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September 11, 2014

Envisioning the future of legal services requires us to define “legal services”

by Dan Rodriguez

The bold title of the commission assembled by the ABA is “The Future of Legal Services.”   I am chairing one of the working groups, that on “Blue Sky Thinking on Innovations.”  (One committee member wryly noted that the abbreviation could be “BS Thinking”!).

Such blue sky thinking allows us to consider, through a wide lens, present and future innovations in the contours of legal services.  One threshold issue, I think critical, is the definition of “legal services.”  Are we going through an era in which the configuration of what is “legal” and what is, say, “managerial” is changing? As I and others have written about elsewhere, the imperative of thinking about problems of risk and performance as issues at the interface of law, business, and technology is critical.  Managers often want their lawyers to help them think through risk and reward and to do by evaluating not only the legal dimensions of the problem (will I be sued? what is my potential exposure? what can I do to ameliorate my legal risk?), but also the business performance dimensions (how ought my legal risks be assessed in light of potential opportunities? how do these risks map onto the strategic objectives of my company?).  Traditionally, these latter issues were handed back to managers once the legal issues were properly ventilated.  And, to be sure, these C-suite level decisions must be framed around considerations that are often above the competencies, and indeed the “pay grade” of these able in-house lawyers.  Yet, the twin elements missing in this standard depiction is this:  The manager making the business decision should have adequate insight about the structure and basis of the legal advice to properly incorporate that advice into the business decision — to be clear, it is the context, not the content, that is critical here; we still want the lawyer to be the lawyer.  And we want the lawyer to have enough of the context of the business strategy decision to understand the nexus between what light “the law” sheds on this matter and what are the issues pertinent to the manager’s choices.

So, we are back to the puzzle of what are “legal services” in a setting which legal advice is embedded in business strategy and in which business strategy incorporates not only elements of substantive law, but also of legal reasoning — the process, as well as the content.  Lawyers, often acting through the accreditation authorities and within the structure of a profound culture of “law” and “lawyering” will see themselves as the sole stakeholders for what is or is not a “legal service.”  But in the world in which the silos between pure lawyering and pure business performance are dissolving — or at least the purity of these concepts are interrogated — the hegemony of lawyers in defining this phrase is controversial.

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