The Future of Legal Services and Legal Education?

Wednesday, January 4th, 2017 at 01:57

When one starts thinking about the intersection of legal services, the legal profession, and legal education, I honestly don’t think it’s too far removed from the Venn diagram above.

On 13 December my good friend, Julian Webb (and also Paul Maharg), organised a legal services forum at Melbourne Law School to bring together academics, policy makers and practitioners to discuss the challenges of the future of legal services and how we should research them in order to be able to meet them. Richard Moorhead came from London to give a plenary address and I moderated a panel on technology and innovation in the sector. Fortunately, the school videoed the proceedings and you can see the videos here. Happy viewing…

 

Rule of Law and Legal Education: Do They Still Connect?

Monday, January 2nd, 2017 at 09:52

I’ve put a new paper up on SSRN.com on the rule of law and legal education. The introduction reads:

When we connect legal education and the rule of law it has two connotations: to what extent should legal education be protected by the rule of law, and to what extent should the rule of law be taught within legal education. It is not difficult to see how both connotations
could cause problems in certain countries where the rule of law might exist in
a different form. For example, China is becoming a rule of law-based country in
respect of its commercial and intellectual property rights. Yet its record on human
rights and the due prosecution of them is abysmal. The rule of law like most
legal rubrics is slippery and tends to avoid easy definition (May 2014). Jeremy
Waldron captures this when he says “…people’s estimation of the importance of
the Rule of Law sometimes depends on which paradigm of law is being spoken
about (Waldron 2012: 9).” For Aristotle safety was located in customary law and
for Hayek it was the evolutionary development of the Common Law (id; but cf.
May 2012). Tom Bingham’s idea of a thick definition of the rule of law has
appealing since it is elastic and has an anthropological intuition about it
that maintains a connection to community (Bingham 2010). In contrast to Waldron
who would keep the rule of law at a meta-level rather than a substantive one,
Bingham includes specific instances of rule categories such as, notably, the
Universal Declaration of Human Rights in which the right to education is
enshrined (id: 83).

In this chapter my focus is not so much on the theoretical debates surrounding the rule of law
but rather how it is implicated and treated in the developments of modern legal
education and practice. I first analyse the changing legal world for which the
salient period is the post-World War II to the present. We have the rise of the
international and transnational institutions and the emergence of the modern,
organization-based, and increasingly financialised, legal profession that plays
a significant role in globalization. To provide the labour force for the
profession the academy’s role has come to the fore and is now the main gateway
to the legal profession. Even with its duality of roles as reproducer and
gatekeeper, the academy is now more remote from the profession. This in part
reflects a desire on the part of the legal academy to be a more academic and
intellectual member of the academy than hitherto (Cownie 2004). The rise of
subspecialties within law marks this shift as does the increased number of law
professors with PhDs, often in other disciplines. The increased tensions
between the academy and the profession have fostered argument over both the
content and structure of the law degree. One might almost ask if the issue is
not so much the rule of law but the rule of lawyers. Finally I examine some of
the challenges for legal education—such as the rise of legal technology—that
will have enormous effects on legal practice and the rule of law, especially
where it abuts access to justice.

My approach to the topic is essentially sociological, which means I ask under what conditions
would the rule of law be promoted or diminished and by whom? In this respect I
look to the legal profession, courts, and legal academy as key players. By this
I mean they are crucial to the design of the legal system and its
implementation. The relationship of the legal profession to the state or market
can signify to what extent lawyers might be viewed as radical or conservative
in their approach to legality and juridical questions (Rueschemeyer 1973). For
example, Weber (1978) saw the English legal profession as a craft-based
profession with relatively little input from the academy. The development of
the common law therefore depended on the creativity of practitioners who became
used to devising solutions to problems as they arose. In the absence of a legal
code, lawyers innovated in law through an ad hoc process. On the mainland
continent, and in many other countries, the civil code system depended on
commentaries by academics that kept the law in tune with its primary
principles. This resulted in a different but less innovative law making. Thus,
for example, whereas in Germany pfandbriefe
are creatures of statute, in the UK they were created by contract using common
law principles (Flood 2007). The alliance between the state, academy, and legal profession is much stronger in code systems whereas common law jurisdictions are typically associated with
the market and so depend far more on practitioners.

 

Legal Education in England & Wales and Germany: New Paper

Sunday, November 6th, 2016 at 09:33

Anna Mountford-Zimdars, Kings Learning Institute, Kings College London, and I have written a new paper on legal education in England & Wales and Germany focusing on barristers’ education and German advocates. It’s here on SSRN.

