Innovation: A New Key Discipline for Lawyers and Legal Education

Abstract:

Over the past two years, I have interviewed hundreds of in-house and law firm lawyers from around the globe to explore the changing legal marketplace, expectations of clients, and innovation in law. One of my main conclusions is that we are experiencing an Innovation Tournament in Law and almost everyone is playing in it. As I explain in more detail in my book, Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, driven by a combination of technology, socio-economics, and globality, we are witnessing innovation on almost every legal dimension, including how legal services are priced, packaged, sourced, and delivered. Importantly, this innovation is not only coming from legal tech startups and new law companies. Law firms, the Big Four, and corporate legal departments are creating innovations of their own including new services, products, tools, and, importantly, new processes. Even those that aren’t creating innovations are playing in the Innovation Tournament by utilizing the innovations (or exapting them) to become more efficient and deliver better service. Although we are not yet seeing disruption in the law marketplace in the Clayton Christensen sense, all lawyers should care about the Innovation Tournament regardless and here’s why:

Lawyers of all types, from big law to small and mid-size firms, from government to in-house, and even solo lawyers, are being challenged to change the way they work. Clients are asking their lawyers to innovate (and often with others outside their organization or departments). However, lawyers don’t know what their clients are asking for when they ask for innovation or how to do it—or both. The good news is, however, that my interviews and my experience working with over 210 teams of lawyers and their clients on innovation journeys, indicate that what clients are really asking for with “the call to innovate” is a new type and level of collaboration and client service. The evidence suggests that our clients’ call for us to innovate is actually a call for service transformation in disguise. Whether they want an innovation in and of itself or not, our clients want lawyers to hone the mindset, skillset, and behavior of innovators. The problem with this is that many lawyers are ill-equipped to meet these new demands. Some combination of our temperament, training, and professional identity seems to work against us when we try to espouse the DNA of innovators. This is why the new discipline for practicing and aspiring lawyers needs to be innovation.

This chapter was first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World, co-curated by me and Dr. Guenther Dobrauz. It begins by demonstrating that clients’ call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers’ professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator’s DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

Citation:

DeStefano, Michele, Innovation: A New Key Discipline for Lawyers and Legal Education (June 27, 2019). New Suits: Appetite for Disruption in the Legal World co-curated by Michele DeStefano and Dr. Guenther Dobrauz (Stämpfli Verlag 2019). Available at SSRN.

Law School as a Consumer Product: Beat ’em or Join ’em?

Abstract:

With rising costs, pressure on performance metrics and competitive high-profile rankings, law schools are more than ever before being judged on a consumer satisfaction basis by both students and the public. While this perception has been growing over the past two decades, it has reached a crisis point in legal education. When students have their choice of educational institutions, they may act like consumers, and choose to spend their money based on metrics that satisfy them as buyers. This consumer mindset not only impacts admissions, but also can play out in the retention of students. The loss of students transferring out can take a serious toll on a law school, including potential detriments in bar passage, productive classrooms, the loss of future high performing alumni, and the cost of replacing the tuition generation. Schools are thus pressured to address the consumer issue.

Many of the conflicts that arise as between students as consumers, and their institutions, are not necessarily based in the substance of rules. Instead, much of the complaints can easily stem from the institution’s transparency and communication about various aspects of the educational experience, from in the classroom, to a student’s prospects on the job market. As such, institutions should be considering the student perspective in formulating how they present their program of education, and the various aspects within it.

While others have asked the question outright whether college students are consumers, this article does not debate whether law students treat their institutions with a consumer mindset. It presumes they do and seeks to solve the problem for institutions. Part II of this article summarizes how this mindset arose in education and specifically how it arose in legal education, and examines previous conflicts between students and institutions as a result. Part III examines different areas of law school operations where traditional academic mindset and student consumer mindset may clash, and offers solutions and strategies as to where and how the consumer pressure should be embraced to make institutional change, and where it should be resisted to ensure the consumer pressure does not result in changes that are not in students’ best long-term interests. Part IV offers some conclusions on the approach.

Citation:

Vollweiler, Debra Moss, Law School as a Consumer Product: Beat ’em or Join ’em? (July 10, 2019). Available at SSRN.

The Secret Sauce to Teaching Collaboration and Leadership to Lawyers: The 3-4-5 Method of Innovation

Abstract:

It is a hard sell to convince lawyers that they need to learn how to innovate. However, when we consider the skillset and mindset that is honed in the process of learning how to innovate, this decision should be a no-brainer. This is because, as discussed in the prior chapter (Innovation: A New Key Discipline for Lawyers and Legal Education), the call for innovation by clients is also a call for service transformation. When clients ask their lawyers to innovate, they are asking for their lawyers to co-collaborate more proactively and with a different mindset and skillset. The easy sell is that, in the process of learning how to innovate, lawyers learn to do just that: they learn to co-collaborate and hone the mindset and skillset that clients desire. An additional and under-emphasized benefit to learning how to innovate and honing the innovator’s DNA is that we also hone the DNA of leaders. When you compare the key qualities of an inclusive, adaptive leader with the key qualities of an innovator, they overlap. Research demonstrates that innovators, like leaders, have high emotional intelligence and communication skills: they are empathetic, open- and growth-minded, self-aware, associative, and audacious. This is why I believe that all lawyers should try their hand at innovation, even if their business model is not broken. This is also why I believe that innovation should be the new, key discipline in legal education for practicing and aspiring lawyers. By teaching practicing and aspiring lawyers how to innovate, we are, in turn teaching collaboration and leadership—and the lawyers don’t even know it. It’s like getting away with putting broccoli in someone’s ice cream—it’s the secret sauce.

