Failure of training and competency validation is behind legal's 'crisis'

Failure of training and competency validation is behind legal's 'crisis'

This is the second of a three-part interview with Jordan Furlong, an Ottawa-based attorney and consultant at Edge International. He can be reached through his Law21 site.

The breakneck pace of law firm M&A -- there have been at least 18 mergers in 2016 alone, according to Altman Weil's Merger Line -- is in part due to the power vacuum many law firms now face as their leadership enters retirement. Due to slowing investment in young talent over the last 20 years, a generation gap has emerged where there are few prepared to fill the shoes of the partners long responsible for running their respective businesses. Lateral hiring as an ad hoc form of succession planning has filled that void.

That's the Cliff Notes version, according to Jordan Furlong, of how the legal profession arrived at the "period of crisis" it must now confront.

In part two of this interview, Furlong discusses the prospective roles of law schools in producing practice-ready attorneys prepared to shape the profession's future, and why, in lieu of stronger regulatory oversight, validating the skills of those young lawyers continues to pose a thorny challenge.

Logikcull: Part of the problem, as you explained it, is that firms don’t have the patience or the willingness to develop young new talent. But that talent is underdeveloped in the first place because law schools are struggling to produce practice-ready lawyers.

Jordan Furlong: In fairness to the schools, some of them are making genuine, substantial efforts in that direction. I still think it probably only amounts to maybe 10% of the 200-plus law schools that are out there. But it wouldn’t be fair to say they’re not doing anything.

You also have to cut law schools some slack because most of them have a tremendous number of internal demands and issues with which they have to cope. Ideally we’d like to say, “You should respond only to the practicing bar and, by extension, to the clients your future graduates will be serving.” But in reality, I don’t think it’s as cut and dry as that.

I’ve been calling and urging law schools, along with many other people, to take a serious look at their curriculums and start diversifying what they offer in order to provide a channel for lawyers who are very interested in providing legal services in the private bar to be able to do that as quickly and effectively and as productively as they can. All that being said, it wouldn't be fair to drop this entirely on the law schools. The ultimate responsibility for this has to fall on the practicing bar, and specifically, to the authorities in each jurisdiction.

Somebody has a responsibility to say to society in general: "We have decided that these people are fit to become lawyers and are fit and competent and reliable enough to provide legal services directly to the public."

If you really pushed hard on the standards that are applied and criteria used to issue that kind of assurance, I’m not sure that the general public or, hypothetically, a given legislature, would be at all persuaded. I wrote a piece several months back that talked about how, both in Great Britain and in Canada, the regulatory authorities are developing a set of Initial Professional Competence Standards that essentially say, “You cannot and will not be called to the bar unless you’ve demonstrated these skills and technical abilities.”

There’s nothing like that in the US, and I think that’s on the shoulders, and is a serious responsibility of, the regulatory arm of the legal profession. And again, you can choose whether that’s the state bars, the ABA, the supreme courts -- I don’t know. But somebody should be in a position to stand up and say, “We are taking these steps to ensure a minimum level of competence and technical skill.” Right now, if someone made that challenge and said, “Who’s going to stand up and demonstrate that?”, I’m not sure many hands would be going up in the air.

Logikcull: Do you think the bar itself should be responsible for providing the training ground to obtain competency? Or is there another party out there to potentially step up?

JF: I think that’s definitely a potential growth area. And I have been sort of waiting for someone to step forward and grab that. There are real dangers in delegating to law firms the job of training young lawyers and showing them the ropes. When you decentralize that responsibility, you’re leaving it to the whims of the law firms themselves.


If I’m getting trained at a Wall Street firm, or in a firm in downtown Chicago or LA, I’m going to be trained in the kind of work and the kind of skills that are going to be useful to me in that environment. So if I spend three years on Wall Street, and then I move to Ithaca and open up a solo practice, I’m not sure those three years are going to be very useful training for me. That’s part of the challenge.

