USC professor Gillian Hadfield is a very smart legal thinker, even if she did choose to work at a school whose athletic teams are named after a brand of condoms. In an essay ruminating on the future of legal practice, which I highly recommend reading in full, she argues that:
I have spoken with dozens of general counsel, entrepreneurs, business leaders and experts in innovation about how well the American legal system is supporting the innovative enterprise powering the global economic transformation under way since the fall of the Berlin Wall and the birth of the Internet. They have been uniformly optimistic about the pace of innovation in their industries — but uniformly despondent about the legal tools available to them to support their efforts to ride the surging waves of the new global economy. One complained about the great “DNA gap” between lawyers and business thinkers. Another bemoaned the need to resort to a patchwork of law firms around the world to manage operations that are “global from day one” in a new economy firm. A third shared his frustration with lawyers who produce reams of paper — erudite analysis memos or long complex contracts — when what is needed, and fast, is targeted business advice or short documents that memorialize key commitments.
Such complaints are now new, of course. Mark McCormack's wonderful book The Terrible Truth About Lawyers made many of the same complaints twenty-odd years ago.
Hadfield argues that what we need to solve the problem is a new approach to the market for legal services:
It’s not that lawyers aren’t smart or committed enough to produce good quality legal services. The problem with the way in which U.S. markets for legal inputs are structured is that they are entirely closed off to the potential quality-improving and cost-reducing innovations that might be produced by people who are not already heavily invested in our existing ways of handling legal problems. Those existing approaches are the problem: too costly, too poorly informed about rapidly changing business and regulatory realities in a global economy, too risk averse, too slow and cumbersome.
So why not let people other than JD-trained, bar-examined lawyers and organizations that aren’t 100 percent lawyer-owned and -financed compete to supply advice about managing legal and regulatory risks, complete required document filings, design documents and organizational policies, negotiate contracts and manage legal disputes? Certainly, there are some things for which only the most experienced and conventionally trained lawyer will do. But there is also a huge landscape of legal work that could be better done by differently trained lawyers, lawyers trained out-of-state, lawyers working in partnerships with nonlawyers, and companies that are owned, managed and financed by business-minded folks, rather than (or in addition to) legally minded folks.
Great idea. Anybody who even halfheartedly believes in markets ought to think that a freer market for legal services, in which non-lawyers can compete, will result in more innovation, lower prices, and more widely available services. Indeed, as Hadfield details, the UK is doing okay with a much more competitive legal market than we have in the USA.
Of course, as someone who benefits massively from the current monopoly law schools have on the production of lawyers who then have a near monopoly only the provision of legal services, I favor adopting her approach the day after I retire. But YMMV. ;-))