If you gather five interns in your office, you will see immediately which ones have been encouraged and loved. You will see immediately which ones had a father or a mother or an uncle who said to them “you know what — you’re 13 years old — you should read this, you should read that. And you can do it.”
Kami Haeri is one of four authors of “L’Avenir de la profession d’avocat” (The Future of the Legal Profession), a report submitted to the French Minister of Justice in February, 2017.
The structure and the representation of our profession raise governance issues. We have three governing bodies, the CNB (Conférence National des Barreaux), the Conférence des Batonniers and the Barreau de Paris. The Paris bar is by far the largest of the French bars, and also by far the richest. In our highly centralized county, the Paris bar has the most direct exposure to the French public authorities. The CNB is the general assembly representing the overall community of French lawyers and is meant to represent all of them, nationwide, via its 82 members. The Conférence des Batonniers represents all of the bars in France, except Paris: that’s 160 (again, excluding Paris) super diverse bars. When there are new ideas to develop and new issues to debate, the fact that we have these three bodies to be consulted raises a huge structural problem of representation. I state this not as a reproach, but as something I regret.
We see this problem manifested in our professional bar schools, for example. The vast majority of the students who are admitted to an Ecole d’avocat know that they will just have to suffer through an 18-month program that does not convey the energy and practical education that they expect in anticipation of their future job. All they do is hold their breath and wait for it to finish. Why aren’t we, as a profession, able to create an attractive forum for education?
The answer is that we don’t always have the information and governance that we need for the profession to move forward: to conduct a qualitative or quantitative approach or analysis of us as a profession, to understand who we are and where we are going, who joins us, and why. In this context, I think it makes sense that the Minister might have asked someone outside of the representative bodies to do the work that we (the Haeri Commission) did.
I met the Minister of Justice for the first time in July, 2016, when I attended a dinner that he organized (something he does from time to time). I did not know him and I don’t know for sure why he invited me to that particular dinner, but it might have been linked to the work I did in 2013 on the quality of new lawyers and access to the profession. (In that report, I deplored that it is our universities and not us, lawyers, who decide who joins our profession).
I’m not a big fan of small talk, and certainly I wasn’t going to waste my time with the Minister of Justice on small talk. So I immediately spoke with him about the image of our profession that new lawyers have, and that we as lawyers have of ourselves. I spoke about how we are blinded by the legend of our profession, and how the storytelling around us keeps us from thinking about our profession with more creativity and curiosity.
I teach in a variety of contexts and for that reason I have spent a lot of time with law students. With that experience, I could speak with confidence to the Minister about how worried today’s law students and new lawyers are. We spoke for two hours — it was an amazing moment. The Minister expressed a genuine interest in our discussion.
To be honest, I don’t think I know or understand these matters any better or worse than anyone else does. I do feel that technology is changing our market, as is globalization – we have not integrated the changes of the outside world into our profession, or into our thinking. And young lawyers are right to be worried, and they are right to demand that we address this.
So, he asked me, what are your ideas? I responded that we need to re-think our approach to legal education. We need to be more focused on how we, as a community, can be more structured and innovative and how we can better train young lawyers. (I also believe that we need to re-think our institutions, but that was not the focus of my conversation with the Minister and it is not the focus of the Report. In the Report, we seek to make what we hope are useful suggestions. If our institutions agree, then they will use them and if not, they won’t). It was a very cordial and very pleasant dinner.
A week or two later, I received a call from the Minister’s office asking me if I would be interested in going further — in doing research and preparing a report. Of course I responded that I would be honored. So I was invited to the Minister’s offices, where I met with Professor Pierre Berlioz, who is a law professor and also the person responsible in the Ministry of Justice for France’s variety of legal professions. We agreed upon format and methodology. We agreed that the approach needed to be balanced and that it was important to include all kinds of lawyers in the work (Paris/province, solo practice/larger firm, litigation/transactional, men/women). I was honored to gather a team composed of Sophie Challan-Belval (a sole practitioner in Rouen), Eleonore Hannezo (an associate at Linklaters, Paris) and Bernard Lamon (the founder of an IT dedicated boutique in Rennes). It was important to keep the number of people on the Commission small as a large one would be too difficult to manage, and certainly impossible to manage quickly. And, given the upcoming elections, we agreed that the work needed to be done very quickly. We ended up doing the work in just over three months.
