The traditional model of today's lawyer needs significant re-evaluation. Not just about how we deliver our services, but also about who we are and why we are here.
This was the conclusion of Solicitor-General Una Jagose QC as she delivered the 23rd annual New Zealand Law Foundation Ethel Benjamin Address at Dunedin's Public Art Gallery on 24 October. The first woman to be admitted and to practise as a lawyer in New Zealand, Ethel Benjamin graduated from the University of Otago in 1897.
Ms Jagose's theme was "Imagining the future lawyer". Taking the comment "the heart must be developed as well as the brain" from Ethel Benjamin's graduation address, Ms Jagose considered developments in the New Zealand legal profession since 1897, wondering "what would Ethel say?".
Emphasising that her ideas were her own, "not government policy!", Ms Jagose said dialogue to continue uncovering the uncomfortable truths about New Zealand lawyers as a profession was critical to sustained cultural change.
"Otherwise we risk keeping trying to place in races we don't want to run in, to measure ourselves against the wrong things," she said.
Lose any ego
"The first thing I would say is we lawyers need to lose any ego we have about having all the answers. Now, I have always worked in in-house legal teams, and for government. When I was first at the Ministry of Fisheries, I was early warned that a policy advisor X was a “bush lawyer” – what an insult! – and I should look out for his “from the hip” and risky approach to legal matters. Sure enough he was pretty gung-ho about the “law as a guide” but actually it taught me early that the much maligned bush lawyer can be incredibly valuable to the lawyer. They often know the policy and the purpose behind legislation. They frequently can point out pitfalls or how things have been done before.
"And then I learned the strength of working with others, listening to other perspectives, in multi-disciplinary teams, teams that allowed for integration of specialist knowledge sets and multiple perspectives to deliver a solution/set of options for decision makers. Collaboration, another much maligned concept, is not about everybody talking endlessly about everything!"
Rethink the product
The second thing, Ms Jagose said, is that lawyers need to rethink the product they are peddling. The “legal opinion” had a lot to answer for as a long held belief that a lawyer will provide a long, well-articulated and reasoned dispassionate assessment of what the law says the answer is. The time had long passed when lawyers could sit in isolation in offices and divine the one true answer based on what the law means in a certain situation.
"If that is how we think of our role as lawyers, or if that is how we are perceived or used by our clients, we will be overtaken by a robot very soon. And we would deserve to be. But if we develop the heart as well as the brain, if we make sure we maintain our individuality and humanity, we can build the “lawyer” that Ethel was imagining all those years ago. We can outperform Artificial Intelligence lawyering by having well-developed humanity at the centre of our professional culture."
Change the value perception
Lawyers had to move away from the lawyer-as-800-pound-gorilla mode of operating, "where value is measured by hourly billing, quantity of work delivered, a closed shop of legal talk which only other lawyers can understand, to a model where the advice offered is innovative and solution-focused, and the result of a collaborative work process".
"The traditional law firm model – where the prize is to make partner, to draw from the profits of the firm – doesn’t sit well with this collaborative and innovative model. Time-based billing to clients remains the firm’s main mode of measuring value (though this is changing), but measuring 6 minute units of time disincentives innovation and downgrades those non-billable but critical functions of research, productivity, and culture development.
"We are starting to see here in Aotearoa a slow change in the law firm offering; the highly flexible law firm which uses different billing arrangements, secondments and project-based offerings of lawyers, using on-line, self-help models, providing a flexible workforce. And it is no surprise to me that these are the workplaces that suit women and a more ethnically diverse workforce: in 2019 nearly two-thirds of lawyers working in-house are women.
"The in-house model of lawyering – where corporates and others employ lawyers in order to ensure they have access in a flexible way to focused legal advice from lawyers who understand the business, its risks and opportunities, and which see themselves as part of a broader team – values the lawyer differently. What this model allows is a focus on the 'client' and the business needs, rather than hours worked and billing targets. The lawyer’s value is what they bring to the table, to the solutions and options."
Redefining the values of the profession
Ultimately lawyers need to redefine the values of the profession and who they served, Ms Jagose said.
"What does it mean to be a lawyer? It cannot be only that we provide a quality service to a series of clients who seek us out. Our profession has a higher purpose: ensuring access to justice, maintaining the quality of justice and its relevance to the community, and upholding the rule of law. The law is important – it makes free and democratic society work. And lawyering cannot be just about us lawyers, it’s about the service we give to society, to justice, to the bedrock rule of law.
"We can only do these things if our numbers reflect and include the diversity of the communities we represent. We lawyers occupy an extremely privileged place in society – let’s not pretend otherwise. With that comes a responsibility – for each other, for our communities, for the law itself.
"What if we move to hold ourselves to values that explicitly support this ambition? Respect for each other as people, not based on hierarchy of role; the impact on the wider profession of our conduct (not just immediate client or ourselves); hold each other to the higher standard we claim of ourselves. What then might we say about 'the fit and proper person' to whom entrance to our profession is reserved?
"There are critical junctions in legal careers already in existence that we can use as opportunities to shape both current and future lawyers: ethics courses at university; the professionals courses by which those newly minted lawyers are launched into practice; admissions processes and ceremonies; stepping up courses for barristers; courses for those going into partnership; appointments to disciplinary bodies; appointment of QCs; and appointments to the judiciary . We can use these junctions to set expectations and to remind us what a 'fit and proper person' is and who lawyers serve at key stages of a legal career."
Leaders set the tone, Ms Jagose said.
"Listening and speaking out about these issues, role modelling the behaviours we want, and taking action when required all go to moving cultures and resetting what is acceptable. New and younger lawyers will no longer tolerate the workplaces that some of our profession have grown up in; nor should they. But alone this will not be enough.
"The regulatory model has to change. One of the findings of Dame Silvia’s Working Group Report is that the Law Society was not viewed as the place (and was not ready for) complaints about lawyers in relation to harassment or bullying behaviour in workplaces.
"We need to match culture change leadership with the firm hand of the Law Society as regulator to set the base line, and enforce it. Together, we can will deliver real and sustainable change."
Progress will not be easy
"We are at a culture reset moment for the profession," Ms Jagose said. "Let’s not waste the opportunity. Those of us in privileged positions need to open our eyes to what is happening around us and use our positions to call for change, to insist on cultural change."
"Progress will not be easy and courageous dialogue will need to be had all around the motu, supported by the leaders in the profession, until we can talk to these cultural issues honestly and build in to educative and regulatory frameworks the processes to really shift the dial."