October 23, 2012

No Lawyer Left Behind

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 Table of Contents | Features | Frontlines | Technology | Business

September/October 2010 Issue | Volume 36 Number 5 | Page 64


No Lawyer Left Behind

I have a modest proposal for improving practice management education. But, some will ask, do we really need such a thing? Absolutely, and here’s why.

At my old law firm, I was more or less the official “technology guy” who, in addition to practicing law, helped all the other lawyers with their technology issues. One particular memory from my time there stands out, nearly 12 years after it happened. I was walking down the hall shortly after we had new Windows computers installed, and I happened to glance in a senior partner’s office. He was holding his mouse up in the air, pointing it at the computer screen like a remote control, and clicking the button like crazy. I continued down the hall, thinking to myself, “Now that’s what you call job security.”

I did, by the way, go back later and help him with his mouse issue.

But this memory perfectly illustrates the premise of my article: that while law school may teach lawyers about substantive law and how to think and argue in a logical way, most lawyers are woefully uneducated when it comes to managing the practice of law—marketing, technology, finance and general management skills. And it’s not just law schools. Many state bars and lawyers themselves are not diligent about improving their knowledge in these very important areas. So here, I pay homage to Jonathan Swift’s “Modest Proposal” by offering a few realistic, yet radical approaches to altering the state of practice management education for lawyers.

The Problem, Part 1

The problem begins in law school, where the plain fact is that students do not receive effective training in practice management skills. For her article “Teaching Law Office Management: Why Law Students Need to Know the Business of Being a Lawyer” ( Albany Law Review, Vol. 71, Issue 1, 2008), Debra Moss Curtis surveyed 195 ABA-accredited law schools and found that only 64 offered some type of course focusing on law practice management topics. And the titles of some of these courses—which include “Civil Practice Skills,” “Law of Law Firms,” “Lawyering Practice,” “The Law Profession” and the wonderfully vague “Legal Extern Class”—demonstrate that there is no consensus on how they should be taught, if at all. Why is this? 33 Law schools do not have enough qualified faculty in the topic. After all, most law professors have not actually practiced law.

• Lack of support from state bars, including practicing lawyers and judges in the community.

• An apparent failure on the part of law schools to connect the importance of good business management to a lawyer’s ethical responsibilities.

• A general lack of support internally for a practice management curriculum. David Brink illustrated this best in his article “Legal Education for Competence–A Shared Responsibility” ( Washington Law Review, Vol. 59, 1981) when he wrote, “The role of law schools is to train law students in the theories and substance of the law and how to think like lawyers, rather than functioning like trade schools.”

Which leads us to:

The Problem, Part 2

Law schools attract certain types of people. These types are very good at thinking like lawyers—in analysis, theory, persuasion and intellectual brilliance—but they have been historically poor in the area of business management, except for the rare ones that came to law school with an MBA or other business degree. After all, the law is a profession, not a business, right? Fortunately, that thinking has continued to change and lawyers these days increasingly recognize the need to operate a firm or practice like clients operate their businesses.

This should lead to the conclusion that lawyers are running out in droves to improve their marketing, technology, finance and general management skills, right? If you answered “yes,” you would be wrong, for the simple reason that:

The Problem, Part 3

Practicing lawyers do not receive adequate practice management education opportunities, and they are not sufficiently motivated to learn about it. Many state bars have practice management programs, but not nearly enough do. At last count, only 21 states offered dedicated practice management assistance. These programs provide incredible resources to the practicing lawyer, via CLE, newsletters, blogs and even one-on-one support. Why don’t more state bars offer these programs?

One reason could be that the majority of lawyers aren’t all that interested in learning practice management skills. In the 2009 edition of the ABA Legal Technology Survey Report, more than 82 percent of those surveyed said that it was either “Very important” or “Somewhat important” to receive training in technology. However, a more interesting answer was that of lawyers saying that technology training is “Not very” or “Not at all” important. The clear majority were solo and small firm lawyers—arguably those who need this kind of education most.

And lawyer feelings about continuing legal education confirm this ambivalence toward practice management education. In response to the question “Why do you take CLE courses?” only 12 percent of the 2009 survey respondents answered “A desire to expand knowledge on topics outside my practice area.” Over 75 percent responded with what you might expect: “I need to fulfill my state requirements.” Perhaps I’m being overly cynical here, but it seems that most lawyers are simply uninterested in learning about topics that are outside their main areas of practice.

Now that we’ve identified the problem, what should we do about it? Let’s turn to considering my proposed solution, which has two reasonably realistic steps and one pretty radical (but familiar) suggestion.

The Threefold Proposal

Here are the particulars:

Law schools. All law schools should offer some form of practice management education.

• The courses can be elective, but should be mandatory.

• At a minimum, full-time faculty should be dedicated to this curriculum. Ideally, the faculty will consist of practicing attorneys who have substantive experience in the four core areas of practice management.

• Practice management questions should be included on state bar exams, to give law schools additional incentive to offer these courses.

Practicing lawyers. Once out of law school, lawyers will have responsibilities to keep abreast of the latest in practice management topics.

• Lawyers should receive CLE credit for practice management courses (which currently is not available in all states). Ideally, yearly practice management CLE should be mandatory, too.

• In states where the bars have practice management advisors or practice management sections, lawyers should receive automatic, free membership to the practice management services.

• Eventually, practice management programs would be established within all 50 state bar associations.

However, a comprehensive practice management education is not complete without my final, more radical step, which is:

Lawyer internships. Doctors have been doing this for years—why can’t lawyers do the same? Here’s how it would work.

• After graduation and the bar exam, newly minted lawyers would begin a one-year practice management curriculum, administered either by their law firm employer or the state or local bar association.

• The curriculum would include aspects of mentoring as well as intensive “Transition to Law” training, in addition to on-the-job training.

• If the new lawyer meets the requirements at the end of the year, his or her law license will be issued. What if the lawyer doesn’t pass? Well … that’s an issue for another day.

I know I’m dreaming here—without a lot of organization, and a couple of miracles, my modest proposal doesn’t stand a chance of success. But there are things you can do now to help me out. First, be a good alumnus; write your law school and demand that it take practice management education more seriously. Second, become active in the ABA Law Practice Management Section, and your state bar’s similar section if it has one. And put on the pressure for more CLE credit for programs dedicated to improving practice management skills. With your help, we can make sure that no lawyer is “left behind.”

About the Author

Tom Mighell is a Senior Consultant at Contoural, a Past Chair of ABA TECHSHOW ® 2008 and Chair-Elect of the ABA Law Practice Management Section