Reviewed by Deborah Macfarlane, School of Information Systems, Faculty of Business and Law, Victoria University. Email: deborahmacfarlane [at] live.vu.edu.au.
Editor’s note: The author and reviewer are not related.
In THE NEW LAWYER Canadian professor Julie Macfarlane examines the changing dynamics of the legal profession and practice over the past three decades and what future is likely to emerge out of those changes. In particular, as the subtitle indicates, she analyzes the ways in which the high rates of case settlement and alternative dispute resolution have already radically transformed the work of today’s lawyer despite the fact that legal education, advocacy, the public perception of lawyers as ‘client warriors,’ and traditional legal norms and values have largely remained static. Analyzing also the changes within the adversarial system in recent decades she paints a picture of two powerful and very different systems, ADR and the adversarial, on the cusp of merger. Finally, Macfarlane extrapolates from her research to provide a very believable, coherent projection of what law and the qualities and skills of the new lawyer will look like as a result of that merger in the early decades of the twenty-first century.
The first half of the book deals with the status quo, including the changes to date and the embryonic emergence of the new lawyer; the second describes how the changes are likely to transform the profession and the lawyer-client relationship, throwing up new ethical challenges in the process, making different demands of educators and judges and requiring greater inter-professional collaboration. Macfarlane’s reliance on solid research and the factual tone of the book provide relief from the relentless proselytizing of some academics in the ADR industry. The material is easy to read, and despite some inevitable repetition given the topic, the chapters are well organized with a good forward momentum. The book is directly relevant to a wide range of people working in law, the courts, universities, ADR and the social sciences, and is also of general interest. Although Macfarlane chiefly focuses on Canada and the United States, her work is generally applicable to other common law countries, such as Britain, Australia and New Zealand.
In the introductory chapters, Macfarlane details the structural and organizational changes which have occurred in the legal profession in recent decades: the enormous increase in the size of the lawyer population; the growth of megafirms leading to the development of a hierarchy and corresponding decline in the professional autonomy and job satisfaction of young lawyers; the [*481] decrease in numbers of sole practitioners and small firms facing competition both from paralegals and poorly paid contract lawyers in larger firms; and the growth in numbers of minorities and women who now constitute a sizeable proportion of graduates. Over the same period, courts have introduced substantial reforms, such as case management and mediation largely because the costs and delays involved in trials have blown out considerably and the relative number of judges has declined. These are all factors which have contributed to the well documented ‘vanishing trial’ (although, it should be said, historically few cases, only around 5-10%, ever did make it to trial). Consequently most legal work now relates to settlement, and some partners in law firms have never actually appeared in a full trial.
Yet, Macfarlane observes that the fundamental norms and values of lawyers have not been re-examined in the light of these significant changes, including those wrought by ADR: ‘At the critical point of entry to the profession, there is a continued failure to recognize the skills and qualities that are needed by a new generation of lawyers’(p.15). She considers the core of the problem to lie in the attitude of educators and law firms to advocacy, an attitude arising out of the belief in an aggressive ‘rights-based expertise’ within an adversarial system – ‘zealous advocacy’ – to be seen as the most fundamental attribute of the successful lawyer. The pace of change in law schools has been ‘glacial’; substantive knowledge and case law is still taught within an adversarial framework and only analyses reflecting it are rewarded. Similarly, substantive knowledge, high marks and a ‘pit bull’ mentality are valued by law firms, which in turn reward adherence to the model with more interesting and better-paid work. Professional codes of conduct complement the process. The result, she concludes, is that despite the need to broaden negotiation and interpersonal communication skills and to develop a problem-solving rather than a paternalistic relationship with clients, there does not yet exist a ‘critical mass for change.’
Macfarlane sees the key to changing legal culture as moving away from an approach based solely on what she calls the ‘three key professional beliefs’ (chapter 3) which she considers inadequate to meet the needs of the twenty-first century: the default to rights-based dispute resolution, justice as process and lawyers in charge. A belief in a rights-based advocacy means that good advocacy is seen as positional, and easily becomes very adversarial, other solutions are too easily overlooked, and many inappropriate disputes go down the trial track, often reaching inappropriate outcomes. The author in fact notes a widespread cynicism with the unpredictable outcomes of justice and a corresponding, misplaced faith in due process as a means of ensuring justice. Finally, the expertise required for rights-based advocacy leads lawyers to the third belief, that they are ‘in charge’ of the dispute, thereby distancing the client from participating in both the process and possible solutions to their own problems.
