Wednesday, November 28, 2018

Barristers' Clerks: The Middlemen of the Law


Years ago, 1983 to be precise, a young and precocious academic published his first book. Barristers' Clerks: The Law's Middlemen has had a varied and storied life.

As it's out of print I have let it be downloaded for free from my website but that's out of action until I redesign it. So I have transferred the book to my SSRN page where you can download it.

If you don't want to do that, it's available on Amazon for £450! Here's the abstract from SSRN:

This is the text of the original book on barristers' clerks published in 1983. It is long out of print and Manchester University Press have assigned me the copyright.
This is the first piece of research I undertook in my academic career. It's an ethnography of a small but vitally important group of people who work in the British legal system. Most barristers work in units called chambers in which, though self-employed, they function as an organisation. In order to make this work barristers' clerks run the chambers. They do a variety of tasks: organise diaries, negotiate and handle fees, and advise barristers on how they should manage their careers, suggesting when to move into a new area of practice or become a Queen's Counsel (take silk).  
Barristers' clerks aren't formally qualified and have no legal training, but they know a lot about law and operate across the system to make the courts, trials, etc, work on time and in budget. They are experts in managing the system. I organise the book along the lines of relationships clerks form with salient others. These are their relationships with barristers; with solicitors; with the courts; and with each other which includes the role of favour banks.
The research is an anthropological study in which I spent time in a number of chambers observing and eventually participating as a clerk myself. Although the work predates computers and all, it still has relevance for the way the Bar operates. 
The book has had its own career independent of me. I first became aware of this, when on my return to England, I went to a Bar Council conference and saw some barristers' clerks on a panel. Struck by their thoughtful approach to clerking I asked for their help thinking I could update. I discovered they were using my book as the basis for their papers and moreover some were using it as a training manual for junior clerks. To have this kind of confirmation of the accuracy of one's work is unusual, but immensely satisfying. So I am making it available here.

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Tuesday, November 13, 2018

Are professions merely a set of outcomes? Where Susskind got it wrong.



Richard Susskind has recently published a short paper arguing people don't want professionals, they want solutions and answers. The paper then criticises professions for being more concerned with themselves than the people they serve. All in all, there is little wrong with this except the hoped for outcome--an outcomes-based set of professionals--won't happen.

Susskind is first and foremost a lawyer and a technologist. He isn't a sociologist which is why I forgive him his sins. In the paper he takes an extreme instrumentalist point of view that sees professionals as problem solvers. If this were the only issue, the problem perhaps could be solved, but of course it isn't.

When we study work in society it is more than the sum of the economic returns it brings to those who toil. Work involves values, culture and social meaning. For example, there is a clear value choice, or even a moral one, between someone who elects to become a social worker or a teacher compared to someone who chooses private equity or hedge funds as their home. Neither is wrong but it's evident there is a clear distinction in values here that can't be explained only by outcomes.

Moreover, people join different groups because of the cultures of those groups. One of the successes of the British army compared to the US army, according to some sociologists, is the adoption and strength of the regimental system. It creates a common culture among different groups; they have a common totem if you like, which has thrived over many years. Doctors also have this in the distinctions between surgeons and internists. Each group has distinct historical roots and has undergone different struggles to be where it is today. To talk only of outcomes is to collapse and telescope hundreds of years of history and social development.

When these groups are together they form tight social units that share common language, habits and values. It doesn't matter if we disagree with these values and habits, they are there. They are what give groups, professions, their strength. I don't just choose to become a lawyer or a doctor. I will actually think about what sector do I want to join, where will I fit best, where will I make the best use of my talents. It doesn't mean values, etc, don't change, they will.

Back in the 1980s Thatcher attempted to enforce her ideologies on the professions. She was successful in starting a movement that essentially diminished self-regulation in favour of external and hybrid regulation. She may have been successful in enforcing improvements: for example, the conveyancing market was opened up; opticians' monopolies were busted open. And outcomes were improved.

My counter-argument would be that it is good to improve outcomes. We only have to think of the introduction of checklists in medicine (how many scalpels in and out) to see mistakes decrease, or the abolition of any item of clothing or adornment below the elbow to see hygiene improve. But professions need more than this if we are to attract people into them and make satisfying careers there.

Let's assume the Royal Society, the OECD, and Osborne and Frey are right that many jobs will be lost to automation. And Adair Turner asserted the new jobs will be less productive so reducing overall productivity in society. Then the outlook is bleak.

Every attempt to make work accountable, quantifiable, verifiable reduces our joy and our meaning in work. This outlook fits with the economist's view that work is essentially a disutility compared to leisure (utility). The current moves to financialisation of life emphasise this approach. We are reduced to units of economic value--labour, land, capital. It's a subservient view of labour, similar to De Sousa Santos ideas of subaltern globalisation.

