Wednesday, December 13, 2017

Why Do Lawyers Hate Their Clients?

I've been reading about my sociology PhD supervisor, Howie Becker. He's big in France, which is weird because he's the antithesis of theoretical. Unlike Bourdieu, Becker isn't sterile and formulaic. Instead he asks questions about how something is done. There's a rather nice article about him in the New Yorker, which for the English among you would be like being featured on Desert Island Discs. The reason for bringing up Howie is because he refers to his supervisor, Everett Hughes, the great Chicago sociologist.

Howie says, in the New Yorker piece:
“My dissertation supervisor, Everett Hughes, loved the idea that anything you see in the lowly kind of work is there in privileged work, too, only they don’t talk about it,” he says. “Later on, he went to the American nurses’ association and they hired him as a consultant, and he said, ‘Let’s do some real research: why don’t you talk about how nurses hate patients?’ There was a shocked silence and then someone said, ‘How did you know that?’

Of course, this applies across all professions. Doctors hate patients who come loaded with facts from WebMD who would rather self-medicate than take the doctors opinion. At least it looks as if doctors are doing something. You can get better with a doctor; you might even have a new heart.

Funeral directors aren't too keen on corpses either. An ethnographic piece on them (sorry forgotten the cite) showed how backstage FDs called burnt bodies, "Mr Crispy", and drowning victims, "Mr Blobby". And they were more emollient out front with the bereaved.

With lawyers it's almost the same but not quite. Yes, clients might do some research on what they need, but it is harder because legal language is so obtuse and strangled, even for lawyers. But more and more, clients are pushed into this position as legal services become expensive and over-priced for the majority of people. It's harder to see what it is that lawyers are doing for you. You could be free, but most likely you thought you were innocent anyway so no change there. Or, you have a nice, new, shiny fat contract that you can put into a draw and ignore.

Clients hate lawyers because they apparently fuck up your life (to borrow from Philip Larkin). They don't talk English. They talk down to you (because you are ignorant) and won't answer your questions. And all they want is your money but won't tell you how much until it's way too expensive, and you need to remortgage.

I use the example, with students, of going to buy an iPhone, and the Apple store clerk responding to your query about the price saying "I don't know. It might be anywhere between $500 and $1200, but by the time you get to the check out, I'll know and tell you." Not sure Apple would sell many phones that way, but lawyers with hourly billing think this is normal. It's normal for them but not for anyone else. There's just a hint of arrogance and hubris in that view.

If clients are cash cows to be milked for all they're worth, there can be nothing worse than a self-represented litigant. Now before decrying this crime against nature, try to realise that the SRL is probably there because (a) she can't get legal aid, and (b) therefore can't afford a lawyer. No wonder justice wears a blindfold. It's too painful to look at these poor victims being turned over by the lawyers and the judges who also hate them because they clog up the courts. For the lawyer it could be truly awful because the judge might direct the represented party to do the work for the SRL (for free).

It gets much worse, of course. With the move towards self-help, clients look for alternatives and now they are finding them. Legal technology companies are sprouting everywhere. Do it yourself divorce; do it yourself parking ticket appeals (with the help of friendly IBM Watson); do it yourself contracts, tenant agreements and more are all around us now.

To compound the errors these companies actually believe in User Experience and Design. UX is the opposite of what a lawyer should do, since it makes things intelligible for clients. How will you milk them if they control the milking equipment and can read the user manuals?

So there are plenty of reasons for lawyers to hate their clients. And I'm not excluding corporates here. General counsel have been getting far too uppity for their own good demanding budgets from their lawyers and, worse, bringing in their procurement departments to help price legal services.

I watched the Amazon Prime series, Goliath, recently. Don't bother as it's not that good and I only watched the whole of it for research. I'm good at suffering like that for my work. Usual thing of brilliant lawyer, a drunk, dropped out of his BIG law firm, and takes a client who is opposed by big corporate defended by said BIG law firm. Now the senior partner (William Hurt who must have been hurt to play this role) with many dark secrets and a Weinsteinish way with his female partners and associates, not only runs the case for his corporate client (nasty arms manufacturers) but commands the CEO and General Counsel not to contradict him. When the CEO and GC argue for settlement, Hurt simply says no and they roll over for him. It's fantasy but I can imagine many lawyers pining for the good old days when they commanded. Now they follow.