Regarding our methodology: Of course it was important that we speak with elected representatives of the bar institutions and as well as with representatives of the lawyer unions, and we did speak with them. However, we felt it was equally important that we speak with people who are not representatives of either — who are not elected and do not have a public duty of any kind — and that we spoke with them first. Also, we felt that it was important that the four of us on the Commission work together as much as possible, and that the result be a mutual product of the four of us. We didn’t want to split up the work as “this is Eléonore’s part, this is Bernard’s part, this is Sophie’s part,…” with the result being a mere agglomeration.
Officially we spoke with 130 persons but unofficially we spoke with about 160. The reason that not all of their names appear at the end of the report is partly by mistake but mostly because some did not want their names to appear. They wanted to be able to speak freely about their institutions. Further, you’ll note that we did not quote anyone in our Report.
We did a small experiment with the online collection of opinions. While we did receive interesting input in that manner, we quickly decided not to place any emphasis on it as a method for collecting input. This is because, we discovered, if we conducted an online information gathering process, we would also have to hold an online debate regarding our work, and we did not want to do that. Instead, we wanted to be able to completely focus on our analysis and deliver a finished work. In our opinion, if you launch a live debate, you cannot work on the report at the same time. It was either-or. This was especially the case since we had so little time.
The first steps — the first weeks — of our work were devoted to learning as much as we could about society at large, about how clients and people in general live, work, consume. What do they need today? What is their relationship to institutions? To mobility? What is their relationship to work, and how it is structured? With this analysis, we can understand where we are going as a society, which should permit us, as a profession, to realign our own projection to match society’s.
We spent those first weeks on the one hand reading as much as we could, and, on the other hand, speaking with as many people as we could who were experts in those areas. We also spoke with experts in diversity and gender parity. We spoke with clients of legal services, and union members. And we spoke with people who used to be lawyers but have left the profession. It was only after those discussions that finally we spoke with members of the profession. In other words, we tried to have an outside-in approach, where we looked at what is happening outside our profession before we looked in detail at what is happening inside.
We did not speak with elected representatives of bar institutions or of lawyer unions until the very end. This was not because we didn’t want to speak with them or because we didn’t think that what they had to say was not important — we did and it was. But their conversations are the most structured. We wanted our discussions with them to be useful. So we wanted to absorb a lot of information before, and we wanted to be able to challenge them if necessary with what we had learned.
And we learned amazing things. About how people approach work, about why certain generations think and work certain ways, about how loyal we are to our legal community, … We would very much have liked to speak to many more people, and especially to more people outside the legal profession, but the four of us are all practicing attorneys with heavy workloads, and we just didn’t have time. In the end, we focused on what we thought was the most urgent. We wanted to wake up our collective conscious on what we are as a profession, and on the huge gap in salaries between men and women.
Much of the information we present in the report, and notably the statistics regarding the profession, is not new — it’s been in the public domain for quite some time. By including it in our report, in a consolidated format, it is our hope that it will finally get the attention it needs and deserves. We hope that the fact the report was prepared by persons who are not connected to any of our bar institutions will mean the report carries additional credibility. Further, we say things in the Report that you wouldn’t read in any official document issued by our bar institutions, and we do so in a tone they would not use. It is our hope that this also adds to the Report’s credibility.
Over 200 years ago we had a Revolution in France. Yet here we are, still with a highly centralized system, still with our love for strong leaders. We despise weak leaders. We cut off the head of our king, yet just a decade later we crowned an emperor. Social change is hard for us in France. Our profession could be so much more innovative than it is.
In the end, we hope that we have created a momentum, first for discussion and then for change. Will this in fact happen? I don’t know.
We didn’t prepare the Report for people who as a general matter don’t pay attention to issues it raises. We didn’t prepare the Report for people who don’t appreciate the fact that we were entrusted with this mission. And make no mistake, there are those who don’t appreciate it — they have said: “Who are you? You are not from any of our institutions and your appointment is an insult to our institutions. Who are you to open debates, and to re-open debates that have been closed?” My response is: are there only specific, designated groups who are entitled to debate? To decide what is open for debate? The world doesn’t work this way, and I am glad that people from outside our institutions open these debates.
We lack dialogue among law students, young lawyers, and older, established lawyers. This causes us to miss many things, and to fail to develop an understanding of how the profession needs to develop. How do you think it makes us look when creators of legal start-ups go to conferences and explain how our institutions sued them to keep them from operating, but lost?
I believe in appearances. And I also believe we should take ideas from innovative sectors. Take their working spaces, for example. They like to work in open spaces to encourage the free-flow of ideas. I believe that if we as lawyers set up our working spaces in a more creative way, we would create the appearance of creation, and our thinking and our work product would also be more creative. Same for education. If we change our methods, if we change our spaces for education, it will automatically change the content. Immediately.
