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Fresh, new airs

1 June 00

A personal view of the way forward for the legal profession, against a belief that there has never been a better time to look afresh at how it works

by Malcolm Mackay

Lawyers in Scotland can flourish in the knowledge economy, but to do so we must look at ourselves afresh and in the process create a vision that takes us well beyond any boundaries that we have drawn around our profession in the past.

With the decline of manufacturing and the move into the new economy it will be people, ideas and relationships that not only form the basis of a strong business but are also the measure of its worth. In this environment lawyers are in a unique position to contribute to business and to society at large, but to do so effectively we must change our ways, and must do so quickly.

A Full Sea

The legal profession faces challenges from non-lawyers, from technology and from client expectations while at the same time we compete ever more with each other in diminishing traditional markets. Yet the opportunities that exist for lawyers in the new economy are boundless. We should recognise this time of opportunity now:

“There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; omitted, all the voyage of their lives is bound in shallows and in miseries. On such a full sea we are now afloat, and we must take the current when it serves, or lose our ventures.”

William Shakespeare, Julius Caesar.

To take advantage of these opportunities we as a profession need to change the way we see ourselves, the way we conduct our businesses, the way we cooperate with each other, and perhaps most importantly the way we define the role of the lawyer. One of the most important changes we must make is to move away from our traditional logical approach to problem solving and, without discarding that altogether, teach ourselves to think in more imaginative, instinctive ways. This is what clients want – they want answers to problems, not black letter law. They want results, not obstacles. They want value for money, not endless bills.

This year more than any other the legal profession finds itself on the “full sea”.  

Most other service providers have experienced the tide of change brought on by increased customer awareness and expectation.  One need look no further than the banking, insurance and pensions sectors for examples of the way in which increased competition and customer awareness have driven change on an unprecedented scale over a very small number of years.  These institutions have had to radically alter the way in which they provide services to their customers. They have had to change to survive.

Difficult though the process of change has been in the financial sector (and elsewhere) it has been facilitated by the use of substantial resources available to larger organisations.  In particular, the innovative use of technology has been a key to achieving the necessary efficiencies and market presence. That technological infrastructure enables larger organisations to reach and service larger client bases with a broader portfolio of services. However, technology on this scale requires capital investment beyond the scope of most legal firms.

We as a profession have been something of a law unto ourselves.  There has always been a certain mystique about the law and the willingness of lawyers to hide behind this has in the past been tolerated by the consumer.  This is no longer the case.  For a long time many of us have relied upon our knowledge of the law as our main asset, the thing which separates us from others. This will no longer be sufficient to sustain legal practices in the future.  Advancing technology has ensured that knowledge is freely available to all by way of book, CD Rom and most importantly the Internet.  

Those invisible things

What business and professional skills do lawyers have, and what do they need to develop to retain a credible position in the new economy?  Ours is not a capital-intensive area of business in a traditional sense. Rather the service we provide depends for its foundations on invisible factors such as the knowledge, insight, wisdom, experience and judgment of the people who provide the service.  Because law has become so much more complex there should be a tremendous future for those who can maximise the delivery of those invisibles.  

However, a number of challenges have to be faced to achieve those ends.

Unite our being

An obvious issue relates to the bar and the solicitor sides of the profession.  Both should be exploring ways of working more closely together in providing a unified and seamless service to clients.  Public trading of insults as we have witnessed elsewhere serves no purpose whatsoever and simply presents an image of a divided and self-serving profession.

We should also jointly explore approaches to the promotion of fundamental change within the profession.  Particularly we need to find new ways to attract the most talented people as well as to educate and train them. We also need to identify new and positive ways of marketing legal services in a unified way. These issues will be considered below but first it is necessary to consider the nature of the competition we face.

Take the current when it serves

Solicitors have traditionally derived a high proportion of income from matters related to property and it may be that the public perception of our role remains rooted in that background. However, since the 1970s there has been a huge growth in social legislation, in particular welfare law, employment law and housing law. Now we have human rights legislation, the full impact of which still tends to be underestimated by lawyers. Could it be that because of the traditional property based image a certain amount of legal work that has emerged from social legislation over the last quarter of a century has by-passed the legal profession?

Clearly much of it has come within the realm of the lawyer – employment law being an obvious example. But does it truly reflect the amount of law that has developed and if not, where are potential clients going? In fact a great deal of “social” legal advice is provided by a whole range of other advisers, including Citizens Advice Bureaux; advice centres; banks; insurance companies; accountants and assorted consultants. Although lawyers have seen their workload increase in those areas, have they failed to take opportunities there that would have increased the profile of the profession? Could those opportunities have been better realised if the public and business had a different perception of the legal profession?

Our ventures

A process of growth and acquisition was undertaken by the larger accountancy practices a number of years ago and continues unabated. It is an interesting exercise to examine the list of services of any of the larger firms of accountants where law features heavily on the menu. Many accountancy firms have a global presence and are of such a size that they can provide the broadest range of services and frequently employ solicitors to do so.  

Lawyers ought to be more involved in general business advice and support services than is currently the case. I believe that if there was ever a time for lawyers to move in this direction it is now, not least because of the changing face of business.  

Investors and employees in a business increasingly seek something different from traditional financial returns. More and more investors seek a principled approach to the way it is run. Employees increasingly value involvement and participation in a business as much as financial reward. Businesses that succeed in the knowledge economy are those that best harness and grow the productive and creative instincts of their employees. They understand that business is very much based on working relationships. To attract the best people a business has to understand those relationships. To keep them, it has to concentrate on training, development and employee involvement. To enter strategic alliances with other businesses it has to understand commercial relationships. The most successful users of the Internet in the business world are those who recognise that the technology is a tool for creating and improving customer and commercial relationships.

In this world there must surely be a substantial and increasing role for those whose skills should be based on understanding relationships – lawyers. However, we have to earn any increased confidence that the public and business may place on us. We also have to tackle a number of specific challenges at both an individual and collective level.

The voyage of our lives

So what is holding us back?  Over the years we have become too introspective and inwardly competitive.  For too many years there has been complacency based on the proposition that only lawyers were capable of carrying out certain tasks and that this would always remain the case.  There has been little collective long term vision within the legal profession.  We have also suffered from a poor public image.  We have failed to apply transparency to our own processes, and this has reduced our credibility in the eyes of the public.  Our confidence has diminished. We have not been responsive to change. We are a divided profession.

If we do not do something to correct these deficiencies, and do it quickly, the legal profession as we know it will be very much the poorer in a short period of time. We need only consider the speed with which the long established practice of having temporary sheriffs dispense justice disappeared almost overnight and the enthusiasm which is now being shown amongst politicians for a fundamental overhaul of the system for judicial appointments.

To compete more effectively, we need to pay particular attention to the maintenance of standards, to our image (marketing and branding at a collective and individual level) and to the Internet, amongst many other things. We need to shed the old property dominated image or at least merge it with something more human. We also have to recognise that despite surveys tending to suggest a level of satisfaction with solicitors as providers of legal services, many consumers see lawyers as a necessary evil to be tolerated.

In effect, we need to “re-brand” the law and lawyers.

Fresh, new airs

For many years logic has been the lawyer’s trademark.  Much of our function has been to interpret and advise on logical legislation produced by logical minds. However there is no logical reason why this should continue to be the case. 

One key to an improved future is to modify the way we think.  If we continue to apply purely logical activity to thought processes both in the way we advise clients and conduct our businesses, then as a profession we are doomed.  We will simply be overtaken by a bewildering array of competitors.  Public awareness, market forces and technology will see to that.

On the other hand, if we change our thinking to take the best out of our traditions and also adapt them to the new business world, then we may grow through values which are not necessarily on the menu of our competitors.  A proper balance between logical and creative thought is a powerful tool.  Add to that a belief in the principles of justice and humanity and a unifying common purpose within the profession and the Scottish lawyer would then be well equipped to make a powerful and positive impact on the way people lead their lives and on the way businesses conduct themselves. 

If we can release our thought processes and recover our sense of adventure then we can find new markets and apply new ways of thinking to them.  We can concentrate on competing with the outside world rather than with each other. In the process we should not forget the value of our independence as a profession giving advice to others.

To make the transition into a fresh way of thinking, we should review (but not necessarily reject) all of our traditions and assumptions, starting with those relating to our own businesses.

Open your mind

Frequently people fear the impact of substantial changes to the way they live or work.  However, in practice such fears are founded on perceptions rather than reality and tend to disappear relatively quickly when the process of change has been completed.  Whether one likes it or not, change is now an unavoidable fact of life.  Arguably it affects lawyers more than those in other areas of business because we have always been so heavily reliant on traditional, logical thinking and precedent.  Our way of thinking has tended to make us risk-adverse and we frequently find ourselves advising clients what they cannot do rather than what they can do.  This affects the client’s perception of us; another perception which when changed could lead to the lawyer playing a more dynamic role in business.

What does a good law firm consist of?  What does it need to be successful?  It must have good people but it needs more than that.  It needs a vision and it needs management. Clearly it needs a knowledge base. A firm also needs ideas and imagination. It also needs know-how or wisdom. That is what distinguishes a lawyer from someone who simply tells the client what the law is.  A law firm also needs an identity, a crucial factor in the success of any business. 

See anew our selves

Many lawyers reject the idea of branding on the basis that “we are not selling baked beans”. Yet we are in business to sell services. Other service providers market effectively. If you wish to attract the public to use your services clearly personal reputation in itself will be one of the most desirable tools. But we need to be able to say what it is about us that is different from our competitors and the fact that what we sell is something you cannot see, touch or taste should not make it any more difficult to market. Why can this not be done effectively at an individual level by firms themselves and at a collective level? There have been successful campaigns (It’s never too early to call your solicitor etc) but none sticks in the mind as having had a dramatic impact on the public perception of the lawyer. Nor have there been many memorable individual marketing campaigns. Marketing is expensive and beyond the budget of most small practice units. This fact of life heightens the need for an effective collective approach, preferably including all branches of the legal profession.

Before a legal firm can market its services it needs to create an identity. Unfortunately to many legal firms their only visible identity is a logo comprising two or more initials twisted and locked in a gruesome embrace.  What this tends to say to the outside world is “We have no imagination”. 

We are now afloat

The Internet presents a huge threat to certain aspects of the traditional way of providing legal services. Yet at the same time surely it presents a massive opportunity to a profession such as ours. Despite what some merchants of doom predict, the Internet will not completely remove the need for lawyers. Indeed, on one view of it, the Internet increases the need for skilled and imaginative lawyers. However it will remove the need for those whose stock in trade is the regurgitation of legislation. How can we use the Internet to improve services to our clients?

First, it is important to recognise that the real value of the Internet is in creating, improving and expanding relationships with existing and new clients. To that extent it is an extension of one’s brand or marketing strategy and must therefore sit well with that.

Second, it opens up whole new markets for all types of legal firm simply because of the removal of geographical restraints. For those prepared to use this freedom to its full, it opens up the possibility of, for example, the lawyer in Oban creating a specialist practice in maritime law and advertising this to attract business not just from traditional areas but also from other lawyers. Many other legal services are now provided on line with back-up telephone support, such as will drafting, divorce etc.

The opportunities are there but the competition is also fierce – lawyers need to move quickly and effectively.

Our tomorrow

A few words need to be said about legal education. In considering how the legal profession can change from a collective point of view, it is essential to start at the beginning and review the whole process whereby lawyers are educated and trained.

Considering the importance of law in our society and the increased impact of social legislation in recent years, it is astonishing that basic awareness of the legal system is not created at school level.  The exclusion of law from the school curriculum may in itself have contributed to the perception of lawyers as being a breed apart. That is where divisions start. The way in which law is taught has hardly changed in decades.  Many of the university courses consist simply of repetition of rules and give rise to widespread dis-satisfaction among students. Over the course of a law degree this can have the effect of stifling creativity and imagination and therefore depriving future lawyers of much-needed instincts.

Quick, quick

There has never been a better time for the legal profession to look afresh at the way it works.  Now is the time to reassess our traditions with a view to retaining those that will serve us well in the coming years and applying fresh approaches to those that will not.  If we look at ourselves to identify and enhance the qualities which distinguish us from others we will then be able to project those to the outside world in a way which will make a real difference to the future well-being of our profession and to the way in which our society functions.  However, if we fail to pull together, remaining adrift on this changing sea, then we have little prospect of retaining a truly independent and effective profession. The skills of the poet can help us look anew at ourselves:

Our tomorrow grows from the bud of today, would flourish in all who would walk new ways, not saying “no” to yesterday when the seed was planted, yet not bound to that past, but open to fresh, new airs that blow down barriers, unite our being in common humanity. We see anew our selves in others, others in our selves. Quick, quick, open your heart and mind to all kind.

George Bruce