So, if you don't hate your clients, there's something wrong with you and you better get it checked at the local shrink. But don't worry he'll hate you too.


Saturday, December 02, 2017

Law's Missing Institution (Mind the Gap...) A Manifesto for New Ideas in Law

(thanks to

This is a picture of Hong Kong Science Park in the New Territories. It's a tremendous place and I visited it in October while visiting at the University of Hong Kong Faculty of Law. I had gone to see a blockchain startup there, but the visit made me think about why there were no law startups or businesses in the park.

My thoughts here, then, relate to a legal education conference I'm attending at UNSW, an interview on legal education with the Australian Financial Review, and an earlier post on the uberization of law.

Let me start in the mists of time...when the American Bar Foundation was trying to articulate its rationale, the director asked the question: why isn't the ABF the Bell Labs of law? It's a great research institution but it's not Bell Labs, nor should it be. It doesn't create spinoffs and it's not a think tank. But we might need other institutions to take on these roles.

I don't know what to call such an institution, but I can tell you why it's needed and what it should do. We have a massive gap in legal education and it's not purely the fault of law schools. I lay the blame on legal regulators and the judiciary who have virtually no experience in education and therefore should have no role in it. But still they are deferred to whenever the topic of reforming legal education arises.

I should add that what I propose is different from Bill Henderson's idea of a College of Legal Operations, which is based around a series of boot camps to fill gaps. I think there's a much bigger gap to fill and it's not just to do with teaching certain skills although they are necessary.

I would base this new institution in a Science Park, not a downtown office near the law firms. The reason is simple; I want the expertise of people who are dealing with ideas every day, not just those who are in business. They are important...yes.

The new institution must have three roles: first, it must engage in research and development (R&D). Law is terrible at R&D because lawyers and law firms have such short term visions about their work. When it comes to R&D in the cutting edge of law, especially technology and cognitive science and the like, law schools tend to fall behind. The reasons are that they are on the whole narrow minded about their remit, averse to interdisciplinary work unless it falls within a narrow remit, and find it difficult to think in "scientific" ways, which makes the interdisciplinary work difficult. I have reviewed countless numbers of law research grant proposals to American, Australian, Belgian, British, Dutch, and Danish research councils (which means I've forgotten the others). There have been tremendous ideas for research therein, but when they fail, they fail for a particular reason. They can't do methods. Lawyers go all wobbly when they think of methods and it shows. Lots of work to do here.

Second, the new institution must be a think tank. And by this it must engage in public debate and put ideas into the public forum. There are some organisations that do this. For example, UCL's Constitution Unit. But there's no equivalent in law of Brookings or Chatham House, and I suspect this is because lawyers think they have such close connections to power and the state that they simply don't need institutions. They do and so do the public. Policy must be informed by research that challenges conventional wisdom, so we need to go beyond the remits of law reform commissions into areas that potentially don't yet exist but will. Rights for robots is one such area. Will autonomous drones that kill civilians be able to invoke the Geneva Conventions? Caring robots in Japan will want to inherit property and not be switched off. What about land mine detection robots? Can we countenance their injuries? Stupid I'm sure to some, but...

Third, it must teach and impart new skills to law and other graduates for labour markets that will be very different from the closed and monopolistic ones that currently exist. In some ways this bit is close to Bill's college. Ideally though this should be an institution for all levels of the legal market or law, from junior to senior. The senior cadres of law are some of the most restrictive and repressive elements in law. Senior partners in law firms have virtually no incentive to change anything, especially if it involves investment. That means making less money this year...anathema. Admittedly, institutions like Harvard Law School's program for law firm leaders is waking them up but in fact it perpetuates the status quo rather than challenge it. That's not to say law firm leaders don't return home with new ideas, but I have yet to see a law firm truly and really change. Adapt yes, but what if there's a Cambrian explosion?

