Notwithstanding the increasing importance of technology, the practice of corporate law is--and is likely to remain for the foreseeable future--a human capital business. As a result, law firms must continue to attract, develop, and retain talented lawyers. Unfortunately, the traditional approach, which divides responsibility for professional development among law schools, which are supposed to teach students to think like a lawyer; law firms, which are expected to train associates to "be" lawyers; and corporate clients, whose job it is to foot the bill, is no longer well aligned to the current realities of the marketplace. In this Article, we document the causes for this misalignment and propose a new model of professional development in which law schools, law firms, and corporate clients collaborate to train lawyers to be lifelong learners in the full range of technical, professional, and network-building skills they will need to flourish throughout their careers. We offer specific proposals for how to achieve this realignment and confront the resistance that will inevitably greet any attempt to do so.
Table of Contents Introduction I. The Alignment of the Traditional Model II. The Misalignment of the Current System III. Resistances--and How to Overcome Them (or Not Throwing the Baby out with the Bathwater) A. If It Ain't Broke B. Meeting Resistance with Opportunity IV. Toward a New Model of Professional Development A. Law School Realignment: From Teaching Students to Think Like (Common Law) Lawyers to Developing the Leaders of Tomorrow 1. Leadership and professional skills 2. Enhancing student networks B. From Education to Work--Without Losing the Focus on Lifelong Learning 1. Increasing investment in talent development 2. Putting lawyer development on par with serving clients 3. Improving the development of technical legal skills and knowledge 4. Building leaders 5. Building related professional skills 6. Understanding and building networks Conclusion Introduction
Since 2008, there has been a fierce debate over the future of large law firms and the market for corporate legal services generally. Did the global financial crisis usher in a new paradigm in which sophisticated in-house legal departments armed with big data and artificial intelligence will fundamentally destabilize--and eventually destroy--the traditional model of the large law firm? (1) Or will 2008 end up looking more like prior recessions in 2001 and 1991, which, though certainly painful, did not fundamentally alter the basic structure and functioning of the corporate legal services market? (2)
One can tell a similarly Janus-faced story about legal education. Notwithstanding a slew of reports about "failing law schools" caught in a vise grip of falling applications and diminished employment prospects for their graduates, (3) only a handful of law schools have actually closed their doors since 2008. (4) More importantly, notwithstanding the downturn in applications, few law schools have undertaken major changes to their curricula--and fewer still to their teaching methods--instead preferring to reduce enrollment while tinkering around the edges of what and how they teach. (5) Christopher Columbus Langdell's model of legal education, with its emphasis on teaching students to "think like a lawyer" (6) through Socratic dialogue about appellate cases elaborating common law doctrine, is alive and well in the modern law school. (7)
In this Article, we do not seek to resolve these competing visions of the profession's future. Instead, we explore the implications of these cross-currents of stability and change for a key element that will affect the future of both law firms and law schools however these competing forces are resolved: namely, the training and development of new lawyers. Notwithstanding the growing importance of technology, the practice of law is--and is likely to remain for the foreseeable future--a human capital business. As a result, law firms must find ways to recruit and retain talent and to train and deploy that talent in ways that provide value to their increasingly sophisticated corporate clients. And while rules that currently limit the ability of "nonlawyers" (8) to share in the ownership of law firms or otherwise play a significant role in the delivery of legal services (9) may very well be relaxed in the United States, as they have been in the United Kingdom and elsewhere, it is nevertheless likely--at least for the foreseeable future--that the overwhelming majority of those whom law firms seek to recruit and retain will be law school graduates. This means that law schools, law firms, and corporate clients have a mutual interest in ensuring that the next generation of lawyers will have the skills and disposition necessary to be competent and ethical corporate lawyers in the increasingly challenging legal market of the middle decades of the twenty-first century.
The problem is that the model these parties are relying on to accomplish this goal is no longer fit for purpose. For more than a century, large law firms and the elite law schools from which these firms primarily recruit have maintained an implied division of labor, in which the law schools teach their charges how to think like lawyers, leaving law firms to teach graduates how to be lawyers. (10) This division, however, is no longer well aligned either to the institutional dynamics of law firms and law schools or to the dynamics of a corporate legal services market in which clients increasingly expect lawyers to function as multidisciplinary problem-solvers but at the same time are unwilling to pay for the training and development of junior associates. (11)
Given this breakdown, what is needed is a new model of professional development that aligns with the new realities of the legal marketplace. We advocate for a system premised on the understanding of shared responsibilities among all relevant stakeholders for the training and development of lawyers rather than one that divides responsibilities among law schools, law firms, and clients. It is only through this kind of inclusive and broad participation that law schools, law firms, and corporate clients can credibly promise the talented young women and men they recruit that they will not only become technically competent lawyers but will also develop into leaders with the broad-based networks they will need to build satisfying and successful careers wherever their interests and talents might lead them. And it is only if this new generation finds these promises both credible and attractive that law schools, law firms, and corporate legal departments will continue to thrive in a human capital business where the war for talent will only become more intense.
The remainder of this Article proceeds in four Parts. Part I briefly describes the traditional model for training lawyers developed in the early decades of the twentieth century and argues that the success of this model was due in large measure to its fit or "alignment" (12) with key elements of the market for corporate legal services during this period. Part II documents how a set of connected changes in the economy generally, and in the corporate legal market in particular, have destabilized this longstanding alignment, undermining the effectiveness of the traditional model of professional development. Notwithstanding widespread agreement on this point, however, most law schools, law firms, and corporate legal departments have resisted making significant changes to their traditional practices in this area. Part III explores some of the reasons for this resistance and offers strategies for overcoming it by underscoring some of the benefits law schools, law firms, and companies could reap by adjusting their human capital models to better align with the new realities of the markets for clients and talent. Part IV provides a preliminary outline of what such a new talent model might look like and how law schools, law firms, and companies could collaborate to create this new equilibrium. Finally, the Conclusion acknowledges the challenges facing law schools, law firms, and companies in the coming years as they continue trying to align their professional development models to a legal world that is likely to change even more rapidly in the coming decades than it has in the ones that have just passed.
We make two final points before beginning. First, throughout this Article, we refer to our experiences as professors at Harvard Law School (HLS) and our work in the research and executive education programs we have helped to create and run. We do so not because we believe that everything we have done at Harvard is perfect (far from it) or even that what we and the school have managed to do well should necessarily be a template for others. We are well aware that there are important differences among law schools, in terms of both their internal organization and their relationship to the legal market, that even those who are persuaded by our argument for a new approach to professional development should take into consideration in deciding how to proceed. We therefore offer our own experience as a relevant--but also cautionary--example of the challenges facing anyone seeking to move beyond the traditional assumptions animating the contemporary approach to professional development.
Second, we recognize that there are some in the legal academy and elsewhere who may oppose our new model of professional development for the corporate sector not because they believe that it will not work but because they are afraid it will. It is no secret that many believe law schools channel students into Big Law to the detriment of worthier areas of legal practice in government and public interest. (13) To be sure, many dispute this claim. (14) As with our general discussion about the future of large law firms and legal education above, we do not intend to resolve here the dispute over...