According to Macfarlane ‘the interdependence of values and structure means that challenge to traditional bargaining practices is both difficult and complex’ (p.66). She paints a picture [*482] familiar to most litigation lawyers. Despite the fact that most cases settle, they do so within the adversarial paradigm. Although trials are now rare, full discovery is still normally carried out, even when mediation is ordered, and pre-trial adjudication and motions activity have significantly increased, what has been termed ‘non trial adjudication’. Relatively little time is spent on negotiation compared with the legal process; it is stylized, unimaginative, and positional, focusing principally on rights and monetary solutions. Moreover, as research cited by the author has demonstrated, negotiation usually ends in rapid settlement after only one or two offers and counteroffers from each side, shortly before trial and in the absence of clients. In fact, while lawyers conceive their main ethical duty is to serve the client’s interests at all costs – ‘zealous advocacy’ – the client traditionally has little to do or say at any stage of the proceedings, an approach that hinders problem-solving. The outcomes are expensively inefficient and disliked by clients: in a 1995 Ontario study carried out by the author only 8.5% of trial group litigants said they were completely satisfied with the outcome of their case. Significant numbers of lawyers are also unhappy with the unproductive results of positional bargaining.
THE NEW LAWYER does not of course end here. There is light at the end of the tunnel. Changes in the courts affected by public policy makers, such as case management and mandatory mediation, to the practice of law by collaborative lawyers and others interested in consensus-building processes have begun to alter the behavior of some lawyers and the nature of their relationships with their clients. Macfarlane notes the emergence of an alternative form of advocacy, what she calls conflict resolution advocacy (CRA). Here the primary focus is the ‘best possible negotiated settlement’ for the client, although adjudication remains one of a number of options available. Negotiation is the central focus of CRA, and should, according to the author be addressed at the earliest stages of file development. The negotiation skills required for CRA are a lot more complex than for zealous advocacy, and necessitate an understanding of the goals not only of the client but the other parties in order to work out the best scenario for the client. Likely costs and the client’s overall financial situation also need to be taken into account. Information gathering in CRA is also more complex, comprising not only what is necessary for the presentation of legal argument, but also information useful for supporting the client’s interests and needs. Moreover, the need to work collaboratively means that information is viewed as a resource to assist all parties to achieve a mutually satisfactory settlement.
Macfarlane provides a thoughtful analysis of the new dynamics of the lawyer-client partnership in CRA. Clients are seen to have a difficult time in the traditional system. ‘Virtually “invisible” in law school . . . their position understood and framed through the prism of the lawyer in charge’ (p.125), they are in practice directed what to do by a lawyer under the guise of taking instructions, their stories transformed to suit positional arguments. However, this is changing; clients are becoming more assertive and knowledgeable and less deferential in [*483] the same way as doctors’ patients have recently begun to play a more active role in their own medical management. Business clients are scrutinizing ever-increasing costs and delays at the same time as mandatory mediation has enabled personal clients to see the limits of the traditional lawyer-client relationship, and sometimes ignore counsel’s advice in order to follow their own inclinations. Easy access to legal information through the internet has also led clients to expect a share in decision-making. The new lawyer is not afraid of this shift in the balance of power, establishing a working partnership with the client with respect to transparency over process preferences, information-gathering, joint strategy planning, hands-on decision-making and involvement in settlement processes. The author stresses the need to educate clients to make fully informed decisions, and prepare them for unfamiliar processes such as mediation to maximize the effectiveness of client participation. She also considers that the new lawyer’s working partnership with the client entails a more supportive role that does not exclude emotions and feelings (an exclusion still regarded as appropriate by most traditional lawyers) but also avoids over-personalization of the relationship.