Here’s the abstract:

This paper explores the relationship between legal practice and type of university attended and degree course studied for English and German lawyers. For England, some of the analysis is only based on data for barristers. We find that university attended matters a great deal for English barristers if they tend to have graduated from elite universities within the stratified British higher education system. In contrast, the flat German higher education system is also mirrored in the profile of  lawyers were graduates in the top jobs come from a wide range of institutions. For Germany, attainment at university and graduating in law are keys to unlocking elite positions whereas the status of university seems second to none in the British system, trumping having studied law as a first degree.  The paper thus empirically confirms anecdotal
insights that knowledge and skills directly related to law matters more for early career entry in Germany and generic skills and socialization at elite universities matters more for transitioning into elite legal employment in England.  It is unclear from the available data whether the different structures mean that the social make-up of the legal professions differs, but it is clear that different ways of accessing this key profession operate in the two contexts.
 
 

Financing Law Firms: New Law versus Old Law: Good or Bad?

Tuesday, September 20th, 2016 at 13:05
It seems to be the season of law firm/business surveys. We’re hearing a lot about New Law, pushback from clients, less for more and so on. Smith & Williamson, an accounting firm, have surveyed law firms about their future finance decisions.
Law firms are facing increasing competition from other firms. This isn’t surprising as most below the Magic Circle are fungible. And it would be the same in the US too. The choices are maybe to merge or downsize into a boutique. Indeed it is the boutiques that are causing the competitive pressures on mainstream law firms.
One solution is to buy them, rather like Facebook and Google buying smaller but useful companies. Think Facebook and Oculus. The problem for law firms is that they are shy when it comes to external financing. They like to borrow from banks with revolving credit facilities or, worse, via overdraft. (I know this is external but it isn’t perceived in that way by lawyers.)
Aside from personnel, one of the biggest expenditures for law firms is technology, especially if they are trying to commoditise part of their services–e.g. online term sheets. Altman Weil say their survey found the biggest threat for law firms was CCCT (competition, commoditisation, competition [from alternative suppliers], and technology.  Calls for capital contributions from partners and overdrafts are primitive ways of funding the future. The Legal Services Act 2007 gave law firms (or more strictly legal services providers) the opportunity to become Alternative Business Structures so they could attract external investment.
Big law hasn’t really taken advantage of this yet. The most common form of entity is still the limited liability partnership. None of the big firms have incorporated, because they fear external scrutiny and pressures for change. However, Smith & Williamson found around 32% of their respondents (about 50 of the top 100) were prepared to see private equity as a source of funding.
The funding would be used to buy “bolt-on” acquisitions, the boutiques that are the source of frustrating competition for the mainstream firms. I suspect law firms think this type of funding will be easier to control than other kinds. This is speculation but the fact that law firms haven’t yet incorporated or gone public (pace Slater+Gordon) suggests to me that either they don’t know how or don’t want to subject themselves to market disciplines. Given private equity works on a three year timeline to exit, I can’t see them taking a back seat on financial decisions in the law firm. Cost cutting, commoditisation and asset stripping are the usual weapons of private equity, so I don’t see law firms being immune. And of course the private equity investor’s favourite investment technique is debt loading. Law firms are used to being encumbered with debt as that’s what they do normally. PE debt will be fiercer.
So as much as law firms think of themselves as businesses, and they are, in many ways they are still immature in matters of the market. If they don’t start to learn market disciplines and see themselves as something other than chummy clubs, when they go to market [I considered a number of metaphors here from dull to unprintable, so insert your own] it will be a case of, to use Goffman’s phrase, “cooling the mark out“.

 

What Happens When the NSA Gets Hacked?

Thursday, September 1st, 2016 at 03:33

 

My colleague, Adrian McCullagh, and I published a story on Medium.com about the NSA hack by a group called the Shadow Brokers.

Shadow Equations: Where IT Security Fails

Everyone now lives on the internet and security is paramount except we seem so bad at providing it. Businesses and governments receive thousands of cyber-attacks a day from countries like China. In the wake of infiltrations into Austrade and the Australian Defence Department’s networks, the prime minister’s cyber security adviser, has admitted the Australian government is attacked on a daily basis. It was even thought the failure of the Australian online census was due to a denial of service cyber-attack, which helped foment nationwide privacy scares. The story we tell here indicates that we are at a tipping point in cybersecurity.Recently a hacker group known as the ‘Shadow Brokers’ published on a particular open web site a sample of source code of particular malware (MALicious softWARE) claiming that the malware had been downloaded from an organisation known as ‘Equation Group’ (NSA)……