Slaw.ca Legal Ethics Column, October 6 2017.
Generalism and Access to Justice: Jack of All Trades, Master of None?
The rise of specialization is among the biggest changes in the practice of law over the past hundred years. Most lawyers and paralegals are increasingly able to focus on a smaller number of legal niches. That is good news, for practitioners and also for clients. However, I will suggest here that generalist legal professionalism has an enduring role in fostering access to justice.
Specialization and Generalism Defined
Consider all of the different types of legal need experienced by Canadian individuals, corporations, and state entities within a year. The list would include everything from drafting a will to structuring a merger to prosecuting an assault charge. What percentage of all of these types of need would a certain lawyer or paralegal be willing and able to work on? The lower the number, the more specialized that practitioner is. Generalism is the opposite of specialization. It means being willing and able to help with a larger proportion of all the legal needs that arise in potential clients’ businesses and lives.
The Appeal of Specialization
The appeal of specialization quickly becomes apparent to anyone who practices law. First, each niche in which one practices requires a fixed investment of non-billable hours every year in order to stay current, whether one takes on a single file or 100 files. Fewer niches means less time keeping up with the law, and more time for client files.
Second, referral remains, for most firms, the dominant mechanism bringing new clients to the door. Specialization lets one develop a personal brand for expertise in an area, which generates referrals.
Third, specialization tends to improve work quality and outcomes. In one remarkable studyfrom the UK, researchers obtained access to client files in specialist and non-specialist firms. The specialists tended to get better results. For example, in welfare benefit cases from this study, 29% of specialist firms obtained payments for their clients but only 13% of non-specialist firms did so.
The Rise of Specialization
These factors have long encouraged legal practitioners to specialize, to the extent that they can afford to turn down work outside the chosen niche(s). Empirical data shows that legal professionals are increasingly following this logic and specializing their careers within an small number of legal niches.
Moreover, the niches themselves are getting narrower. A phrase such as “wills and estates” was considered a specialist niche a few decades ago. It is now an umbrella term which contains actual niches (ie. estate litigation and estate planning) in which one can make a career.
Two phenomena have contributed to intensifying specialization in 20th century North America. First, increasing density of people and businesses, especially in urban areas, makes it easier to find sufficiently demand for a narrowly-defined practice. Second, increasing legal complexity has increased the time cost of staying current in a field, and reduced the number of fields in which one a single professional can be competent (or excellent).
The Value of Generalism
Given all the advantages of specialization, what exactly is the defence of generalism? For those with corporate clients, generalism might mean understanding all of the common legal issues that arise within a certain industry. One well-known account divided lawyers in large Canadian firms into “finders, minders, and grinders” of corporate legal work. Rain-making “finders” of clients in business and social circles may find that generalist knowledge of legal issues helps them convince prospective clients of their firm’s expertise.
Generalism in Personal Plight Legal Practice
My new book (available free online from the Canadian Bar Association) focuses on personal plight law firms, whose clients are individuals with dispute-related legal needs. Personal plight is where our grave access to justice problem is worst. Generalism has a distinct role in creating access to justice in personal plight legal needs, attributable to the nature of these clients and their needs.
The average personal plight client is legally inexperienced. Legal consciousness is patchy at best; people struggle to perceive the legal dimensions of their life problems. Even when a person does perceive that the law is relevant to a situation, and decides to retain expert help, he or she will often not know (or not trust) a legal professional specializing in the appropriate niche.
For this reason, generalist legal practices (of the type that were more common 50 years ago) had an access-to-justice advantage over today’s niche boutiques. Generalism made it likely that the lawyer whom an individual already knew of and trusted would be able to actually help that individual with his or her legal need.
The rise of specialization may increase search costs – how much time and effort it takes to find a firm that can actually help. It may also, therefore, increase the number of people who abandon their rights because they cannot do so. Generalism has always been particularly important in isolated communities, where the number of legal practitioners is small and specialization is often economically impossible.
Fusing Generalism with Specialization
There are opportunities to fuse generalism with specialization, in order to combine the access-to-justice benefits of the former approach and the quality and efficiency advantages of the latter. Three practice models seem particularly promising:
- A specialist practitioner with diagnosis and referral generalism will be able to identify all of the major legal niches involved in a person’s situation, and direct the individual elsewhere for assistance or at least information.
- A front-line generalist is embedded in a community, such as a town or a linguistic or ethnic group. She assists clients with a wide variety of legal needs. However she has collaborative, perhaps long-distance relationships with niche specialists who may be located in larger cities. These specialists provide advice to the front-line generalist, and more advanced tasks (e.g. research or trial advocacy) may be subcontracted to them as necessary. Ken Chasse’s account of Legal Aid Ontario’s research service is an example of this type of relationship.
- The generalist firm of specialists. Larger firms can offer clients the best of both worlds: an institutional capacity to assist with almost any legal need, delivered by a workforce of niche specialists. Bay Street firms offer this to corporations; personal clients do not currently have the same opportunity in Canada. However in jurisdictions such as the UK and Australia, large and externally capitalized personal-client law firms are fusing generalism and specialization in this way.
Increasing specialization in the practice of law is both inevitable and salutary. However generalism – the ability of legal professionals to assist clients with a broad variety of legal needs – has enduring benefits for access to justice. A key challenge is to find practice models that simultaneously deliver the benefits of specialism and generalism to clients.
For more, please refer to Section 6.1.of Accessibility, Quality, And Profitability For Personal Plight Law Firms: Hitting The Sweet Spot, available now from the Canadian Bar Association Legal Futures Initiative.