A. Introduction
The legal profession currently is in a dynamic environment as it continues to evolve and law firms too are changing in response to internal pressures and external market forces.
This evolution is not limited to dynamism in the law, but also, to the dynamism in its practitioners, with every very passing year witnessing an increase in the number practitioners in the market, and all of whom are the embodiment of a characteristic of the profession - diversity. As a result, we have practitioners from different backgrounds, education, sex, gender and importantly age.
The age factor in particular presents a challenge within the profession. On one hand, we have senior practitioners with a wealth of experience borne from years of practice, but who may be conservative in their approach to the law. On the other are their more liberal junior counterparts who are embracing new and emerging practices, procedures and developments in a dynamic legal environment.
The ‘millennial’ generation has begun making its mark in the diverse workforce. Within just a few years, this up and coming group will represent the largest demographic in all workplaces. While much thought has been given to how business leaders can get the most out of ‘millennials,’ the true challenge is a bit more complex.The workforce of the near future will be a multigenerational one, featuring members from between four and six generations.
This disconnect caused by age gaps in law firms manifests itself in the relationships between different practitioners of differing age sets. The clash of psychologies, ideologies, values and principles becomes much more apparent once colleagues from different generations begin to interact. Approaches to case briefs, handling of clients, research and presentation of materials to mention but a few have inevitably been affected.
Whereas senior practitioners, for example, may favour the traditional office workspace, libraries containing volumes upon volumes of digests of books and engaging clients in face to face meetings, their juniors in stark comparison may opt for mobile and out of office engagements through new age technological based platforms such as video conferencing and internet based chat-rooms with information readily sourced and shared at the click of a button. The new need not replace the old, and the old must not be allowed to overshadow the new. Rather, both should converge for the benefit and future of the profession as a whole.
How can we reconcile differing age sets for the progressive growth of the law and its practitioners regardless of age? One avenue is through continuous professional education. This ensures that practitioners across the inter-generational divide are equally kept up to date on changes and developments in the law. A good example of this already in action is the Law Society of Kenya Continuous Professional Development (CPD) Program which makes it mandatory for continuous professional learning for all Advocates in Kenya after they are admitted to the Bar.
Secondly, law firms can adopt modern human resource management techniques. Engagements and interactions ought to be encouraged. Clearer channels for soliciting feedback between senior and junior practitioners should be fostered and maintained. The intended effect is that by making the work environment a more conducive space for communication and the exchange of ideas, the line between practitioners of different age sets becomes less defined, and that they will now be more inclined to work together towards common goals as a team.
The issue of seniority in the legal profession is a double edged sword. While we concede that the profession is one built on experience and refined through, years if not decades of practice, it is not an uncommon sight to see juniors easily being dismissed by their seniors for lack thereof. As such, there needs to be a shift in this culture to change the mentality that the first consideration taken before contribution can be weighed on merit is seniority in the work place.
Finally and as mentioned before, the new need not replace the old. In the same manner that previous decisions continue to be relied on as precedents in present cases and new laws are being developed and improved from the old, there is no limit as to the knowledge and techniques of practice that juniors can gain from their seniors. All that is required is an opportunity for engagement and consultation.
In conclusion, the legal profession ought not to be defined by age, but rather, should be guided by it. Every practitioner from either side of the inter-generational divide has something new and refreshing to offer to their colleagues and the profession at large. The work place environment in law firms ought to encourage harmony and co-operation among colleagues. The law treats all men as equal; it is time that the same is embraced by its professionals as well.
B. The re-emergence of multi-disciplinary practices (MDP’s)
The expansion of professional service firms into the business of law has been labeled the most visible challenge to the legal profession. This phenomenon is apparent in the activity of the big five accounting firms. These firms, once involved only in accounting and tax work, have expanded into contracts, mergers and acquisitions, and even litigation. All of the big five are actively pursuing clients and offering legal services. Accounting firms have been allowed to engage the practice of law themselves or to affiliate with independent law firms.
There has been notable growth in the market for legal services in the last few years. There are a variety of key drivers behind this change – a shift in global and national economic business environments, innovation and technology, regulation and access to justice to mention but a few. The result is that there has also been a shift in the traditional practice of law. Whereas previously the profession was the preserve of lawyers and law firms, we now see an increasingly number of entities venturing and branching out to provide legal services as part of their portfolios.
Arguments for and against MDPs can be grouped into two categories core values and one-stop shopping. The core value arguments focuses on conflicts of interest, confidentiality, and independence of judgment while the one-stop shopping argument centers on efficiency, quality of work, and effects of competition. The importance on core value argument arises from the fact that ethical integrity of the lawyer is the profession's hallmark and call for public confidence. Ethics is not just a set of rules so the argument goes. It is a value system, a mind-set, a responsibility that must remain constant in the lawyer's conscious hence the contention that this restriction is necessary to preserve a lawyer's ethical obligations.