But it’s not an easy sauce to whip together. That is, although these benefits may make the need for teaching innovation an easy sell, teaching lawyers how to innovate is not an easy task. This chapter (first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World) begins by explaining why this is so and why we need to utilize a method of innovation designed specifically for lawyers. It then describes the method of teaching innovation that I designed, re-designed, and tested over the past 10 years on over 200 multidisciplinary teams that included lawyers, business professionals, and law and business students: The 3-4-5 Method of Innovation for Lawyers. It then explains the secret sauce, why this new method works. Finally, this chapter concludes with a call to action for law schools, law firms, and legal departments to put on “New Suits” by creating a culture that inspires lawyers and aspiring lawyers to learn how to innovate (i.e., that cultivates intrinsic motivation) and that provides external rewards (the extrinsic motivation) to those that do.

Citation:

DeStefano, Michele, The Secret Sauce to Teaching Collaboration and Leadership to Lawyers: The 3-4-5 Method of Innovation (June 27, 2019). New Suits: Appetite for Disruption in the Legal World, co-curated by Michele DeStefano and Dr. Guenther Dobrauz (Stämpfli Verlag 2019); University of Miami Legal Studies Research Paper. Available at SSRN.

Anti-Money Laundering and Lawyer Regulation: The Response of the Professions

Abstract

The extension of anti-money laundering (AML) controls to lawyers has been a controversial topic since the early 2000s. The legal professions facing these measures have adopted differentiated strategies of response, three examples of which are examined and contrasted in this paper. In the US, the legal profession vocally objected to the measures and has been able to deflect any legislative action. In the United Kingdom, the profession pragmatically engaged with the new rules, while in France the profession has made maximum use of the levers of self-regulation allowed by the European directives. The paper presents AML lawyer-regulation as an example of the versatility of global regulatory norms, which do not necessarily evict national traditions. It also views the EU as the real bedrock of AML regulatory diffusion and questions US professional (and academic) resistance to these norms.

Citation:

Nougayrède, Delphine, Anti-Money Laundering and Lawyer Regulation: The Response of the Professions (June 15, 2019). Available at SSRN.

AI-Enabled Business Models in Legal Services: From Traditional Law Firms to Next-Generation Law Companies?

What will happen to law firms and the legal profession when the use of artificial intelligence (AI) becomes prevalent in legal services? This paper addresses this question by considering specific AI use cases in legal services, and by identifying four AI-enabled business models (AIBM) which are relatively new to legal services (if not new to the world). These AIBMs are different from the traditional professional service firm (PSF) business model at law firms, and require complementary investments in human resources, intra-firm governance and inter-firm governance. Law firms are experimenting with combinations of business models. We identify three patterns in law firm experimentation: first, combining the traditional PSF business model with the legal process and/or consulting business models; second, vertically integrating the software vendor business models; and third, accessing AIBMs from third-party vendors to take advantage of contracting for innovation. While predicting the future is not possible, we conclude that how today’s law firms transform themselves into tomorrow’s next generation law companies depends on their willingness and ability to invest in necessary complements.

Citation

Armour, John and Sako, Mari, AI-Enabled Business Models in Legal Services: From Traditional Law Firms to Next-Generation Law Companies? (July 12, 2019). Available at SSRN.

Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015

Abstract

The Legal Services Act 2007 effected major changes in the disciplinary system for solicitors in England Wales. Both the practice regulator, the Solicitors Regulation Authority, and a disciplinary body, the Solicitors Disciplinary Tribunal, were reconstituted as independent bodies and given new powers. Our concern is the impact of the Act on the disciplinary system for solicitors. Examination of this issue involves consideration of changes to regulatory institutions and the mechanics of practice regulation. Drawing on Foucault’s notion of governmentality, empirical evidence drawn from disciplinary cases handled by the SDT and the SRA in 2015 is used to explore potentially different conceptions of discipline informing the work of the regulatory institutions. The conclusion considers the implications of our findings for the future of the professional disciplinary system.

Citation:

Boon, Andrew and Whyte, Avis, Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015 (January 31, 2019). (2019) 39:3 Legal Studies. Available at SSRN.

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Granular Legal Norms: Big Data and the Personalization of Private Law

Against the background of the emerging debate about personalized law, this book chapter explores how BigData and algorithm-based regulation could fundamentally change the design and structure of legal norms: impersonal law based on typifications could be replaced by a more personalized law, based on “granular legal norms”.