I believe in equality of opportunity. In this context, I have had the chance to observe the many interns we have had in our offices at August Debouzy. From the moment they walk in the door, I see major inequalities among them. Learning substantive law can be tough, but it’s not the toughest thing we have to face in our profession. After all, we often face challenges bringing us to learn or update our knowledge on in areas in which we’ve had little to no training. And when a law changes, it can force us to develop a completely new understanding. That happens every day. Our substantive knowledge becomes outdated every day. And someone who has better substantive knowledge than us comes along every day. That’s not where the problem of equality of opportunity lies.
If you gather five interns in your office, you will see immediately which ones have been encouraged and loved. You will see immediately which ones had a father or a mother or an uncle who said to them “you know what — you’re 13 years old — you should read this, you should read that. And you can do it.” (I don’t know what, say To Kill a Mockingbird or Camus’s L’Etranger, whatever). The fact that someone has done this for some of our new lawyers but not for other creates a massive gap in equality. Because the new lawyers who have had a father or a mother or an uncle like this are the new lawyers that have confidence in themselves. They have the real skill, which is to know how to speak, how to behave, how to convey confidence.
I believe that with legal education we can provide balance — we can and we must help the less fortunate students and young lawyers to develop the soft skills they need to succeed in our profession. We can help them to develop confidence in themselves. We are proposing a continuing legal education program for new lawyers — for their first six years or so after law school. In this program, each year they will be invited (not required) to learn a new soft skill.
Let’s put it in this context: We know that after about five or six years of practicing law, most lawyers reach a pivotal point in their careers when they must take full stock of their opportunities and make decisions about how they want the rest of their career to progress: do they want to go in-house, do they want to be on a partnership track, etc. Now let’s step back, to when such a lawyer was a law student: Law students are inundated with classes, programs, information — a lot of things are put in their brain. But once they are sworn into the bar, they are abandoned. They are completely abandoned. And so what happens? Those who have a father, an uncle, a friend in the profession — they are helped by wise people who can guide them to make the right decisions, as well as guide them through the many other challenges they encounter in their career. On the other hand, those who are alone, they will learn, sometimes by making mistakes, by banging their heads against a wall and thus being forced to change direction until they finally find a path, if indeed they do find a path. Those are the people I want to help. Those are the people I think can be helped by the CLE program we are proposing.
Our bar institutions do a fair amount of research and collect certain statistics with respect to the legal profession. To be sure, there are many skilled and dedicated people doing good work in this regard. However, I would fault their work in two ways. Firstly, there is little planning and strategy to it — their work seems to go off in all directions without any thought as to how it does or should fit together. Further, most of their work is retrospective; very little is prospective. That is, very little looks ahead to the future. Further, we should have a research body that is only dedicated to numbers and statistics. Especially we need statistics in order to understand bias, and notably gender bias. Without statistics, we cannot show how we have failed with respect to diversity and gender parity.
In the Report, we deliberately did not address the problems of our bar institutions. This is not because we don’t think that they have problems — of course they do. We just didn’t see any point in addressing them in the Report because it wouldn’t have changed anything. Those who govern our institutions know the institutions have problems and that they suffer from them. They have not been able to fix those problems, and there is nothing our Report could do that would make them more able to fix them. It takes a huge amount of courage to give up some of your sovereignty, even when you know it’s for the greater good. It is unlikely that our bar institutions will change without some kind of powerful force from the outside.
Another problem we have as a profession is in working with the other regulated professions. We see each other in meetings, and we say nice things to each other, like “we should work together,” and then nothing happens. We need to create spaces and platforms that bring the different regulated professions together, that facilitate their work together. In my opinion, interprofessionality is the future. It’s the addition of intelligences. We are far too inward-looking. We have so far to go. There was so much controversy around the Macron Law. So many debates that afterwards we’re now all exhausted. And for what? All the Law does is allow us to create platforms for different professions to work together. I can’t understand the resistance to this.
Look at what happened with AGN Avocats. This is a law firm that has set up their offices to look like shops, where anyone can walk in without an appointment. They were able to raise funds in the way a start-up would, but in order to stay within the rules, only members of the bar were allowed to invest. Our bar institutions were opposed to AGN, and they sued them, but lost. And for what? What is wrong with making it easier for people to see a lawyer? We should have law firms in malls, so that people who feel lawyers are inaccessible can access them.
It was only relatively recently that lawyers were allowed to join together in firms. For a long time, law was seen as strictly an individual endeavor. Lawyers that still practice alone today see our new structures and cannot recognize the bar or themselves.