Our Confusion Over What Is A “Lawyer”

A profession facing an existential crisis

The Algorithmic Society

Author: Ken Grady is an adjunct professor for Michigan State University College of Law’s LegalRnD – The Center for Legal Innovation.

When I was an undergraduate student, I suffered from lack of focus. Unlike many in my cohort, I enjoyed a broad range of classes. My pre-med friends liked science courses and, for the most part, endured humanities courses. My humanities friends steered clear of the science buildings and lived for courses that explored the meaning of life. Other friends spent hours in art classes, or carried around thick books with fascinating titles such as “Intermediate Cost Accounting” or “Financial Management”. But I enjoyed a broad palette of courses.

I took many of the heavy science courses (inorganic chemistry, organic chemistry, physics, anatomy). I also took as many psychology courses as I could fit in — my goal was to become an academic studying the biological causes of human behavior. Sprinkled in each semester were courses in areas such as ancient history, political science, and music theory. My course lists were eclectic, but fascinating.

As I neared graduation and was exploring graduate schools, my mentor and undergraduate advisor had one of those “now it’s time to get serious” talks with me. He was very enthusiastic about my going to graduate school, but he was worried. “To excel as an academic,” he said, “you will need to pick an area and become an expert in it. You can’t dabble in many areas and expect to build your reputation, get grants, and get published.”

As it turned out, I never had the chance to explore whether he was right or wrong (though I think he was much more right than wrong). An accident in my family midway through my senior year meant I had to leave college to care for my mother. I needed just a few credits to graduate and my college was generous enough to let me take them at an accredited college near my home.

By the time I got back to exploring graduate schools, I had done more investigating. The pipeline of Ph.D.s was stuffed (I am in the middle of the Baby Boomer pack). Many with doctorates from name schools were struggling to find jobs (the popular meme at the time was the Harvard Ph.D. in biology who was running the franchise office of a lawn fertilizer company). I was told that if I had any alternatives to getting a Ph.D., it would be wise to explore them. I had spent part of my interregnum working at a major law firm, so off to law school and graduate management school I went.

Looking at my undergraduate transcript, you would find it difficult to define a central interest. Science? Psychology? Humanities? Music? Exactly what was my field? The core definition problem was: What is a Ken Grady?

What Is A Lawyer

Today, lawyers also have a definition problem: What is a lawyer? This may seem like one of those “how many angels will fit onto the head of a pin” problems, but it isn’t. I would argue that it is at the heart of many of the discussions about the legal industry today. If we can’t define a lawyer, then how can we establish what we need to teach students to become lawyers? How do we define what is legal work and what isn’t (apparently, reviewing documents in litigation is not legal work though for decades, lawyers thought it was).

Duc V. Trang, Managing Director of Landon Advisory Services, raised the same question in a recent post on the ROSS Intelligence blog. He has an interesting take on defining lawyers tied to the concept of problem solving. But with the growing diversity of lawyers and what they do, I wonder if problem solving is a sufficiently common element, and a unique element, suitable for defining a “lawyer”.

Is interviewing witnesses in litigation legal work? Studies show that FBI agents are better at doing interviews than lawyers. Perhaps writing briefs and other documents is legal work. If so, then lawyers are in trouble. Most lawyers are bad at writing. Journalists and english majors are typically better at writing than lawyers. Some political scientists know more about Supreme Court jurisprudence than some lawyers who file briefs with the Supreme Court.

We can go on and on through the various tasks that lawyers perform, and yet none of those tasks is uniquely a “lawyer” thing. Look at research, critical thinking, legislative drafting, and on through the list of what lawyers do and there isn’t anything that lawyers and only lawyers own.

Another big part of the problem is that a lawyer is not one thing. A lawyer can be one of many things and there are many types of lawyers. We have corporate lawyers, family lawyers, criminal defense lawyers, and intellectual property lawyers. We can expand that list to include dozens and perhaps hundreds of lawyer-types. At one time, perhaps in the 1800s and early 1900s, a lawyer was a much narrower thing than a lawyer today. Attempting to find the common denominator among all the lawyer-types typically leads to something so vague that once again we are left without an adequate definition of lawyer.

Perhaps lawyers are package deals. It isn’t that we excel at any one thing, but that we put together many things into a unique package. We are not the only ones that can do each task, but we are the only ones trained to do a combination of tasks that fills a role in society. It is that combination that defines the lawyer.

I offer up this analysis not because I have found the answer to the question “what is a lawyer,” but because I still am not satisfied that we have the answer. Richard Susskind and Daniel Susskind tried to find a definition for “professional” in their book, The Future of the Professions, and finally settled for a definition that would satisfy no one (I suspect the authors included). We have the same problem as we search for the definition of lawyer.