The single most important aspect of the professional that Susskind has neglected is the role of the trusted advisor. In a way such people don't deliver outcomes. They present views, interpretations, they make connections, they produce ideas from left field. They counsel us because they have a world view (Weltanschauung) that exceeds ours. Without this we would be impoverished.

I know there is plenty wrong with professions. I have spent many years discussing the legal profession in its forms. But I also know, as an academic, that new graduates coming through earnestly desire to improve the lives of others. We need to equip them to do that and also engage them in discussions about the best ways to achieve their ends, not as a calculus on a balance sheet, but in a way that continues to inspire the love of their chosen field, that makes learning desirable, and that ensures they will do the best for their clients or patients.

It saddens me that in the 90 years from when Fritz Lang's Metropolis showed a dystopian view of society that we may be doing our utmost to reproduce it in the present. Measuring work by its outcomes only denies the value of the human input and creativity. If not careful, views like Susskind's will take us there.








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Monday, November 05, 2018

Professions, Machine Learning, Blockchain...revised



After receiving many kind comments on our paper, "Professions and Expertise: How Machine Learning and Blockchain Are Redesigning the Landscape of Professional Knowledge and Organisation", I have substantially revised it and put the new version on SSRN. I want to thank in particular Professor Laurel Terry of the Dickinson Law School at Penn State University. I hadn't realised how many convoluted sentences I'd written until she pointed them out and she came through with many new sources for me.

The paper is extended and deepened. The deepening came about through my reading of Harry Collins' work on the sociology of science. He explained how acquiring expertise and knowledge is as much social as it is intellectual. The role of tacit knowledge is deeply embedded in social systems. And it is tacit knowledge that takes us from the idiot savant to the fully fledged member of a knowledge group.

I have also included two 3D figures that illustrate knowledge acquisition which are derived from Collins' research at All @ SEE: The Expertise Network. It's well worth fossicking around in.

Finally, I have extended the discussion of the contribution of blockchain in law and legal organisation. I have tried to imagine a law firm as a distributed autonomous organisation.

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Thursday, August 09, 2018

Professional Expertise, Machine Learning, and Blockchain (and in Law too)


(thanks to supplychaintoday.com)

My student, Lachlan Robb, and I have put a new paper on SSRN. The paper is

"Professions and Expertise: How Machine Learning and Blockchain are Redesigning the Landscape of Professional Knowledge and Organisation"

The abstract reads

Machine learning has entered the world of the professions with differential impacts. Engineering, architecture, and medicine are early and enthusiastic adopters. Other professions, especially law, are late and in some cases reluctant adopters. And in the wider society automation will have huge impacts on the nature of work and society. This paper examines the effects of artificial intelligence and blockchain on professions and their knowledge bases. We start by examining the nature of expertise in general and then how it functions in law. Using examples from law, such as Gulati and Scott’s analysis of how lawyers create (or don’t create) legal agreements, we show that even non-routine and complex legal work is potentially amenable to automation. However, professions are different because they include both indeterminate and technical elements that make pure automation difficult to achieve. We go on to consider the future prospects of AI and blockchain on professions and hypothesise that as the technologies mature they will incorporate more human work through neural networks and blockchain applications such as the DAO. For law, and the legal profession, the role of lawyer as trusted advisor will again emerge as the central point of value.

Keywords

Professions, automation, expertise, machine learning, artificial intelligence, blockchain, lawyers, legal services, law, accounting, medicine, knowledge

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Wednesday, August 08, 2018

The Accountants Are Really Coming...this time....


(thanks to giant bomb.com)

I'm sure PwC, EY, KPMG, and Deloitte would like to be thought of the same way as these bands, but...dream on. Why are they there? A press release from Karl Chapman popped into my overstuffed mailbox saying Riverview Law has just been acquired by EY.

Despite the hype of press releases, this is a significant move in the legal services market. At bottom it shows two things: NewLaw is coming of age and is now attractive to others; the accountants, particularly the Big Four, are serious about conquering the legal services market. Law firms should be worried because I believe they are on borrowed time.

A few years ago I sat in a meeting at the Solicitors Regulation Authority (SRA) in London discussing how and if accountants should be given regulatory powers in legal services. The accountants said they only wanted powers for probate. They declared they wanted no other regulatory authority. Really? I thought to myself. Surely no one believes that. The lawyers at the meeting also asked the accountants for assurances this would be as far as they would go. The accountants said they aren't interested in anything else. Really? I thought to myself. I suppose you believe what you want to hear.