We argue that the use of legal typifications which is a hallmark of impersonal law can be conceptualized as the answer to an information problem, a concession to the imperfections of a legal system administered by humans. The emergence of super-human capacities of information-processing through artificial intelligence could make it possible to personalize the law and achieve a level of “granularity” that has hitherto been unachieved. The chapter analyses the benefits of “granular legal norms” as well as possible limitations and objections, in particular privacy concerns and the principle of equality.


Full Paper Available Here

Christoph Busch, University of Osnabrück – European Legal Studies Institute

Alberto De Franceschi, University of Ferrara – Faculty of Law

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Sending the Message: Using Technology to Support Judicial Reporting of Lawyer Misconduct to State Disciplinary Agencies

Despite the strong public interest in effectively regulating lawyers, neither state nor federal courts have developed adequate policies and practices to ensure that lawyers’ misconduct during litigation proceedings is consistently reported to state disciplinary agencies. The reasons for this inconsistency—and the extent to which it should be considered an actual inadequacy and a problem calling for a rule-based solution—have been the subject of active scholarly discussion and debate. In practical terms, however, one contributing factor may be the inherent inefficiencies involved with the current reporting system. These inefficiencies in the judicial reporting process can be substantially mitigated—and regular reporting thereby supported—through the effective use of electronic database technology. For many years now, courts throughout the United States have been using computer and electronic technology, with its continually accelerating capabilities, to improve their processes for receiving, storing and transmitting judicial filings and records. This so-far successful experience with electronic filing and records creates an opportunity for courts to extend these technological breakthroughs to provide logistical support to a much improved system for judicial reporting of lawyermisconduct.

To accomplish this objective, this Article proposes that state and federal court systems create electronic databases, accompanied and supported by uniform court procedural rules and policies, to receive and store judicial reports of litigation-related lawyer misconduct. These databases should be accessible to and searchable by state disciplinary agencies using universal licensing numbers assigned to individual lawyers. To set the stage for this proposal, Part I will examine the history and scope of the ethical code of conduct obligations of state and federal judges to report lawyer misconduct to an appropriate disciplinary authority, as well as reporting pursuant to procedural rules governing civil litigation. Part II will critique the adequacy of the judicial response to these existing reporting provisions, and consider the adverse potential consequences that underreporting may pose to the public interest and to the traditional judicial prerogatives in regulating the practice of law.

Turning to the specifics of the proposed reforms, Part III will recommend how state and federal electronic databases accessible to and searchable by state disciplinary agencies should be organized and structured, and explain the criteria courts should use in deciding when a report is appropriate and how it should be categorized within the databases. Finally, Part IV will offer responses to several procedural questions relating to the implementation of these new reporting systems and databases.

Read the Full Article Here

Michael S. McGinniss, University of North Dakota School of Law

 

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An Australian Study on Lawyer Vulnerability & Legal Misconduct

Vulnerability to Legal Misconduct: Qualitative Study of Regulatory Decisions Involving Problem Lawyers and Their Clients

An emerging body of scholarship discusses ‘vulnerability’ as an antecedent of legal misconduct. One conceptualization of vulnerability indicates that an individual has greater susceptibility to risk of harm, and safeguards may protect against that risk of harm. This empirical study adds to the normative research with a qualitative analysis of 72 lawyers with multiple complaints and at least one hearing, paid financial misconduct claim, or striking from the roll (“problem lawyers”) in Victoria, Australia, between 2005 and 2015 through 311 regulatory decisions. We found that problem lawyers were disproportionately likely to be male, over age 45, and work in a sole or small practice. A quarter of these lawyers suffered from health impairments and among the clients harmed, half had cognitive impairments, were older age, or non-native English speakers. These findings underscore the need to better understand vulnerabilities to promote lawyer well-being, protect exposed clients, and reduce lapses in professionalism.

Access Full Report Here

Authors: 

  • Tara Sklar, University of Arizona – James E. Rogers College of Law
  • Jennifer Schulz Moore, University of New South Wales (UNSW) – Faculty of Law
  • Yamna Taouk, Melbourne School of Population and Global Health
  • Marie M Bismark, University of Melbourne
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40 Percent of APAC in-house legal, compliance professionals find regulations a challenge

Some 40 percent of in-house legal and compliance professionals in the Asia-Pacific region find changing local and global regulatory requirements a major challenge, a new report has found.

The report, titled “Facing the future: Developing a response to regulatory change” was released jointly by TMF Group and Asia Risk. It found that an alarming 57 percent of respondents did not take any action in 2018 to react to regulatory changes, and some 62 percent had no any actions planned for 2019.

The report surveyed more than 100 seniors across the region. It also found that businesses are continuing to struggle with both the amount, as well as the pace of change. On being asked to rate on a scale of 1-10 their confidence in their firm’s ability to remain compliant in 2019, over one-fifth of the respondents valued their confidence at five or less.

“In recent years APAC businesses have had to deal with a huge array of new regulations. Most firms are only now becoming aware of the size of the challenge they pose – but not all have yet managed to adapt. This is a crucial issue for the region’s companies, as failure to comply can have seriously detrimental consequences,” said Leila Szwarc, global head of compliance and strategic regulatory services at TMF Group.

Download the white paper from Risk Library