All three segments of the new institution must cooperate with each other. And, in fact, I'd make the faculty engage in all three sectors.

Some will say I've been on the fringes too long, in wacky programs like Law Without Walls, The Legal Forecast, and Legal Hackers. Certainly I have colleagues who think that way and place me beyond the pale. I disagree of course. We are living in interesting times: blockchain is about to fundamentally change our interactions on the internet; quantum computing will make security an even more hazardous environment; and artificial intelligence is already having deleterious effects on associates' training (or otherwise known as: what training?).

Let me put it the other way. Too many legal academics and lawyers have not ventured into the outerworlds. They are frightened of encountering savages so perhaps a dose of soma is preferable. I'm not sure we can change their minds. If not, then don't waste time. It's time to create new cohorts. But I'm reminded of an earlier story than Brave New World (1932). It's E M Forster's The Machine Stops (1909). In this 12,000 word story Forster shows what happens when people unthinkingly rely on technology to live their lives. It is chilling and prescient. Both Huxley's and Forster's stories are warnings about not facing up to challenge and new ideas; they are stories about conformity versus radicalism. And conformity doesn't come out too well.

For too many years lawyers and the law has enjoyed a monopoly. Has it justified that monopoly. Maybe at times, but not now. Technology is providing us with new ways to create, practice, and consume law, and lawyers don't have to be the only players.

I have a manifesto. I want to break law out of its current antediluvian mindset. Yes, I could move incrementally, but I believe we are in the same position that Europe was in 1848. Revolution is necessary and new institutions are essential to guide the way.

Disclaimers: I own cryptocurrency. I advise blockchain and legal startups. I am a proud Estonian E-resident.


Monday, November 20, 2017

Trust, Anarcho-Capitalism, Blockchain and Initial Coin Offerings

(with thanks to Business Insider)

While I was at University College Dublin I stumbled into something called Bitcoin and blockchain. It sounded strange and slightly whacky to me and I almost ignored it. Something made me persist and so by the time I arrived in Brisbane I knew a little more. And here I stumbled a bit more into a community that talked blockchain. There were developers (mostly unintelligible), lawyers, and entrepreneurs.

I've come some way since then. I give talks on blockchain. I sit on the advisory boards of a number of blockchain startups, and recently I co-organised a conference on blockchain. Recently I was part of a seminar that discussed blockchain with Australia's financial regulators at UNSW in Sydney. The paper below started life at that seminar. It comes out of a project I and collaborators are doing on Initial Coin Offerings (ICO). These took off in a huge way in 2017, raising several billions of dollars in funding. Regulators panicked as in China which forbade them. New Zealand said all cryptocurrencies were securities (I wish someone could explain that one...). Our project has been creating a database of ICOs and we have over a thousand in it. We aim to analyse them quantitatively and qualitatively, and that will be the subject of our next paper.

My co-author, Lachlan Robb, and I have posted our paper, "Trust, Anarcho-Capitalism, Blockchain and Initial Coin Offerings" on SSRN and we invite your comments and critiques. The abstract is below:

"Blockchain--distributed ledger technology--is seen as heralding what some call the internet of trust because it provides an immutable chain of authority that is difficult to hack. Satoshi Nakamoto created an algorithm that required immense amounts of computing power to solve cryptographic problems that when resolved would create consensus throughout the blockchain community by rewarding miners with Bitcoin and prevent the "double-spend" problem. Trust, in either one's opposite party or intermediaries would be unnecessary. The cryptographic work made trust redundant.

Unfortunately, Satoshi could not predict how the blockchain community would behave once the software was launched into the community. Trust became the core issue as different factions among developers and miners squabbled over changes to the software. Trust is also deeply implicated in the ways the community uses blockchain to raise money to fund developments through initial coin offerings (ICO).

