Paul L. Caron

Wednesday, June 20, 2018

Allard: The Future Of The Legal Profession

Nick Allard (Departing Dean, Brooklyn), Remarks At the St. Petersburg International Legal Forum (SPILF VII) on The Future of the Legal Profession

Prime Minister Medvedev, Justice Minister Konovalov, distinguished guests of the St. Petersburg international legal forum, it is an honor to be invited to participate again, for the sixth time, in the St. Petersburg international legal forum which is a unique global, forward- looking collaborative initiative promoting better understanding of the future of law. If I were forced to use only one word to describe the future changes of the legal profession, I would choose the word “inevitable.” The legal profession and legal educators—always slow and even resistant to adaptation—must evolve with the times. Standing still, clinging to the “business as usual” status quo is not an option.

We all understand the transformational changes disrupting and overhauling every aspect of our lives, everywhere on the planet. Law is no exception. Irresistible forces with which the profession must reckon are: (1) new technology, (2) globalism in an interconnected, multinational, multicultural, multilingual digital world, and (3) the economics of an ever more consumer-centric legal market. That is, a legal market that demands more for less, as well as expecting greater efficiency in delivering legal services, and delivering them when and how clients want legal work.

It sounds paradoxical, but, legal change is nothing new. Change has been happening, albeit slowly, throughout history. In 1816, late in his life, America’s third president, Thomas Jefferson, who was a great lawyer, wrote:

“[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, as new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as to require a civilized society to remain ever under the regime of their barbarous ancestors.”

Now legal change happens faster than ever and will continue at accelerating speed. This is the “new normal” for the legal profession.

For example, technology and automation will change, streamline and even eliminate some of the things that lawyers used to be paid to do. Clients will not pay high legal fees for work that can be automated, commoditized, and that does not need to be done by a person with a law degree and professional law license. No wonder that a major topic of debate at the seventh forum is whether robots will replace lawyers. I am optimistic. Look on the bright side: it should be good news for lawyers, young and old, that their jobs will involve less proofreading, citation checking, simple researching, and basic document organizational work. Let the computers and robots do the drudge work.

But, lawyers will always need to perform what I call “the three a’s.” That is, in the future, lawyers’ work will continue and even increasingly involve: analysis, advice, and advocacy. And, that is worthy work that justifies the time and investment needed to get a legal education.

In 1790 Jefferson also advised his son-in-law to study law because of its many uses. He advised him that it made a person useful to oneself, one’s neighbors, and the public.

Today, in 2018, anyone thinking about how their future life's work might be worthwhile, satisfying, and make a positive difference would do well to heed Jefferson’s words and consider how studying law can advance that ambition for a remarkably broad spectrum of people—and to a range of purposes unimaginable even to America’s third president who was a true genius.

The critical importance and pervasive relevance of law to all fields and endeavors, and across all borders, is greater now than at any time in history. Law will play a central, determining role in the complex challenges, risks, and enormous opportunities of our time arising in government, politics, business, finance, medicine, media, science and technology, international relations, human rights, creative and performing arts, sports, all forms of popular culture, and, indeed, in every evolving aspect of our lives.

The law must deal with an entire new frontier of innovations, including driverless and pilotless vehicles, civilian and corporate space travel, extraterrestrial mining operations, fintech, blockchain, bioengineering breakthroughs, and—my worst science fiction nightmare—the paperless office.

Therefore, it follows that an individual with talent, passion, and a capacity for hard work should consider a career in law and take full advantage of the kaleidoscope of jobs emerging in the new world of law. Demand will grow for lawyers who are agile thinkers and innovators with diverse areas of expertise, who have a deep understanding of both the law and the substantive disciplines that are shaping the 21st century.

One constant will remain, and that is the significance of hard work. As one of Brooklyn Law School’s alumni, Larry Silverstein, a giant in the field of real estate, noted: “throughout my entire career I have worked hard and been lucky. I find that the harder I work, the luckier I am.”

I will highlight, very briefly, some of the leading challenges of educating tomorrow’s lawyers around the world for a multilingual, multicultural, multinational law market in which very few legal issues are completely local any more.

The forces of new technology, disruptive business models, and globalism causing tectonic shifts that are shaking the foundations of law practice in the 21st century also offer an opportunity for law schools to innovatively teach essential communication skills. Even so, there are many challenging pedagogical, professional, and ethical issues that need to be considered carefully by all lawyers. These include: the changing language skills and technical prowess of millennial digital natives; and the tension between, on one hand, the expectations of efficiency and immediate response to legal questions in a 24/7 interactive world, and, on the other hand, the fundamentals of professionalism. I am eager to hear and learn from others about best professional practices for engaging in the new cyber world of law, and, I suspect others would also welcome more conversation on the topic. The profession needs to develop and promote useful guidance for lawyers, new and old, their employers, and clients. In my private practice experience, I have seen increasing pressure, especially on young attorneys, to react and respond quickly to inquiries of all kinds.

While lawyers cannot entirely avoid engaging and communicating with clients in the time frame type of media and format in which clients themselves conduct business, communicate, and expect answers, allowing time for research, for reflection, and for drawing upon the experience, wisdom, and judgment of others is essential to our role as lawyers, and to providing the full benefits of a lawyer's analysis, advice, and advocacy. How to navigate between the competing interests of timeliness and efficiency, versus thoroughness and effectiveness, while first doing no harm, is quite a challenge.

The entire topic of how a lawyer should communicate well and responsibly digitally deserves attention in legal writing and continuing legal education programs. This is even more the case because newly minted lawyers are also under pressure to market themselves, and they use blogs and social media to advance their reputation. Without proper protocols and controls, firms can very quickly open a Pandora’s Box of ethical, conflict, client service, and other problems. This can arise from even the most well intended digital marketing. [I do not have to explain how much unnecessary controversy can be created by tweeting.]

