BigLaw Blues

  • January 01, 2015
  • Lee Akazaki

shadowy figure looking at a signpost with directions in four waysDisillusioned and in crisis, students and young lawyers must look to the legal landscape to find career purpose

Never has the selection of legal careers featured so many open doors. What lies behind them is another story. Millennials singing the BigLaw Blues feel baited by the prosperous and soul-enriching careers established lawyers appear to enjoy. In an age of helicopter parents and mind-numbing careerism, no wonder they feel down. Door #1 had been medical school. Had they opted for MD’s instead of JD’s, they would at least have known what the heck they would be doing with their degree. Whatever possessed them to choose Door #2?

The usual youth dilemma – no job without experience and no experience without a job – quickly gives way to the uncertainty of whether, once employed, the job itself will offer success or happiness. Course selection from a law school curriculum now seems to have been as quixotic as grocery shopping at a sweet shop. Building telecoms with lattice-works of words, championing human rights in the highest courts, or safeguarding children from the collateral damage of family breakdown: were these legal careers ever likely? If the true lot of the junior lawyer feels more like an indenture than a quest, the reason may be embodied in that anthem of one generation’s broken promises to the next, the Clash’s London Calling!  - “And you know what they said? Well, some of it was true!”

The legal academy points to the “supply” of law jobs. The profession talks about the diminishment of the “demand” for entry-level lawyers. Left unchecked, this market will tear the entrants apart and reduce them to the sum of their technical skills.

For those seeking disillusionment as a form of inoculation therapy, look no further than the Canadian Bar Association’s report, Futures: Transforming the Delivery of Legal Services in Canada. You will see entire sectors of the industry labelled as “feudal” and left for dead. Tomorrow’s clientele for the knight in shining armour will want a less expensive, more specialized drudge to input legal data into screens. The only happily successful lawyers will be initiates of the Burning Man festival. The rest of law will be divided between an underclass of scribes and a suburban-industry of legal micro-capitalists. The commoditization of legal services is indeed a destroyer, a Death Star because it obliterates the historical context of our profession.

The lesson to be learned from the transformation of Ontario’s legal landscape over the last 30 years is that destruction is not always creative, and angst can change professionals into lesser souls. Young professionals are eager for the ready-made solution; after spending up to $90,000 on law school tuition alone, they can’t be blamed for feeling like disgruntled consumers. The legal academy points to the “supply” of law jobs. The profession talks about the diminishment of the “demand” for entry-level lawyers. Left unchecked, this market will tear the entrants apart and reduce them to the sum of their technical skills.  To counter this, new lawyers must know what we have inherited, how we have come to the present dilemmas of our profession, and how we can renew and strengthen our purpose within Canadian society.

My own legal career started in 1986 in the fog of a room full of cigar smoke. For my summer student job interview, the senior partner ushered me into the Lobby Bar at Toronto’s prestigious Commerce Court. He hired me over plates of prime rib and a round of wet martinis. Ontario refused to accept its status as the branch plant of IBM, Coca-Cola and the Big Three auto makers; our province still identified itself as the stodgy lumber yard, metal smelter and pig abattoir of Canada.  The legal landscape was carved into counties and districts, where local lawyers appeared before circuiting judges in picturesque market towns. ‘Toronto the Good,’ was the seat of a profession whose regulating body still clung proudly to its colonial name.

Ten years earlier in our sister province, the Parti Québecois had come to powerabove the protest of Montréal, fearful of its loss of place on Madison Ave. boutique windows as Canada’s international city. The result was an exodus of money, administrative mandarins and multiculturalism to sleepy Toronto. The billable hour was an innovation forced upon Bay St. firms by penny-pinching blue chip clients wanting to pay for quantity, not quality. Looking back, Ontario legal professionals c. 1990 were like denizens of the low-ceilinged Floor 7½ of the Mertin-Flemmer Building in the movie, Being John Malkovich: industrious, emitters of confused din, suffering in cramped and desuete quarters.

In the managing partner community, the wisdom of the day held that large regional firms were too small to serve business in a global marketplace, and too large to glue together with a firm culture

One of the weather vanes turning in the gale was Holden Day Wilson, then a pillar of the Toronto legal community. Known for a tough-minded commercial practice, Holden Day was peopled by lovers of legal Latin and black letter law. In 1993, one of its partners, Garry Hoy, threw himself at a 24th-floor glass window to demonstrate its strength to a group of touring articling prospects. The frame gave way and he plunged to his death.  Within three years, the office closed its doors. Hoy’s freak accident did not directly lead to the demise, however, if there ever were an example of the power of suggestion over the destiny of a law firm, this was it. The sudden exodus of partners from this highly respected pillar of Toronto’s legal scene exposed the building blocks of our profession as fragile and human.

If you have trouble connecting the dots between the Holden Day demise and the current state of Ontario’s legal sector, here are more dots to consider: the phenomenon that descended upon the Ontario high street practice when American title insurers arrived in Canada. Leaders in the real property bar raised the alarm when title insurance mutualized the most value-added and technically black-letter element of a real estate file, the title opinion. The title opinion by the learned and independent lawyer was replaced by risk assessment performed by staffs of underwriting lawyers and clerks. As those leaders predicted, lawyers with varying levels of expertise began flooding the market with residential purchase deals at rock-bottom prices because the part requiring the exercise of brain cells was no longer in demand. In many parts of Ontario, real estate deals are no longer stand-alone legal services but rather loss leaders offered to attract clients for more remunerative services, such as buying and selling businesses, tax and estate planning and litigation. In other words, many real estate files now occupy the equivalent of the dairy fridge at the back of the grocery. Perhaps today’s new lawyers, considering whether law is all about Charter challenges, race and gender conflict, and Internet law, may not decry the disappearance of jobs in real property conveyancing. Alas, ‘twas never so. The hollowing out of an entire sector of law has affected us all.