In this paper we trace how this these issues emerged in blockchain's short history. We use arguments over block sizes, transaction fees, and hard forks, and the process by which ICOs are run to exemplify our account. We contextualise our story by examining the history of blockchain. Blockchain seems so recent that it doesn't really have a history, but in fact it has a long history stretching back to the Austrian School of Economics. We argue that blockchain can trace its philosophical roots to the anarchy-capitalist strain of the Austrian school. Anarcho-capitalists believe in peer to peer contractual transactions as the foundation for society, They abhor collective action even that which includes the defence of the realm. Dyadic collaborations are sufficient for a society to survive by. Theorists such as Murray Rothbard and Leland Yeager promoted these views in the second half of the 20th century. Satoshi's paper was published in the Great Recession (2008) and incorporated this philosophy. As the blockchain community has developed distributed ledger technology these basic philosophical tensions have surfaced causing dissension and strife. It has all come down to a fundamental issue: who do you trust?"


Tuesday, October 17, 2017

Democracy, Voting and the Blockchain....Digital Democracy....

Right now Horizon State is running its Initial Coin Offering (ICO). Horizon State is a "token-based blockchain voting and decision-making platform that delivers unprecedented trust through the integrity and post-unforgeable attributes of blockchain technology." Or in other words it's a digital ballot box.

Horizon State is the second Australian ICO after PowerLedger, a P2P blockchain trading platform for energy.

My disclosure here: I am a member of the advisory board of Horizon State and very proud so to be. This is one of those projects one can believe in.

The central problem addressed by Horizon State is that voting and elections are centralized and opaque. We have no way of knowing if our votes have been registered, taken account of, or just thrown away. Think of the Kennedy-Nixon presidential election--it was said that Jack Kennedy won because the Mayor made the graveyards of Chicago vote early and often. That's clout....

With blockchain voting becomes transparent and secure. Once you've voted the vote can't be altered. If there is a hacking attempt, it leaves a trail. You know your vote is recorded in the right place so the technology itself creates a system of trust which traditional voting never quite achieves.

Paper is delicate: it suffers in fire and water or simply being put in the rubbish, and it's slow and can get lost. Even electric voting machines aren't safe. DEF CON hackers in 2017 took less than 90 minutes to hack into standard US WinVote voting machines and take control. (They were still using Windows XP. Sounds like the hacks into the NHS computers--XP again.)

We've had good reports of the project. Smith + Crown said "...while its peer companies remain focused on creating a working prototype, Horizon State has begun to develop its vision of creating an ecosystem that can fundamentally shift the way voters inform themselves and relate to the democratic process more broadly. While this approach will likely be emulated by other companies, Horizon State’s advance could be enough, at the very least, to ensure it a considerable stake in what will almost surely become a sizeable market."

Forbes has run an interview with the CEO, Jamie Skella, which puts the point directly:
Horizon State is utilizing distributed ledger technology, otherwise known as blockchain, to deliver a digital ballot box that cannot be hacked. Sharing all of the technological benefits that makes Bitcoin possible - being verifiable transactions of value without a bank - we are using blockchain transactions as votes, while still maintaining anonymity of the voter. The end result is a system that is quicker to orchestrate than traditional voting methods, more convenient for voters which reduces apathy, and far cheaper than centralized, physical voting processes. What is costing Australian tax payers AUS$122 (USD$95) for a marriage equality postal vote would cost in the vicinity of AUS$2 million (USD$157,000) using our system. This equates to a cost per eligible voter of less than $1, instead of $7, or more.
Next year I'm running a new course for law students at Griffith called "21st Century Legal Practice: Professions, Disruption, and Technology" and blockchain technology will play a significant part in the course. Of all the technologies, it is probably the one that lawyers, and people generally, understand least. Time to move law from the 19th to the 21st century then.....


Tuesday, September 26, 2017

Professions and Narratives: Can They Reconstruct Their Futures


I have put up new paper on SSRN titled: "Professions and Professional Service Firms in a GlobalContext: Reframing Narratives".