Riverview has evolved since its inception. It had a role in offering quick responses to general counsel who needed a lawyer at the end of the phone line to answer questions as they arose. Since then it has moved towards legal process work, or what is now termed legal operations. It offers legal departments the same sorts of resources available to HR and procurement departments, for example, along with virtual assistants.

To anyone observing the legal services market, it should have been clear that legal process outsourcing was on a short leash, and I include most of NewLaw here too. Partly because some of it was brought back onshore into law firms' offsite offices, and also because legal process outsourcing is tiny compared to business process outsourcing over which the accounting firms have some dominion.

After the failure of Enron and Arthur Andersen in the early 2000s, it was a matter of time before the accountants moved back into law. They are more canny this time making their legal deployment part of the professional services enterprise rather than merely standalone quasi-law firms.

The Big Four dwarf any major law firm in scale and size. And, moreover, they can devote resources to research and development, something which law firms are only just beginning to learn to do. Even with the discussions in Britain and the EU about whether the Big Four should be broken up, moves into law are an obvious extension to their business. Their only real competitors are the Magic Circle or top New York law firms. But how long will it be before they start thinking about merging?

At a global level, and globalisation hasn't gone away whatever Donald Trump thinks, the big global professional services firms are necessary conduits for modern capital, which means they must have the resources to handle all kinds of business. Expect to see many more of these M&As in the future.



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Monday, June 25, 2018

How Courts Compete with Each Other


(thanks to rechtspraak.nl)

It can be a harsh world in the world of courts today. Competition is intensifying. Courts not only have to pay their way, they now have to face challenge from equivalent courts in foreign jurisdictions. What might have been a cosy sinecure in the past is now cold and clinical.

International arbitration is the prototypical competitive scene as Stockholm, Paris, New York, and London slug it out for disputes. Countries pass legislation according arbitral communities all kinds of rights in order to help them succeed. Creating competitive courts is a much harder process.

Courts are creatures of government who must use tax monies to fund them when there are many other claims on those pounds, dollars and euros. But to consider them mere cost centres would fail on several levels. If the rule of law is central to society and the economy, no country should skimp on its courts and judges.

England and Wales have long been in the vanguard of promoting British courts and lawyers around the world, actively seeking cases from Russia, the Middle East and China. Indeed the Commercial Court in London built a new court house, the Rolls Building, just for this purpose. While the court fees of thousands of pounds might appear high, they don't deter clients from these areas. They prefer to use the British courts rather than their own, often to the dismay of their countries' justice ministers.

In part countries have attempted to fight back by creating flexible and accommodating arbitral centres, but there are always questions around sustainability and longevity of such institutions among the arbitration community. The only truly new arbitration centre to emerge is CIETAC in China, which speaks to China's international commercial heft. One country that has not sought overseas litigants is the US, although it has a thriving arbitration community.

Now a challenge has come from an unexpected quarter, namely, Paris. The French minister of justice has opened a new commercial court within the Paris Court of Appeal. The court fees are set at Euros 100, much less than the British Commercial Court. The court aims "to offer speedy resolution, transparent decision making and guaranteed enforceability of judgments throughout the EU."

This can be seen as part of the modernisation drive under Macron. His predecessor, Sarkozy, attempted to do something similar making Paris the litigation centre of Europe, but the proposal went nowhere. This is part of a portfolio of changes:
Nicole Belloubet, minister of justice, said the international chamber is one of a series of innovations aimed at creating 'clearer rules of play in tune with today’s global and digital economy’. These include the 2016 reform of contract law - the first substantial change for two centuries - and a measure allowing lawyers from non-EU states to practise as ‘foreign legal consultants’.
While applications have to be made in French, testimony and decisions will be in both French and English, and the judges will be bilingual. One hope is to attract US companies to use Paris as their European litigation centre (post-Brexit perhaps).

How flexible and user-friendly such a court will be is open. The Commercial Court has always been attuned to its users, especially with its Users Group. The Paris fees are cheap but they aren't the key issue. Paris has a thriving arbitration culture with the ICC in residence and its attraction for north-south disputes, but it is multi-cultural. Can the Paris court become the new 'court of pie powder'?

Much depends on how the big international law firms situate themselves if Brexit is successful--I hope not--as well as the financial institutions. Big commercial law is part of a matrix of institutions that includes consultants, accounting firms, law firms, banks and the like. Law firms and barristers' chambers that practise in these fields tend to have offices overseas and see themselves as cosmopolitan and international. I wonder if French avocats feel the same way. However they react it will be good to see some competition in the global legal order. As the English know the returns can be substantial. 

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