At my first two legal jobs, working as a records clerk in the estate planning practice of a large firm and in-house as a para-legal at Microsoft, I was exposed to what most would consider some pretty high-powered attorneys. I frequently looked at the law firm partners or in-house attorneys who had reached the the ranks of Assistant General Counsel or Deputy General Counsel and thought “They’ve got it made! No one will ever fire them.”
Fast forward a decade and a half and I see this world quite differently. Many of those partners and in-house leaders are in the same place or have transitioned to even more success, but others have not been so lucky. There’s the former general counsel of a video game division of a large entertainment company that, it appears, had no idea what he was doing and lost his job only a year or so after I met him. There are also the partners and others at the relatively many firms that have imploded or dissolved over the last ten years. Sure, many have landed on their feet but they probably never could have predicted the end of their decades-old law firm(s).
Whether it’s a result of the Great Recession or forces affecting the broader economy showing up in legal, that there are now structural elements of the employment market that make legal employees just as vulnerable to the rapidly changing globalized economy as any other type of employee. What’s more, forces outside what has been the traditional labor market are also changing the nature of employment and forcing lawyers to adapt to a new normal of professional security.
At-will employment – meaning that the employer can terminate an employee at any time for any reason at all – is the default rule for employment contracts in nearly every state today. The overall impact and goodness of at-will employment is hotly debated but, for most legal employees in most states, it means that an employer can part ways with an employee at any time for just about any legal reason. Consequently, firms are less likely to invest in their lawyers and lawyers feel less loyalty to their firms.
You might say that partnership in a firm, especially a big firm provides some kind of security blunting the risk of an at-will situation, but that leverage only exists to the extent that the clients that made you a partner keep paying, you have clients that stick with you as a partner, and those clients don’t conflict with clients of a partner who is better positioned politically or has a bigger book of business.
There’s also the growth of non-equity partners who can charge partner rates but who have no ownership stake, and, therefore, no more of the structural protections that being an equity partner inherently provides. It’s additional profit for the firm without much of the long-term risk. Partnership largely in name only.
While defined benefit plans, also known as pensions, were the most popular and common type of retirement plan in the United States through the 1980’s they have faded in popularity since then. While I’m not sure how common they were in legal, to the extent that they existed, the “hook” of pensions that kept employees with a given employer for the entirety of their careers is now gone.
New forces, forces that at least for information workers like lawyers were previously not a threat, are also increasingly evident in legal. In his 2005 book, A Whole New Mind, law school graduate Dan Pink talked about the three forces that are revolutionizing business and the economy at large: (1) Asia, (2) Automation, and (3) Abundance.
“Asia” stands for the proposition that overseas labor is increasingly cheap and available. This is particularly true for knowledge workers, like lawyers, whose work can be easily sent overseas via the internet. One need only look at the growth of legal process outsourcers to understand the growth and possibilities but also the risks to those who don’t see this trend developing.
“Automation” refers to the artificial intelligence (AI) or robot disruption that is an increasingly popular topic in future of work discussions. While advances in AI are somewhat new, software has been automating increasingly complex tasks for more than a decade (e.g. TurboTax). Expert systems like NeotaLogic are swiftly enabling lawyers and law firms to build tools like TurboTax in order to automate both their simple and complex legal tasks. But the legal sector is also learning that technologies like machine learning, deep learning and others can provide more complex analysis and solve more complex problems. (See this great post from Noah Waisberg for a longer discussion the power of computers to handle increasing complexity in legal) If a computer can do what you do faster and with a relatively similar level of accuracy, your livelihood may be at risk.
Pink’s final force is “Abundance.” His main point about abundance is that in a world that is increasingly awash not only with goods and services, but information and choice, a business must provide goods or services that are sufficiently unique to stand out among the many other choices. What is it that you are doing as a lawyer that makes your practice, or your work, or your relationship with your clients so unique that a customer isn’t tempted to look for a faster or cheaper or more convenient alternative? Your offering, your business, your brand must stand out in a world of abundance in order to stay competitive in today’s economy.
The risks to legal employment as we knew it are both structural and existential. Yes, the way we hire, retain, and incentivize has changed but there are also significant large-scale trends shaping the way businesses and consumers transact in the world. Lawyers would be foolish to believe these trends won’t affect what they do.
Consequently there is no “safe harbor.” There is no “sure thing.” There is no true “job security.” Every lawyer must build a brand or a business for themselves, always with an eye to the possibility that, at any moment, the wind could change, business could shift, technology could disrupt. Lawyers must embrace a philosophy of perpetual self-employment. The sooner they do so, the better it will be for them and, more importantly, for their clients.
Stay tuned next week for some specific tips on how to embrace the world of legal self employment in your career.
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