The abstract reads:

Professions are changing rapidly and profoundly as new technologies, organisational forms, and regulations are introduced into the professional world. As a result, professions are creating new narratives to stake their legitimate claims in the world and justify their positions. This paper examines some of these narratives in the contexts of organisation, globalisation and technology among others. The legal profession is used as a case study of change.


Thursday, June 22, 2017

Back in the USSR...Russia Actually

(thanks to

In this photograph I'm comparing glasses with another delegate at the St Petersburg International Legal Forum. Actually we were at Legal Street, an event held by the Forum and the Russian Ministry of Justice and were being shot by a fashion, as you do.

The last few months have been active, especially in the area of law and technology and new directions for the legal profession. Three events in particular stand out. First is the Law Without Walls ConPosium in Miami; second is the JDHorizons symposium in London; and finishing up with the VII St Petersburg International Legal Forum in Russia. All quite different but with themes in common running through them.

I've written extensively about LWOW in this blog as I have been involved since its inception in 2011. What I will add to my previous comments is the dramatic growth in the students' skills and talents in formulating their projects. In the early days projects would often involve an innovative web portal that enabled people of different kinds to interact. In a couple of projects this year we had students creating chatbots to interact with their audiences. We have students using ideas based on games to coach people in new areas. Their creativity is dazzling. LWOW has now developed an incubator to help develop the winning projects.

LWOW is one of the growing number of programmes that show legal education can't remain trapped in the 19th and 20th centuries, merely based around doctrinal law. New courses such as Iron Tech Law at Georgetown and Law Apps at Melbourne use the Neota Logic platform to develop legal apps targeted at specific problems. Michigan State Law School has LegalRnD for legal services innovation. There is still enormous resistance from conventional law faculty to these types of courses, but among students, when offered them, the clamour for them is strong.

JDHorizons is part of a series of annual events held by Janders Dean, a law firm consultancy. What is unusual about Janders Dean is the way it combines the worlds of practice and academia. Each gets an opportunity to speak to the other, which, as an academic, is so enriching. We had socio-legal scholars, psychologists, lawyers, among others. It means one can be cross-disciplinary as well as cross-professional. Janders Dean is also involved in LWOW.

The VII St Petersburg International Legal Forum is different from the other two. The forum had 4,000 delegates from 70+ different countries. It is as much a forum for networking as it is for exchanging ideas. I was originally invited for one session but ended doing three. The forum is organised by the Russian Ministry of Justice each year on a distinct theme, which for 2017 was law and technology.

I was originally invited to participate in the Plenary session with the Russian Prime Minister, Dimitry Medvedev. Our panel was unusual in that besides myself we had the head of the Swiss Parliament, the CTO of Aliexpress, the head of the UCL Blockchain centre, a co-leader of IBM Watson. The central theme was the disruption of law and legal practice by technology. In particular we discussed how artificial intelligence and blockchain were radically altering our approach to business, life and the professions. (We had a two-hour lunch afterwards with the Prime Minister and the Justice Minister where we carried on these discussion. I have never had such extensive and intensive conversations with politicians before who clearly knew what they were talking about.)

The following two days I talked about law as algorithm as well as the future of legal education.

Normally I don't go to conferences like this. But I am glad I did attend. I had the opportunity to meet with and talk with a range of people, lawyers, academics I might miss. I gained an enormous amount of knowledge and contacts in St Petersburg. (Plus, it is one of the most beautiful cities I've visited.)

In these days of interdisciplinarity academics need to step out of their normal worlds and experience new things, ideas, and forums. It's the necessity to be experimental and innovative. It can be challenging, when over many years one has built expertise and knowledge in specialised areas, to come to grips with new spheres of knowledge where one isn't the expert. We also need to transmit this through our educational systems.

I will admit too as a legal sociologist something like the St Petersburg International Legal Forum is a great opportunity to observe other worlds and try and understand their folkways and rituals.


Wednesday, January 04, 2017

Future of Legal Services and Legal Education?