Lawyers Versus Legal Services Providers

The “what is a lawyer” question starts to really hit home when we begin disaggregating what lawyers have done. Give part of what a lawyer does to a project manager, another to a pricing specialist, and a third to artificial intelligence, and the lawyer’s contribution may start to look skimpy. The lawyer adds judgment and experience, argue some. Is the lawyer in his or her first year adding judgment and experience the same as the lawyer in his or her twentieth year? Clearly not, but then when does that first year “lawyer” become a Lawyer?

And what of judgment and experience. If artificial intelligence can scan 10,000 or 100,000 records in a data set and provide a recommendation based on that “experience,” is the lawyer who relies on his or her lifetime of cases — a fraction of what the AI can review — providing experience? If the lawyer’s judgment is subject to bias and the judgment of artificial intelligence is bias-free (admittedly, something we are still trying to achieve), is the AI’s judgment better than the lawyer’s?

Many of you will read these questions and brush them aside. “People are better than AI. We bring compassion, intuition, inference, and other human skills to bear on what we offer clients. AI can’t do the same,” you say.

For now, that is correct. But to believe it will always be that way flies in the face of what already has been done with AI. Even now, people in many disciplines can provide those human skills as none of them is reserved to lawyers. So, we still have not defined a lawyer.

The “What Is A Lawyer” Question Comes Up Every Day

Each time an individual or organization needs something done and a lawyer is a potential solution provider, the “what is a lawyer” question comes up explicitly or implicitly. Does the individual need a lawyer or will someone else (an accountant, a counselor, a legal publisher) do just as well? Does the organization need a lawyer, or will a consulting firm, an accounting firm, or a law company suffice? Lots of people and organizations are problem-solvers.

More frequently, individuals and organizations are answering the question “do we need a lawyer” with a “no.” Individuals are going it alone and organizations are turning to others (those without law degrees) to provide solutions. There are many reasons behind these changes, but one is the failure of lawyers to define how they uniquely add value.

Lawyers have enjoyed an artificial moat around the profession. There are those who have law degrees and those who don’t. If you don’t have a law degree, then beware — engage in certain tasks and you can be charged with the “unauthorized practice of law” — a vague standard defined and interpreted by lawyers. But that moat is getting shallower and narrower every year. If a U.S. organization hires a law company in South Africa to negotiate contracts and that law company relies on its U.S. office to do the work, has the law company engaged in the unauthorized practice of law? Should we care? Was the U.S. company harmed?

Individuals and organizations have problems they need solved. Unless lawyers can demonstrate they provide a unique value proposition in solving those problems, individuals and organizations will consider going, and often go, elsewhere. So we are back to the central question: What is a lawyer?

What If There Isn’t An Adequate Answer

I am sure some of you reading this post will jump in with your own definitions of a lawyer. We all want to answer the question, if for no other reason than to justify what we have done with our lives. As you provide a definition, take a moment to challenge it. Does it really provide a unique definition or could others fill the role? Is a just-graduated lawyer superior at analyzing a Supreme Court opinion than a 20 year political science professor who has studied the Supreme Court her entire career? If the answer is “yes,” then what defines the lawyer that the political scientist does not have? If the answer is “no,” then why can’t the political scientist write a brief and file it with the Supreme Court? I’ve glossed over a few things to make this point, but the core question remains.

I think the fear many lawyers have today is that the answer comes down to regulation not substance. The difference between a lawyer and someone who isn’t a lawyer, is that the state has decided that those individuals with certain education and training, and who have passed certain tests, get a ticket to practice. They may not be substantively better than others at doing the tasks lawyers do, but they did the things required to get a ticket to practice. If that is the distinction, then lawyers are at risk — and probably with good reason.

This same analysis could be applied to many professional fields today, as the Susskinds note. The wide availability of information and knowledge that once was trapped in silos has been a great equalizer. Artificial intelligence will break down more silo walls. Depth of education, training, years of experience, and perhaps something else may be all it takes to define a profession — any profession — sufficiently. Even if so, those in the profession must take it upon themselves to come up with a definition sufficiently persuasive to society to justify continuation of the profession. Right now, lawyers are struggling to come up with that definition, and that does not bode well for maintaining the moat around the profession. And, that may be a good thing for society.

Ken is an author on innovation, leadership, and on the future of people, processes, and technology in the legal industry. He is an Adjunct Professor and Research Fellow at Michigan State University College of Law; and on the Advisory Boards for MDR Lab and LARI, Ltd. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook.