within the provision of legal services. LWOW is showing us a way of achieving these objectives.

I return to Kembel's words: "Success of law schools depends on rate of experimentation". Yes.



Share/Bookmark

Monday, March 31, 2014

Are Machines Ethical?

(thanks to Rockwell Center)

In an episode of Jonathan Creek (don't bother to find it, it's not good) a woman spilled her mother's ashes on the floor. She went to get a vacuum cleaner from another house but on her return she found the ashes had been stolen. Of course, they hadn't. Her mother had a robot vacuum machine that came out at intervals and sucked up the ashes. And no, you can't ask if this machine was ethical because it wouldn't make sense.

There have been a number of articles recently about machine-based activities in the legal sphere--document assembly, e-discovery and case analysis. This follows from things like Google's driverless car which by 2012 had achieved 300,000 accident-free miles. The use of High Frequency Trading in stock trading (see Michael Lewis, Flash Boys: A Wall Street Revolt). And machine-controlled laser surgery for eye correction. It's clear this is a growing trend, possibly exponential.

Despite whether or not we are approaching the point of singularity (arguments both ways), huge resources are being put into the mechanisation of law. In part it is because machines, robots, algorithms can do repetitive tasks more efficiently than humans, and also because machines tend to be cheaper than humans. From a Marxist perspective it makes sense to move to machines from labour. The returns to capital are much greater.

To approach my question in the title, ethics are concerned with good, proper behaviour that accords with standards and principles that a profession abides by. They are also concerned with things that go wrong: mistakes, malfeasance, mischief.

Paul Virilio, the French philosopher, articulated the essential paradox of technology--that to invent something is to invent its negative. Invent ships and you invent shipwrecks, invent railways and you create derailment, and create the car and you invent the pile-up. Every advance in technology and machines creates its negative form. It is never a matter of if but only when. Modern society operates so quickly that the vital variable is speed.

Glitches in software and algorithms occur and have worldwide effects--for example, the collapse of the commodities and stock markets in 1987. Program trading went out of control resulting in Black Monday. Even allowing for unintended consequences, we have to build in rules for machines to decide what actions to take when faced with catastrophic choices.

Tom Chatfield puts the trolley problem at the centre of the issue. A tram runs out of control and the driver sees that he is about to hit five men working on the track. However, he can turn onto a siding but in doing so he will kill a single man. Without delving into the deep void of the trolley problem, and its variants (the fat man), I suggest we need to start thinking about this in the legal sphere as machines and algorithms become more common, especially in the face of legal aid cuts and the like. (For further information on the trolley problem et al go to Experimental Philosophy.)

Given that automation is rising, given that computer-based legal services are increasing, how are we going to program machines for errors? Ultimately who will be responsible for those errors? Chatfield refers to two modes: automatic and manual. Humans are capable of both. We can adjust our behaviours to the moment, almost automatically, but we are also capable of thinking out the longer term consequences of our actions in manual mode. We bring heads and hearts together.

Algorithms don't do that. They are usually designed to maximise the effects of certain conditions. If I'm in a driverless car that by some accident is about to plough into a group of people, it could decide that veering off and killing me is the preferable outcome. I would disagree, of course.

Some might argue that the algorithm's decision is ethically superior to my wants. But it is not thinking that way; it has a utilitarian viewpoint, to my cost. In a way the algorithm is superior because it isn't letting sentimentality intrude. Some artificial intelligence experts have argued that there is nothing wrong here as long as the programming is transparent and we can all understand what the consequences will be. We take our risk here.

What is more likely, however, is that we will outsource more activities to machines believing we've overcome the difficulties without actually investigating this. Chatfield says
As agency passes out of the hands of individual human beings, in the name of various efficiencies, the losses outside these boxes don’t simply evaporate into non-existence. If our destiny is a new kind of existential insulation – a world in which machine gatekeepers render certain harms impossible and certain goods automatic – this won’t be because we will have triumphed over history and time, but because we will have delegated engagement to something beyond ourselves.
We know the consequence of this kind of delegation. We see it in the privatisation of prisons, health, and, more dangerously, in security.

As more areas of law come within the sphere of algorithms and machines, we will need to carefully consider the ethical problems that will inevitably arise. Accidents will happen and people's livelihoods, liberty, property might all well be at stake. How easy will it be to correct mistakes in online divorce with children, property, and pensions and the like? Who or what will be culpable? How will errors be discovered? Who will have the authority to declare errors? Or will we subscribe to a utilitarian ethos that it must be for the greater good, so we should just lump it?

We don't have to wait for the point of singularity to start working these out.



Share/Bookmark

Tuesday, March 18, 2014

A Brave New Regulatory World


(thanks to brecorder.com)

[This is an opinion piece published in The Lawyer March 12, 2014]

Can international law firm regulation keep up with the seismic legal market changes? It won’t be easy.

Law is a global practice and yet its regulation is mostly domestic. There are international codes of practice such as those promulgated by the International Bar Association, but they say little about international practice and more about the concerns of the individual lawyer and client. Legal regulators rarely look beyond their own boundaries. New York State imposes its rules on its admitted lawyers wherever they are whereas the English bar tends to relax its rules once the barrister steps outside the UK. With lawyers who do international business, whether transactions or arbitration, the problem of ‘double deontology’ is perpetual.

Consider a lawyer appearing before an international arbitration tribunal. The lawyer has witnesses, so how should the witnesses be prepared? For an American attorney witness preparation is vital and he would be negligent if he didn’t. Witness preparation helps witnesses understand the case and their role in it. For English lawyers preparing witnesses can be tantamount to rehearsing and influencing them so it’s prohibited. The two sets of professional rules oppose each other. What then should happen in an international arbitration? At present there are no rules that decide these issues.

The problem with external regulation is that it is crude, post hoc and slow. When Arthur Andersen’s partner was convicted in the Enron debacle, the entire firm imploded. Later KPMG was on tenterhooks in case it was to suffer ‘death by indictment’. Modern regulation depends on internal firm-wide characteristics of culture and compliance. Big law has the capacity to take on the role of regulating global practice because of its international reach. It is unlikely that a large law firm would let one of its senior partners be caught out in conflicts of interest dilemmas as was Freshfields Bruckhaus Deringer’s Barry O’Brien in the 2004 hostile takeover attempt of Marks & Spencer by Philip Green. We still catch occasional glimpses of this in Clifford Chance’s review of RBS with questions raised over the perception of possible conflicts. And of course there are the car crashes like Dewey & LeBoeuf.

The big law firm is now more international than domestic. Some of the Magic Circle firms have more ‘foreign’ lawyers than ‘English’. We still think of them as London firms but they are as much a London firm as Barclays is a London bank. The key centres for big law firms are, however, still New York and London because their particular laws are heavily used in cross border transactions. Moreover, in relation to capital markets the major financial institutions are based there. This is not to say competition from Asia - Singapore, Shanghai and Hong Kong - isn’t happening. Domestic law remains important but in cross-border transactions the ultimate governing law may still be English or New York.

How then are big law firms creating a new global regulation? It’s happening through a number of channels: education, compliance, and financialisation. Law firms are transaction-producing factories these days. Recent American research has shown that the average sovereign wealth contract takes three and a half minutes to produce because of boilerplating. Law firms have huge banks of firm-specific documentation to call on, which all their lawyers are trained in using. This training never stops. The law firms also contribute their expertise—and capture future work—in the creation of documents used by international organisation such as the International Swaps and Derivatives Association. These enormous knowledge banks are constantly updated and modified.

Alongside document construction is outsourcing by big law firms whether to Belfast or Mumbai. Intellectual property renewals and document reviews, for example, are handled by cheaper lawyers without drawing on expensive law firm lawyer time. The professional support and education and training roles in big firms are crucial to their successful operations, creating and adapting the firm’s knowledge to changing circumstances.

Compliance is essential. All big firms have general counsel who combine the roles of mother hen and mistress. They have to ensure that all lawyers (and support staff) throughout the firm understand the firm’s needs and plans. It is they who must instil a common culture in all offices. Some of them have official compliance reporting duties to regulators. But their prime aim is make sure everyone works to minimise the need to report.

Because of their scale and complexity big firms are complicated creatures to manage especially in partnership form. Financialisation has changed the substance if not the form of partnerships. Executive authority lies with management committees who set targets, monitor performance and agree remuneration. And who may be tasked with removing underperforming partners. Large firms have become quasi-industrial complexes.

Outside the firm there lies unexplored territory. The Legal Services Act in the UK has brought in external investment, non-lawyer ownership and alternative business structures (250 at the last count). It’s still early days for the impact of these to be clearly felt. Law firms are now talking to financiers and private equity about going public or accepting external investment, which will put new pressures on regulation, both domestic and international. In the finance sector new banking regulation is being felt in law firms through regulatory overspill.

New models of legal practice such as Axiom, Radiant Law and Lawyers On Demand are evolving that don’t follow traditional ways. They have the potential to challenge the big firms and appeal to corporate counsel because they’ve abdicated hourly billing.

The most undetermined sector is the development of online legal services that doesn’t rely on locality but cyberspace. Many of the most basic transactions - wills, divorce, leases - are available and we have online deal rooms where international transactions occur. As we approach Kurzweil’s point of singularity and true artificial intelligence becomes possible, how will cyberspace be regulated and what will be regulated? The robot, the software? Will it be any different from high-speed trading algorithms used in financial services? Regulation is about to enter new spheres that we are just beginning to imagine.



Share/Bookmark

Tuesday, March 04, 2014

Transnational Legal Ethics Seminar



Share/Bookmark

Monday, February 17, 2014

The Rise and Rise of Micro-Law

(thanks to endtimeinfo.com)


This post is prompted by the news that three Freshfields partners have quit the firm to form a new arbitration boutique law firm. A London partner along with one from Paris have linked with Jan Paulsson, who used to be a partner. The reason this move is remarkable is that it continues a trend I have noticed since around 2010 when I wrote about the rise of the boutiques.

This came back to me as I was reading Brian Inkster's review of George Beaton's book on NewLaw. (Both are good reads.) Beaton's argument is that the traditional law firm model predicated around Big Law is no longer sustainable. Most of the alternatives, however, are based on technology with intensive outsourcing, the kinds of developments we see with Axiom and Radiant Law. But they aren't the only way of organising the delivery of legal services.

There are many problems with Big Law which I won't reiterate here (read Beaton's book). Maybe one of the difficulties inherent in Big Law is within its name. It's big. Rather like the National Health Service, the largest employer in the UK, large organisations are hard to change. There is resistance from those who like the status quo and there are many barriers to getting the change message to everyone in the organisation. There are often games of Chinese whispers that confuse and set factions against each other. For more see Larry Ribstein's essay on Big Law's death.

A key dilemma with Big Law is that in essence it is a set of interlocking networks that both vie and compete with each other. The result is that fission is common, and fusion is less so. Its main form of remuneration--profits per equity partner--enforces short termism and low thresholds of loyalty. See Sida Liu's critique. Even the moves from traditional partnership to more bureaucratic forms of partnership are failing to solve the problem.

So we have the rise of the boutique or micro law as a way of resolving some the issues. A small group of elite lawyers hive off and start their own firm, usually specialising in one aspect of law practice. The reasons for doing this are easy to identify. Strong among them is a resurgence of collegiality which is now absent from Big Law. Starbuck's essay on Wachtell Lipton showed this to be very important. (For those not convinced read Starbuck here.) Decisions can be made quickly without bureaucratic overload. Conflicts issues are reduced and simplified. And remuneration should be easier to decide--note my conditional here though....

Micro law is a return to the law practices of the 19th century when the "big" City of London law firms held sway throughout the world. With three or so partners but many managing clerks they were involved in policy making, lobbying, litigation and transactions. They helped build the City into the financial global centre it has become.

Yet these 19th century firms were still generalist. The new Micro Law is specialist and targeted on one area such as litigation, international arbitration, white collar crime, crofting law or intellectual property. Because of this it has a different style of practice. Micro law is selective both of client and business.

A preferable analogue may be the Bar. Small groups of lawyers in small offices depending largely on referrals from other lawyers. And this is what Micro Law can do: cases can be referred to it without fear of poaching clients and conflicts conundrums can be outsourced. Most importantly the client will be dealing with the key lawyer not a junior associate being trained at the cost of the client.

The case for the Bar analogue is strong. Litigation is the largest segment of Micro Law showing a demand for skilled dispute resolution (and, query, a rising reliance on third party litigation funding?).

There is no end to lawyers. We will always need lawyers. No society could function without them and no they can't all be killed. Lawyers are bad at organising themselves and have created their own Leviathan which they seem to be unable to slaughter. Nor is technology the answer, although it is tremendously helpful. Lawyers need to get back to doing what they do best. The law?





Share/Bookmark

Monday, February 03, 2014

Russian Oligarchs and Globalized Law Firms....Be Careful Out There.....



Russian oligarchs are popular in the UK, especially London. They buy our football teams, newspapers, and most importantly they use our uber-friendly Commercial Court for their litigation. Barristers' clerks refer to the "Russian premium".

The kick off last year was between Abramovich and Berezosvsky which resulted in a big win for the Chelsea owner and suicide for the loser. More cases are filed for hearing, however.

This is excellent news for the big law firms, but only if you are aware of what your different offices are doing. White & Case have just been conflicted out of a lucrative $2 billion case between Ukranians Pinchuk and Kolomoisky & Bogolyubov. The judgment is here.

It seems White & Case have form here. The parties in the case were investors in metals and ferroalloy companies. David Goldberg, a White & Case partner in London and Moscow, acted for Pinchuk in a dispute against Kolomoisky & Bogolyubov in 2010.

In 2011 one of the companies, Optima, instructed Colin Diamond, a New York partner of White & Case, to act in a corporate restructuring that would result in an American IPO for the company. Diamond ran a conflicts check and discovered Goldberg's activities. Diamond sent his conflict enquiry on a bank holiday weekend and Goldberg didn't remember reading the attached documents. Nevertheless, Goldberg told Diamond the matter had settled and there was no further conflict.

Diamond acted for Optima and during his work White & Case learned much about the company and Kolomoisky & Bogolyubov. He earned over $900,000 in fees on the matter. White & Case worked through to 2013 in this matter.

In 2012 Pinchuk came back to Goldberg to act against Kolomoisky & Bogolyubov again. Goldberg ran no conflict checks or he would have found the restructuring work. When the matter was officially opened a conflict check was ran and the other work became apparent. Goldberg discussed the apparent conflict with White & Case's general counsel who opined there was no conflict. How?

The General Counsel decided there should be ethical screens between Pinchuk's case and the restructuring team. This was monitored by a 30 strong worldwide compliance team. But the claimants weren't told about the screen as they should.

I'm not going into dense detail on this but there ensued proceedings in the London Court of International Arbitration and claims in the US District Court of South Florida. As a result of these Optima's general counsel learned of the case against Kolomoisky & Bogolyubov. He wrote to White & Case about their conflicts and his complaint was dismissed as frivolous.

White & Case eventually withdrew their participation for Pinchuk in the LCIA arbitration but wanted to continue in the Commercial Court case. In all their London, Moscow, New York, Washington DC, and Miami offices had worked on various aspects of the case.

The Commercial Court judge applied the test in Bolkiah v KPMG (1992). In this case KPMG had been the auditors of Brunei Investment Authority during which time they accepted assurances from Prince Jefri about payments out of Brunei. Afterwards KPMG worked for Jefri and learned much about his assets and wealth. When later the Brunei government hired KPMG to investigate payments out of Brunei (which would include to Jefri), KPMG was compelled to create a system of then "Chinese Walls" or ethical screens. The court held that screens needed to be part of the institutional establishment and not created on an ad hoc basis. Here there was too much risk of information leakage.