When one starts thinking about the intersection of legal services, the legal profession, and legal education, I honestly don't think it's too far removed from the Venn diagram above.

On 13 December my good friend, Julian Webb (and also Paul Maharg), organised a legal services forum at Melbourne Law School to bring together academics, policy makers and practitioners to discuss the challenges of the future of legal services and how we should research them in order to be able to meet them. Richard Moorhead came from London to give a plenary address and I moderated a panel on technology and innovation in the sector. Fortunately, the school videoed the proceedings and you can see the videos here. Happy viewing...


Monday, January 02, 2017

Rule of Law and Legal Education: Do They Still Connect?

I've put a new paper up on on the rule of law and legal education. The introduction reads:

When we connect legal education and the rule of law it has two connotations: to what extent should legal education be protected by the rule of law, and to what extent should the rule of law be taught within legal education. It is not difficult to see how both connotations could cause problems in certain countries where the rule of law might exist in a different form. For example, China is becoming a rule of law-based country in respect of its commercial and intellectual property rights. Yet its record on human rights and the due prosecution of them is abysmal. The rule of law like most legal rubrics is slippery and tends to avoid easy definition (May 2014). Jeremy Waldron captures this when he says “…people’s estimation of the importance of the Rule of Law sometimes depends on which paradigm of law is being spoken about (Waldron 2012: 9).” For Aristotle safety was located in customary law and for Hayek it was the evolutionary development of the Common Law (id; but cf. May 2012). Tom Bingham’s idea of a thick definition of the rule of law has appealing since it is elastic and has an anthropological intuition about it that maintains a connection to community (Bingham 2010). In contrast to Waldron who would keep the rule of law at a meta-level rather than a substantive one, Bingham includes specific instances of rule categories such as, notably, the Universal Declaration of Human Rights in which the right to education is enshrined (id: 83).

In this chapter my focus is not so much on the theoretical debates surrounding the rule of law but rather how it is implicated and treated in the developments of modern legal education and practice. I first analyse the changing legal world for which the salient period is the post-World War II to the present. We have the rise of the international and transnational institutions and the emergence of the modern, organization-based, and increasingly financialised, legal profession that plays a significant role in globalization. To provide the labour force for the profession the academy’s role has come to the fore and is now the main gateway to the legal profession. Even with its duality of roles as reproducer and gatekeeper, the academy is now more remote from the profession. This in part reflects a desire on the part of the legal academy to be a more academic and intellectual member of the academy than hitherto (Cownie 2004). The rise of subspecialties within law marks this shift as does the increased number of law professors with PhDs, often in other disciplines. The increased tensions between the academy and the profession have fostered argument over both the content and structure of the law degree. One might almost ask if the issue is not so much the rule of law but the rule of lawyers. Finally I examine some of the challenges for legal education—such as the rise of legal technology—that will have enormous effects on legal practice and the rule of law, especially where it abuts access to justice.

My approach to the topic is essentially sociological, which means I ask under what conditions would the rule of law be promoted or diminished and by whom? In this respect I look to the legal profession, courts, and legal academy as key players. By this I mean they are crucial to the design of the legal system and its implementation. The relationship of the legal profession to the state or market can signify to what extent lawyers might be viewed as radical or conservative in their approach to legality and juridical questions (Rueschemeyer 1973). For example, Weber (1978) saw the English legal profession as a craft-based profession with relatively little input from the academy. The development of the common law therefore depended on the creativity of practitioners who became used to devising solutions to problems as they arose. In the absence of a legal code, lawyers innovated in law through an ad hoc process. On the mainland continent, and in many other countries, the civil code system depended on commentaries by academics that kept the law in tune with its primary principles. This resulted in a different but less innovative law making. Thus, for example, whereas in Germany pfandbriefe are creatures of statute, in the UK they were created by contract using common law principles (Flood 2007). The alliance between the state, academy, and legal profession is much stronger in code systems whereas common law jurisdictions are typically associated with the market and so depend far more on practitioners.