Nevertheless, Macfarlane considers that the primary expertise of the lawyer remains the law and the giving of professional legal advice. She insists that one cannot speak of a ‘paradigm change’; instead, the role of law and legal advice must be carefully reformulated under CRA, a task she describes as the most challenging for the practice of the new lawyer. Legal analysis alone may cause non-monetary solutions to be overlooked or prevent an understanding of the importance of non-legal problems which bar the way to the resolution of the dispute. While the lawyer’s use of legal knowledge to predict the final outcome remains critical in determining the best alternative to settlement should negotiation fail, it comprises only one of a number of factors surrounding a dispute that need to be considered and weighed by the client and their lawyer when looking at settlement options. However, consideration of those other factors enables the lawyer to see more clearly how legal principles can be used to obtain the best possible solution for the client in that particular dispute.
The chapter dealing with the ethical dilemmas facing the new lawyer is one of the most interesting. The author observes that, while traditional law in a public context deals with ethical problems according to a rule based approach, this does not apply to informal dispute resolution processes, where the sorts of problems that arise are only just becoming apparent and the correct responses to them remain instinctual rather than defined. She outlines a number of situations where ethical issues may arise. To prevent these, the new lawyer has certain new obligations which include, for example (the list is not exhaustive), the obligation:
- to discuss process options with clients (a new rule of professional conduct in Ontario where Macfarlane is based);
- to give sufficient information for the client to form realistic and accurate expectations of whatever process they choose;
- to maintain the proper balance between establishing a working [*484] relationship with the other side while remaining loyal to the client;
- to protect vulnerable clients from harm in ADR processes where there are power imbalances particularly those due to abuse and violence;
- to negotiate in good faith and ensure that clients also do so;
- not to pressure clients into settling without adequate reflection or allow them to be pressured by anyone else including the mediator; and
- to advocate for ‘a consensus solution that meets, above all, the needs of [the] client’
The examples given make it clear that lawyers need to feel their way carefully in the relatively uncharted waters of the new advocacy.
Finally Macfarlane identifies three ‘critical sources of influence and leadership’ or ‘sites of change’ which ‘have the potential to bring forward and promote initiative and innovations that will play an important part in the evolution of the new lawyer’ (p.125): legal education, the new judge and inter-professional collaboration. In an excellent section on law schools, she states, inter alia, that they ‘exist in a zone that is conceptually and practically isolated from legal practice’ (p.226), tend to assume that a choice must be made between two dichotomous goals for legal education, vocational training and intellectual development’ (p.226), offer practical skills or ADR subjects as ‘soft’ options, and continue to concentrate on advocacy skills in mooting programs and the like, rather than the broader skills needed for settlement advocacy. The section on the new judge is also interesting. It is clear from the author’s research that change is being initiated and embraced by many of the judiciary more wholeheartedly than by the lawyers who appear (albeit less and less frequently) before them. In a survey carried out by the author for the Canadian National Judicial Institute in 2002, ‘45% of judicial respondents stated that enhancing settlement conferencing skills was a personal priority’(p.234). Macfarlane considers that ‘qualities sought in prospective judges (will need) to reflect the nuances of a settlement as well as an adjudicative role’ (p.236). Finally, she discusses how the legal profession must, to a certain extent, abandon its traditional isolation and embrace collaboration with a number of other professions in order to remain viable in the future.
As far as I am aware, THE NEW LAWYER is the first book to thoroughly research and describe the massive changes in the legal profession and practice in the last three decades, and to make a serious attempt to predict what will happen in the decades to follow. This is a subject I suspect will be increasingly examined in the next few years as researchers realize that these changes are about to revolutionize the work of lawyers. Already another book by English professor Richard Susskind (2008) on the topic has been reviewed in this online venue. Its perspective is quite different; every author will approach the topic differently according to his or her training and experience. In her conclusion to the book Macfarlane sums up the current situation well:
To construct a complete picture of the many ways in which legal practice is changing, it is necessary to include many disparate elements: structural, economic, demographic, procedural, and cultural. [*485] These elements do not fit seamlessly together to form a single consistent theory of change. Nor do they provide us with a clear prediction of what the legal profession will look like twenty years from now . . . Questions about what that new professional identity, or choices among multiple identities, will look like are a long way from being answered – in fact, the questions themselves are only just being asked. This book is an effort to ignite and advance this debate.Her book is in fact an outstanding effort. Readers will not be disappointed.
Susskind, Richard. 2008. THE END OF LAWYERS? RETHINKING THE NATURE OF LEGAL SERVICES. Oxford: Oxford University Press.
© Copyright 2009 by the author, Deborah Macfarlane.