INTRODUCTION
By all accounts, Willi Steiner was a remarkable man. If law librarianship did not exist as a profession outside the US when he fell into it (in his own words, “by accident and not by design”Footnote 3), then when he died in 2003 at the age of 84, it certainly did – and due in no small measure to his own contribution. From his birth in Austria, through his impressive and humbling multilingualism, through his law degrees and call to the Bar, to his positions as a professional librarian as well as a founder member, President and life member of this Association, his many achievements are truly outstandingFootnote 4. And yet, like so many great people, he was a modest man with a notable generosity of spirit.
Willi Steiner was an innovator, for whom collaborating, cooperating and making connections came naturally. I have no doubt that he would have relished the themes of the 2015 Conference. It is an honour to give the 2015 Memorial Lecture.
My focus seeks to build from the conference themes of collaboration, cooperation and connectivity, and look at how evolution in both the commercial and regulatory influences on legal services are re-shaping the context and structures for the delivery of legal services, and the education of those who provide them. I then consider, as a consequence, how this evolution is in turn re-shaping the role of information professionals who have chosen to devote all or part of their careers to the world of legal services.
COMMERCIAL EVOLUTION
Perhaps the most profound commercial evolution in legal services in the past 30 years has been the emergence of law as a business. Though numerically still dominated by sole practitioners and small firms, economically the market has been transformed through the creation of ever-larger law firms. The era of the small, local, general practice has been superseded by the age of large and very large multinational giants and specialists.
This has resulted in significant ‘polarisation’ of law firms, where the difference and distance between the smallest and largest firms becomes ever greater – not just in size, but in terms of types of work, types of clients, geographical reach, types and mix of people employed, and methods of delivery, as well as in ownership, financing, structure and governance.
Client demand has altered fundamentally across all sectors of the market. Public funding for legal aid has shrunk in both scope and amount. Consumers have more choice, more power and more protection. As fees have fallen and competition increased, small local firms have often turned their attention to high net-worth individuals and small and medium-sized business owners, who in turn now also have more choice and more power.
At the other end of the spectrum, large corporates and other private and public institutions – and their increasing numbers of in-house lawyers – have seized the upper hand in determining how they want their law firms to staff, deliver and charge for their services.
These forces have also affected the make-up and function of the Bar, as well as the financial viability of certain types of practice or legal activity (such as publicly funded crime). They have also created opportunities for legal executives and licensed conveyancers, as well as fuelling global expansion.
In this world, no longer is ‘management’ quite such a dirty word: it is everywhere – in finance, in projects, in cases, in costs, in staffing and in structure. The drive for cost-efficiency, market share, mergers, and geographical expansion demand the discipline and accountability that good management brings.
Yet, despite all this professionalisation of business and management, we still have not yet seen the development of a true focus on the needs of the market, clients or customers. Notwithstanding significant growth in the number of lawyersFootnote 5 and the turnover of law firmsFootnote 6, and the associated competition, there still remains massive unmet legal need, and the cost of legal services is still too high for large parts of the private client and small business communityFootnote 7.
My explanation, at least in part, for this ‘disconnect’ between the evolution of law as a business and the continuation of unmet need and prohibitively high fees, is that the evolution is far from complete. Arguably, the real disruption has not yet started in earnest.
Although there is a large market for legal advice and representation – and potentially a very much larger one – the work that has to be done by lawyers is quite limited. I will return to this point when I look at regulatory evolution. Suffice to say for now that the development of a broader market where lawyers are less in evidence (and less in control) is only just beginning.
Commercial innovation started blurring the geographic boundaries between jurisdictions many years ago. It was closely followed by computer processing that is still changing the dynamics between cognitive and technological interaction. Now, we see a further blurring of the boundaries between law and other professional disciplines and businesses.
These challenges lead to two stark shortcomings. The first is that law firms have been operating a flawed business modelFootnote 8 (and, to some extent, many still do). It is a model that places more value on inputs – and particularly time – than on outcomes for the client. It has too much emphasis on qualified lawyers, whether as providers of the service or as owners and managers of the business. It has relied far too much on financing through debt, and denied for too long even the possibility of access to other sources of capital. And finally, it has shamefully encouraged the annual stripping out of all profits as current income, without any provision for a rainy day, for investment, or for capital growth and realisation. In any modern market economy, such a business model is inevitably doomed to failure.
The second shortcoming – which in some ways must also bear historical responsibility for some elements of the first – is that the regulatory framework for legal services has not been fit enough for purpose either.
REGULATORY EVOLUTION
Let me confine my thoughts about regulatory evolution to this century. By 2001, it was clear to many – including the Office of Fair Trading, the government and the European Commission – that the foundations of the self-regulation of professional services were inadequate in serving the needs of society, consumers and even the professionals themselves.