Opponents of MDPs further posit that work performed in multidisciplinary firms has a significant risk of conflicts of interest. The problem arises because non-lawyer professionals are not governed by lawyers ethics standards i.e while accountants can do work for clients with competing interests, self-imposed conflict rules more often than not prohibit entire law firms from undertaking such representations, even if the conflict involves only a single lawyer in the firm. Proponents of MDPs argue that the core values, including lawyers’ rules governing conflicts of interest, are only threatened when the multidisciplinary business entity is controlled by non-lawyers.
Advocates of one-stop shopping endorse the formation of MDPs because they believe that different disciplines working together in MDPs will provide the client with greater convenience and access by going to just one place, a client can receive assistance for all of his/her needs. Supporters also argue that the ban on fee-sharing and on the formation of partnerships prevents law firms from taking advantage of the possible economies of scale that could result from combining legal and ancillary services within the same company.
Clients would benefit from an MDP's ability to combine legal and extralegal issues and this would result in increased efficiency and reduced costs. Moreover, because legal and law-related services can be substitutes, albeit imperfect ones, the ban may bias firms toward performing excessive legal services rather than referring clients to outside providers of less expensive but equally valuable law-related services.
Opponents of MDPs and one-stop shopping argue that a lawyers' competence and diligence may be threatened because they will be distracted from the practice of law. The opponents believe that the costs to the legal profession outweigh the possible convenience to the client. Duty to clients is impaired because the practitioners of each discipline or profession are not independent of each other. Therefore, the practitioners are not in a position to give the client one of the important components of professional service- an independent evaluation of one another's qualifications or performance.
Duty to society is also impaired, because if such firms become characteristic of professional practice they are likely, over a period of time, to reduce the distinctiveness of law as a separate profession. Indeed, the multidisciplinary law firm may become indistinguishable from multidisciplinary groups organized by members of other disciplines, such as accounting, business management, or financial management.
Opponents claim that clients can gain the same benefits of an MDP by hiring professionals from different disciplines to work together with a lawyer. They argue that although there may be a need for the services of several different specialists, there is no need to house them all under one roof. One critic of MDPs stated that one-stop shopping is just a benign way of describing the destruction of everything lawyers should and must stand for. Other challengers fear that society will end up with a bunch of general problem-solvers and no specialists.
Counter-arguments on the foregoing are that there is need to put the interests of the public before the legal profession. All lawyers are required to place their clients' needs above their own but client retention and protection does not justify maintaining an archaic system while the rest of the world continues to develop. Removing the statutory ban that precludes lawyers from forming partnerships with non-lawyers will result in cheaper prices, as well as increased access and greater justice. Proponents of MDP’s have further argued that Client demand for MDPs exists on both the corporate and solo practitioner level. MDPs have the promise of enhancing the practices of small firms and delivering legal services to underrepresented areas.
Closer home, as external market forces shape practice, the resultant fragmentation of the legal profession in Kenya must be recognized for the reason that it will inevitably impact the type and nature of services to be offered.
The most influential agents of this change are money and regulation in the profession. To many a client, ‘hiring’ the services of a lawyer is considered to be expensive. On the part of corporate entities, there is a need to keep information confidential and to retain control over their own legal affairs while keeping check on costs.
A noteworthy emerging development is the establishment and growth of legal departments, especially within companies, most of which have a conventional business-oriented model. There has been an increased recruitment of practitioners as in-house counsel to handle internal legal affairs. As a result, there has been a reduced reliance to engage external lawyers and firms for services touching on employee contracts, risk and compliance, for example.
The net effect of these changes is that they present either opportunity or loss depending on the approach. Whilst some may take the view that increased awareness of the law leads to fewer engagements with lawyers, others look for a way to carve out a niche in an ever changing market.
C. Conclusion
The real debate is whether multidisciplinary practices actually serve the clients' best interest or are detrimental because they trample the attorney/client privilege, pose problems regarding conflicts of interest, and infringe on professional independent judgment.
Multidisciplinary practices have developed abroad in response to the consolidation of global markets and client demands for efficiency. Multidisciplinary practices have developed abroad in response to the consolidation of global markets and client demands for efficiency. A such, in order to retain relevance, its trite that lawyers have to adapt and embrace the new market dynamics.Multidisciplinary practices have developed abroad in response to the consolidation of global markets and client demands for efficiency. Multidisciplinary practices have developed abroad in response to the consolidation of global markets and client demands for efficiency. A such, in order to retain relevance, its trite that lawyers have to adapt and embrace the new market dynamics.