The Commercial Court followed Bolkiah and said that White & Case owed an unqualified duty to the claimants not to disclose information and the risk of some form disclosure was too great. White & Case's ethical screens were not part of the organisational structure and therefore complete separation had not been achieved.

Pinchuk was mostly excluded from the case and is now left without his lawyers.

What is also of interest is that none of the US Model Rules of Professional Conduct concerning conflicts of interest with past and concurrent clients were considered by the court, at least with respect to the New York lawyers and those of other US White & Case offices. The extent to which these conflicts were waivable is questionable.

Clearly all global law firms are going to have to review their screening and conflicts policies extremely carefully to avoid disasters like this in the future.

Expect an appeal for Russian (and Ukranian) oligarchs love to spend money in the English legal system.






Share/Bookmark

Tuesday, January 28, 2014

Law Without Walls and LWOWX...

See the video on Vimeo 

The last two weekends have been frenetic. Law Without Walls is back in town, now in two forms. To our original form we've added LWOWX.

Here's what LWOWX is
LWOW X is an all-virtual pilot program for 2014. It offers the same components and benefits as the original LawWithoutWalls offering, only it does so completely on-line. It is an attempt to scale and expand our current LawWithoutWalls offering to more students from more places, irrespective of financial situation and school status. Further, it is an attempt to create an all-virtual, synchronous learning experience that applies rhizomatic education to develop a sense of community as robust as that achieved through in-person interaction.
We were frenetic because we had two KickOffs, one for LWOW and one for LWOWX. I've written about LWOW before, here, here and here, so I'll focus on LWOWX.

The point of the KickOff is for all the participants to come together, get to know each other, have fun, learn new skills (networking from Kevin Doolan, self-assessment from Nora Bergman), and begin to function as teams. It's intensive. For two days we started at noon and worked through to 8pm. See our schedule here.

Because LWOWX is virtual and online, we had to learn to cope with tech glitches, outages, freezes and the like. It's surprising how much patience one can learn in situations such as these. Far superior to frustration...

The UCL cohort of LWOWX, which I'm advising along with Anna Donovan, decided to meet at UCL for the virtual KickOff. So although we were in close proximity we attended via our online personas. For the first occasion it was good because we could support each other.

Our participants came from China, Iceland, the US (west and east coasts) and Europe. We ignored time zones.

The brute fact was that we had to learn in real time how to do this. Despite the planning and preparation it works as you do it. By the end there was a real sense of accomplishment and achievement felt by all. We did it; we made it.

And to celebrate that I invite you to click through to Jon Harman's video at the top of the page made to the Wayseer Manifesto single. In a sense we were way seers in this new version of Law Without Walls X.

PS. A special shout out to Eversheds for supporting LWOW and also to Barclays who are supporting two student participants from the University of East London.

Share/Bookmark

Monday, January 27, 2014

CLE Conference 2014--The Value of Legal Education 7-8 February


More Info: ntu.ac.uk/cle2014

Share/Bookmark

Wednesday, January 22, 2014

The Future of Legal Education: Are Legal Apprenticeships the Answer?


(Courtesy of the Guardian)

I've published an article in the Guardian on legal apprenticeships which you can find here.

Short version: I think they're a good thing.



Share/Bookmark

Tuesday, January 14, 2014

The Good, the Bad and the Ugly or Il Buono, il Brutto, il Cattivo

Nice little infographic here looking at various felonious activities.

Legal Extortion
Source: Online-Paralegal-Programs.com
Thanks for the contribution.


Share/Bookmark

Sunday, January 12, 2014

Doctor Who--The War Games Revisited


My colleague, Danny Nicol, the Doctor in the centre, is giving a talk and screening a 1969 episode--The War Games--of Doctor Who.

It's taking place on January 22 between 1400 and 1600 in Little Titchfield Street Room 2.01. All are welcome.

More information is here.

This talk is a precursor to a big symposium on Doctor Who being held in September 2014. Again, more information on this major event is here.

Danny has been interested in the legal and constitutional aspects of Doctor Who for some time now. See his post on the UK Constitutional Blog here. He has also started his own blog on the topic, Politics and Law of Doctor Who.



Share/Bookmark