In the world of law, the Clementi Review of 2003–4Footnote 9, followed by the more permissive Legal Services Act 2007, heralded a major shift in legal services regulation. This shift would separate regulation from professional representation, improve the handling of complaints against lawyers, and allow innovation in the ownership, financing and management of businesses providing legal services.
This regulatory liberalisation enabled a number of commercial developments hinted at earlier in terms of new providers, new delivery methods, and new forms of ownership and financing. But these reforms have come at a price. The ‘regulatory maze’Footnote 10 that Sir David Clementi was keen to address in 2003 has arguably been replaced with another. We now have an oversight regulator (the Legal Services Board) and 10 front-line regulatorsFootnote 11, some of whom regulate the same activities and in some cases even the same people. It is difficult to believe that such a structure does not impose unnecessary duplication, cost and burden.
It is also an approach that is not much admired in other major jurisdictions, including the United States and many parts of Europe, with which UK companies do business. In part, this is because the Legal Services Board is not thought to be sufficiently independent of government (a false perception, as it happens). But more importantly, the 2007 Act allows those who are not lawyers to own and invest in law firms, and to many US and continental lawyers this is (almost literally) sacrilegious. Their opposition is based on the premise that those who are not lawyers will inevitably compromise the quality and ethics of those who are. Such a view is, to my mindFootnote 12, not only insulting and not supported by any evidence, but it also conveniently ignores the thousands of lawyers who have been struck off for unethical or even criminal conduct!
Nevertheless, the Legal Services Act was necessarily a product of its time, and was based on some flaws and compromisesFootnote 13. These principally relate to what has to be regulated (namely, just six reserved activities that can only be provided by appropriately qualified lawyers or licensed entitiesFootnote 14), which for most law firms represent at most 20% of the work they do. What follows from this is the gap in regulation that is created when legal services that are not reserved are delivered by individuals or entities that are not legally qualified: those individuals or entities are beyond the reach of sector regulators, and there is no protection or redress available to their customers. The structuring of the Legal Services Act around the reserved activities and professional titles creates some significant constraints in an increasingly liberalised and multidisciplinary market.
The Act also contains some regulatory objectives that are impractical (such as improving access to justice and what is usually referred to as public legal education). As well as sowing the seeds for the incomplete separation of regulation from representation (because the Act refers to the approved regulators rather than the front-line regulatorsFootnote 15), it also embodies too much prescriptive detail relating to the regulation of non-lawyer owners and investors (particularly in Schedule 13).
It is difficult to predict when either or both of the commercial and political forces will create irresistible pressure for substantial changes to the Act. But I can say two things. The first is that Sir David Clementi himself envisaged a two-stage process, so it would not be unreasonable to expect that the foreseen limitations of the 2007 regulatory settlement should lead to an acceptance of the need for further reform. The second is that the regulators have themselves, collectively, looked at the possible options for legislative reformFootnote 16 in a process that I have been honoured to chair. This will most likely conclude in a submission to the Ministry of Justice before this summer's Parliamentary recess.
THE RESULT
The outcome of the still-dominant, but variously flawed, business model of current legal practice, combined with the flawed regulatory settlement of the Legal Services Act, must surely be further change in the structure, regulation and delivery of legal services. For some, this will be seen as a welcome opportunity; for others, it will represent further unwelcome uncertainty and pressure.
These opportunities should cause us to reflect on some absolutely fundamental questions, includingFootnote 17:
(1) What is ‘the Law’, what is its purpose, who is it for, and what legal services need to be offered to which consumers?
(2) Who ‘does’ the Law? What should be the appropriate mix of lawyers and others who are not legally qualified (whether in a client-facing or business support role)? And to what extent do those people need to be inside the business or can they be contracted externally?
(3) How and where should the Law be offered: in person or remotely; by virtuosity or process; domestically or globally; on-shore or off-shore; by fixed fee or variable pricing; by reference to cost of inputs or value of outcomes; and so on?
(4) How should the lawyers of the future be ‘formed’? What and how much education will they need, and when? How do we best ensure appropriate socialisation, and the development and maintenance of professional ethics, standards and integrity?
These are not insignificant questions, and our answers to them will have profound implications for the structure, management and support required in the future.
IMPLICATIONS FOR THE INFORMATION PROFESSIONAL
Which brings me to, perhaps, for information professionals the most interesting part of this paper and, for me, perhaps the most challenging! What are the likely implications and consequences of these evolutionary forces for information professionals?
I shall start my adventure here with what strikes me as the most obvious. Law firms, and public and educational institutions, must continue to adapt to pressures on their cost base and to the changing expectations of the users of library and information services. As they do so, the shift from print to digital, and from physical resources to remote and virtual provision, must surely continue. Along with this, procurement will no doubt continue to move increasingly from purchase to licensingFootnote 18.