From the point of view of the bar, yes, I think it is absolutely their responsibility to ensure (competency). Now, is it their responsibility to create a massive training program either nationally or at the state level to do all this? Maybe that’s not the wisest thing to do. I’ve been saying for a while that it would make a lot of sense for the regulatory authority to say to law schools, “We’re going to mandate you to say that, by the time people are finished with their three years with you, they can do A, B, and C. And if you don’t provide that to our satisfaction, we will de-accredit you.”

That to me would be the swiftest route to the goal, because fundamentally, who’s in a better position to develop a system like that? Is it a bar that has enough issues as it is? Or is it a school which at least has some experience and infrastructure for training and development.

So is there a place for a third-party provider? Absolutely. And it may be the law schools. It may be a professional training institute. A couple years back, it became clear in Ontario, the biggest province in Canada, that the articling (law firm apprenticeship) system is breaking down -- and it appears to be happening in other provinces as well. Something like 15 to 20% of new law graduates can’t find articling positions, and therefore cannot be called to the bar.

Now, that’s a nice problem to have when, with US law grads, the percentage is more like 40 to 50%. What has happened in Ontario is that the law society and the government have coordinated to create an alternative system -- the Law Practice Program (LPP), which is made up of a couple of law schools and provides hands-on training. Australia has something similar, and British Columbia had something similar for a time as well.

That’s essentially saying, “We’re going to find another way to train and accredit and prepare people to provide legal services.” So yeah, there’s room not just for one provider, but for plenty of them -- because there are people out there who want to be a traditional lawyer and hang a shingle and provide various services to small businesses. But there are other people who want to be technicians and coders and hackers, and program the future of the legal marketplace. There need to be programs for both kinds of people.

It’s a specialized, fractured, fissured legal market. It seems sensible to me that we should think about creating an equal type of diversity and options for people to develop their own roots into the market. None of which is to say this would be easy, or inexpensive, or that there wouldn’t be a lot of trials and errors along the way. But it just seems to me apparent that the way we have, up to this point, developed talent in the law, developed people into practicing lawyers, and delivered legal services to the people who pay us for doing that is just not going to work very well in the next 10, 20 or 40 years.


Logikcull: What factors arising from all this turmoil do you think will shape how legal services are delivered in the future?

JF: I think “turmoil” is a really good word for it because this is not going to be a lot of fun, especially for lawyers and for the infrastructure of the bar. It will eventually benefit clients and buyers of legal services, and eventually lawyers themselves as well.

But it’s going to be a rough road to get there. And I actually think the next ten years or so will be critical. It’s a time that demands and cries out for leadership within the organized bar to say, “We are entering a dangerously uncertain transitional period between the legal profession we knew and the one that’s coming.” Lawyers will no longer be the only providers of services in the market. Like it or not, that’s going to be unquestionably the case within 10 years time.  


With that in mind, what are the challenges of the bar? I think the challenge for the bar is not to say, “Let’s try to preserve as many lawyer jobs as we can” or “Let’s ensure that lawyers are protected above all else.” The responsibility of the bar and of the legal profession, and all of the individuals within it, is twofold. First of all, our number one obligation and responsibility is to the rule of law and to the courts -- to which we’ve sworn an oath to be officers. That has to be our number one concern. And we have to make sure that all the inarguably virtuous aspects we have brought to that system over the years -- including our system of legal ethics, our loyalty to clients, and our responsibility to always stand up to what is right and true -- carry through. We can lose a lot of stuff on the journey, but we can’t lose that.

And the second that has to animate us is the interest of the people we serve, not just individually the clients that pay us money and put a roof over our heads, but society in general -- the people who rely on us to uphold the law and to advance the interests of equality and fairness and justice. That sounds very high falutin. But those are the twin priorities that must carry through this turmoil.

Nobody knows what the future legal market will look like and, in a way, I don’t even think it’s that important to know what it looks like. What’s important is to ask ourselves, what matters about lawyers? Why are lawyers so important in society? Why does court system and the rule of law matter? What are the fundamental principles we are supposed to be advancing as a profession?

A crisis period like this is an excellent time to reexamine, rediscover, and reprioritize exactly these kinds of issues.

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