The 1990’s heralded the collapse of Robert Campeau - who at one point seemed to own Toronto – and Olympia and York Empire’s Canary Wharf development, which flamed spectacularly in insolvency proceedings. Day after day, the stalwarts of Toronto’s banking law bar appeared in front of Justice Blair to argue priority over the remains of O&Y’s beached carcass. The work was exciting; there was a lot of it. Yet every lawyer’s brown dossier had a whiff of the morgue about it, of legal process undergoing rot.

Holden Day’s was the largest law firm collapse in Canadian history, until Goodman and Carr quietly locked its doors in 2007. This time, the dissolution occurred after its entire leadership woke up to the same economic epiphany. In the managing partner community, the wisdom of the day held that large regional firms were too small to serve business in a global marketplace, and too large to glue together with a firm culture (the jury may still be out on this advice). On one end of the market for law, large firms are lobbying law societies for the freedom to make offerings to capital markets. On the other, the Internet age’s self-diagnosing and self-medicating public has spawned swarms of do-it-yourselfers in the courts. With money woes at the top and no money at the bottom, the law firm as professional incubator has morphed into a battery farm.

Two recent and simultaneous failures further illustrate how fragile this professional industry can be: the Montréal-based Heenan Blaikie LLP, and the upstart impossible firm, the Octagon Law Group headed by the allegedly late Javad Heydary. In Heenan’s case, in the absence of a binding firm culture, the law firm followed the curves of purely rational economics: to funnel work into overloaded juniors at different entry points, and to maximize returns for equity partners. After its end, the firm founded on the strength of its labour and employment group now faces embarrassing law suits over the way it terminated its lawyers and staff.

In contrast to the scattering of the Heenan enclaves, the Heydary firm disappeared under a cloud of absent trust monies and its principal’s death (of which the Law Society was said to have been “80%”certain). It was the impossible law firm because one could never understand how a combination of plaintiff class actions, immigration, cold-call commercial litigation and carriage trade family law could generate enough cash flow to pay the rent atop the flagship Mies van der Rohe building at the Toronto Dominion Centre. Rent, more than anything, is the force of gravity in BigLaw.

The Heenan explosion and the Heydary implosion showed us that a law firm dependent on expansion instead of client goodwill for sustenance takes on many of the structural frailties of a multiple-level marketing organization (known as the ‘MLM’, the legitimate cousin of the outlawed pyramid-selling scheme). The one and perhaps only distinction between the expansion-dependent law firm and the Tupperware party is the absence of direct financial incentive for hiring underlings. For this reason, a crisis of confidence at the apex of the triangle can result in the equivalent of a run on a bank before those at the bottom detect signs of the collapse.

There are an awful lot of customers for a service whose business model is in trouble.  Never has there been greater clamor for order in the court, amid the sea of pro se litigants in the civil and family courts. Canada is indeed discovering and uncovering a need for law where in the past we turned a blind eye or buried our heads in the sand. It is a much more nuanced, sensitive need for law that is hard to translate into a hefty up-front retainer or a bet-the-farm civil action.

What must lie ahead, if we are to reconnect to society’s real need for lawyers, is the renewal of our professional purpose. What can the new lawyer offer that the anachronism (like this writer) cannot? Diversity, for one. In the Ontario legal profession, the equity and diversity file has historically invoked skills of application more than cognition, policy handbooks more than classroom training, stick more than carrot. As a point of reference, we have espoused (and imposed) virtues such as tolerance and belonging in order to foster greater participation within an established social order. “Become one of us” actually implies a one-way benefit to the inductee. While we often follow up the welcome with a belief and/or statement that “diversity makes us better,” we rarely take active steps to achieve this wished-for betterment.

In Ontario, the seismic forces arising from the diversity of Canada are amplified along many fault lines requiring lawyers to serve as navigators. We see the cracks forming around the distribution of resource and infrastructure money among a heterogeneous, young urban core, increasingly ghettoized bedroom communities orbiting Toronto, and a greying and homogenous rural population. Our immigration culture includes ethnic cuisine, but excludes ethnic family law.

The social and economic transformations of Ontario society, as well as its place in Canada and the world, will have a profound impact on every aspect of law. Every legal concept from the reasonable ‘man’ (no longer the man on the Clapham Omnibus) to parties’ expectations in contract will need to adapt to an absence of normality in the conventional sense. The so-called legal futurists have not realized that the future is not about a market for legal services. Rather, the future is about the law itself: how it has shifted from Hart’s concept of words backed by force to words backed by consent and the pressure of the crowd, or how judge-made “unwritten” constitution has deflated measures for democratic reform. It may be a lot to take in, but so was a legal education. 

‘Adapt or die’ does not mean go wherever change takes you. Rather, it behooves you to know what is happening and to find a better purpose, for yourself and for all lawyers.

R. Lee AkazakiAbout the Author

Lee Akazaki specializes in civil litigation and practises with Gilbertson Davis Emerson in Toronto.

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