In the world of the librarian and information professional, it seems to me that there has been and will increasingly be, an evolutionary shift from the acquisition and classification of physical stock to the better ability to access and manipulate information, increasingly by or through technology. It is a shift from ‘just in case’ stock collection to ‘just in time’ accessFootnote 19. This also brings a further validation (if any were still needed) of the role of the librarian and information professional as a front-of-house source of expert help and guidance rather than a back-office purchaser and curator of acquired materials.
But let me now turn to what might be less obvious – although I might be surprised if many BIALL members had not already had these thoughts. I have four principal themes here.
First, I have felt for many years that there is a danger in seeking somehow to separate or objectify information and knowledge. This can manifest itself in precedent banks and ‘knowledge management systems’. It is an approach that collects and makes accessible either or both of standard-form precedents and previous work product.
But how often does that precedent throw in the kitchen sink, and lead to lack of thought and ever-extending boiler-plate documents? And how often are lawyers then reluctant to take anything out for fear of something they have not thought about? And how often does that piece of work product reflect the particular circumstances or relative bargaining power of the parties which, in other transactions or relationships, could be positively dangerous?
Arguably, something is indeed better than nothing; but without (usually non-existent) extensive guidance notes, this supposedly helpful information and knowledge can be dynamite. How does the role of the information professional then sit alongside or in relation to that of the practitioner and professional support lawyer? Who bears the primary responsibility for collecting and making available, and guiding users to, the most appropriate and relevant material?
This type of knowledge management can only complicate and raise the stakes in the respective professional responsibilities of practising lawyers, professional support lawyers, and information professionals. Indeed, what it suggests to me is that it might be better to switch our terminology from ‘knowledge management’ to ‘knowing management’Footnote 20. This would focus less on the separate, objectified documents and materials. It would focus more on making connections to and among the relevant human beings who can contextualise and supplement those materials and, in so doing, explain and add colour to them.
Arguably, this is all more about information professionals playing a leading role in the creation and maintenance of ‘communities of practice‘Footnote 21 that encourage and support learning that is situated, contextualised, and immediately relevant. Such a role becomes more acute and more necessary in a legal world which has blurred boundaries between lawyers and others working alongside each other in the delivery of legal services. So too is it more acute and more necessary in a legal world where clients' expectations of value and how legal services should be delivered place more burdens, greater complexity and shorter timescales on their providers of those services.
Second, in preparation for this more ‘knowing’ world, we need to have front and centre that legal education and training is no longer about the acquisition of technical legal information (and in fact has not been so for many years). Rather, it needs to be framed more in terms of understanding legal concepts, effective legal research, the proper handling and application of the results of that research, and the ability to articulate those results persuasively either orally or in writing. There is another leading role here for information professionals in developing and reinforcing those skills in others.
Third, as the regulatory framework around legal practice, and the education and preparation for that practice, becomes more permissive and less prescriptive, helping lawyers and their organisations address the complexity of regulation and the fluidity of outcomes-focused practice adds to the opportunities for professional information support.
Finally, we can take the notion that 21st century legal practice is not simply about technical legal knowledge and extend it to encompass contextual application and practical nous. It seems to me to follow that the knowledge set and access to knowing should extend beyond pure law to markets and clients. We should never underestimate the value of understanding the market influences that affect clients (at least the key ones), as well as mining the publicly available and internal intelligence about specific clients. Such intelligence allows the better contextualisation and anticipation of clients' legal, inter-disciplinary and multidisciplinary needs; it adds value to the services offered; and it adds dimensions to the lawyer-client relationship and the building of those relationships that is still all too rare in this supposedly client-centric era.
The collation and use of this type of market and client intelligence is time-intensive as well as time-sensitive; it requires skills of research and presentation that few practising lawyers possess but which plays so well to the core competence of information professionals. Indeed, this goes some way beyond traditional legal materials and sources, and offers broader opportunities for imagination and innovation in information services in law libraries.
There is much here for the information professional to conjure with in forging new ways of supporting practising lawyers, law academics and law students. No doubt you will also all have realised that there are three things which underpin all of them: cooperation, collaboration, and connectivity.
CONCLUSION
The homogeneity that characterised lawyers, law firms, law schools, law libraries, and legal services in the 20th century is being disrupted by processes of evolution and innovation in structure, practice and regulation that I described earlier. So too, therefore, is the world and life of law librarians and information professionals. Just as Willi Steiner shaped and re-formed the role and position of law librarians in the 20th century, so now is there an equal or even greater opportunity to shape and re-form the role of the information professional in the 21st century. The evolution is potentially a revolution; the implications are profound; the opportunities are unbounded. As the multi-linguist we honour today might have put it: Carpe diem!