Worldwide, more than 205 billion emails are sent and received each day, with the average user receiving 122 business emails each day. That latter statistic is on the low end for many of us. Every day, while emails and other forms of social networking media are, of course, useful vehicles for conveying important information, sharing ideas, and receiving feedback from colleagues, these formats also lend themselves, perhaps too easily, to the overheated screed, unedited ramblings, and the logging of everyday complaints. How many times have any of us hit “send” and regretted it later?

For millennials, many of whom are digital natives who think and process information fundamentally differently from their predecessors, there is often little recognition or concern that, through use of uncensored electronic communication, they are creating a sort of permanent record that will follow them through life. The rule of thumb that you should not put into an email what you would not want published on the front page of a newspaper may sound quaintly old-fashioned to the millennial generation, but, a glance at recent headlines about the findings in litigation discovery and investigations of email hacking should give any of us pause when thinking of the security and privacy of our correspondence.

“Watch your language” is the age-old admonition that all of us in the legal profession need to heed carefully. As the brilliant lawyer, founding father, and second American President, John Adams said 247 years ago, “words, like facts, are stubborn things.”

Latin, Sanskrit, old English, Middle English, Ancient Greek, and Biblical Hebrew are among the world’s dead languages that are still worth studying, even though now they lack any native speakers. In contrast, the language of law, which is the transmission vehicle for our vibrant living society’s rules, values, and ethics must continue to change or lose its relevance for the people it is meant to serve. Ideally, the language of law is dynamic and constantly evolving.

However, the language of law and how we as lawyers use it is not keeping up adequately with our dramatically changing world. We need to understand, and then address, the instances where our use of language does not reflect the nuances, practices, and new concepts of our time. If not, lawyers everywhere will be ill-equipped to effectively perform our traditional roles as architects of economic opportunity, growth and stability, champions of equal justice, and defenders of liberty and peaceful resolution of disputes. It is our language that is central to the clarity of our mutual societal understandings to building bridges to consensus, and it is essential to governing.

We live in a time when the changing world needs more, not fewer, good lawyers, trained to understand the global, digital, diverse, and millennial realities necessary to solve controversies and forge agreements. We need to start a hard-headed, open-eyed look at how best to attract talented people to our profession, and how to best operate as lawyers in this new world. Among our priorities, we should focus more on the language of law in a digital age.

Predictions about the future of legal education: 20 years from now in 2038:

  • There will be many more lawyers in the world, performing more interesting work, making more money, representing many new kinds of clients, including robots.
  • Law schools from all countries will compete with each other for students in a global market of legal education. For example, Brooklyn law school will not be competing with just American schools for American students, but with law schools all over the world, for U.S. students and students from everywhere.
  • Technology will globalize, blur borders, and turn legal education inside out. Law school facilities will be completely reimagined, and learning spaces will be engineered to enable teaching with virtual reality; artificial intelligence; and wireless, portable, networked communications, as well as making learning from remote scholars and experts at a distance regularly possible.
  • The current licensing tests and protectionist barriers to entry that stymie innovation, impede broad access to the profession of talented people, and artificially fragment the profession into local fiefdoms will be replaced by uniform trans-border credentialing and client generated reputational and quality reviews of performance.
  • Billing for legal professional services that cannot be commoditized or automated by the hour at hourly rates will become a thing of the past.
  • A new race of beings who are, to varying degrees, part human and part robot will emerge, grow, and prosper. You may say they are cyborgs or androids, but, I call them, simply, “humbots”. Or, in Russian “humbotskys”. The humbots will not have to look for misplaced video remote controllers or lost iPhone’s because such devices will be miniaturized and imbedded in their bodies. The humbots will live 150 – 175 years because of medical advances and use of a wide array of artificial replacement parts, such as bones, blood vessels, valves, organs, and, perhaps, even extra memory capacity. The humbots will demand and receive civil rights, thanks to human lawyers.

For those who do decide to make the best use of their education’s and career experience and study law, they will embark on their legal studies at a rare, pivotal moment in history. Lawyers will maintain and advance the rule of law that is critical to a civil society. They will promote commerce, economic growth, the well-being of the planet, and spur the ceaseless, difficult pursuit of justice, freedom, and peace. The forces that divide people around the world are injustice, poverty, ignorance, hopelessness, and fear. These are problems aspiring lawyers can, and will, be ready to do something about. Not a bad day at the office of tomorrow.

Brooklyn Daily Eagle, Outgoing Dean Nick Allard Brought Brooklyn Law School Into 21st century:

In his compelling, satirical bestseller “Purely Academic,” 20th century educator Stringfellow Barr noted something like this: “Some university presidents are ornamented by the university, others ornament the university.”

It would be needlessly dismissive to label outgoing Brooklyn Law School (BLS) Dean Nick Allard — a brilliant lawyer and dedicated educator — as a man who has merely ornamented our beloved BLS during the past six years. But the Barr semi-quote does serve as a rough guide to distinguish ordinary educators from the extraordinary.

As he prepares to step down at the end of June, Allard is viewed by this writer and many, many others as a gifted leader whose singular set of legal and communication skills came to the hallowed hall of legal learning on Joralemon Street at just the right time.

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Perhaps, but there are many of us who think we already have too many lawyers. The US has 396 per capita. German has 191. Maybe if we had fewer lawyers, we would have fewer lawsuits over things like the height of handicapped signs.

Posted by: Dale Spradling | Jun 21, 2018 6:49:10 AM