Yves: You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.

Welcome back listeners. After a brief summer break, we thought we’d kick off a new season by bringing back my good friend, Jordan Furlong. For those of you who don’t know Jordan, he’s an analyst and forecaster for the legal sector, focused on the most important trends, shaping the provisional legal services, and the formation and regulation of lawyers. You can follow him on Twitter at @Jordan_law21

Though he’s well known for his past postings as a blogger on Law21.ca, he has migrated his longer form writing to Substack, where he writes a free newsletter, a must-read for those interested in the legal industry. He writes his newsletter on a range of critical topics for the legal profession.

Jordan, welcome back to Modern Law.

Jordan: Yves, thank you very much for having me, it’s terrific to be back.

Yves: Let me just ask you a little bit about the Substack. Why the move from Law21.ca to Substack? What drew you into the Substack world?

Jordan: I think a big driver for me, Yves, was the opportunity to get back to kind of a periodical publishing basis. The nature of blogging is that it tends to be kind of sporadic. When the thought occurs to you to write something, you write something and it comes out, and that’s fine.

But I found I was writing quite sporadically and not very frequently. And as you and I both know, there’s a lot of benefit to having an actual periodical platform or context, where you are kind of requiring yourself to write once a week or once however often – for me it’s once a week – for your readers.

And I’ve found that that has been very helpful for me in both motivating me to keep writing, and also to really dig deeper into what’s going on out there in the world, because there’s so much to talk about and there’s so many different topics to explore, that it kind of keeps me on my toes a bit more than it has in the past.

Yves: So it’s a bit of a self-imposed pressure to feed the reader I guess. The reader expects those regular updates more so than they would through a blogging platform.

Jordan: Yeah, exactly. And I think people have responded well to it, so I think it’s finding its niche. But it’s still early days, you know, I’ve only been doing it since about March. So I’m hoping that after a full year, I can kind of take a look and say all right, where are we at, and you know, are there other elements I can add to it going forward? We’ll see, but you know, all in good time.

Yves: I do recommend people sign up because it’s a great read, I mean so true to yourself, and I mean we still recognize the good old Jordan in the Substack reads. Being someone a bit like me at the intersection of media and the legal industry, I’m just wondering, what do you think about the whole media environment right now?

You know, we did a lot of stuff, I don’t know if you saw it, but the CBA actually held a conference on judicial independence, but a lot of the themes it touched upon was media, the underfunding of the media industry, which kind of parallels a little bit the underfunding of the legal industry, or the justice system rather, not the legal industry, the justice system. And so you know, combined together, we’re seeing that the courts and the justice system are struggling a little bit to get the stories out there and to get legal information out there in an accessible way. Any thoughts on that?

Jordan: Yeah, well it’s certainly all of a piece, right, with the general underinvestment that we’ve experienced over the last couple of decades in what you could call the public square. You know, not to get particularly political about it, but we spent about 20-30 years now in contexts that are very much low techs, and all about – what’s the term that we used during the great financial crisis, the idea that we need to be constantly cutting back and reducing our public spend.

And I think we’ve narrowed the public square to our great detriment. And with regard to media, that’s a very deep and difficult can of worms to work out. I’m not sure what the solution there is. I suspect it’ll probably start with regional or micro or local news. And I think if we can come up with ways to – and I think we can – to fund and restore and encourage local news at the municipal level, at the neighbourhood or community level, and the regional level, then I think we’re well on our way to fixing that.

With regard to I think the issues that you touched on from legal education and judicial information and so forth, how do we get people – get this information to people. I think that issue also comes in, brings in the whole question of well, how much interest do people have in knowing about this kind of thing? It’s like legal education or public legal education, I think one of the first barriers that it runs into is that a lot of people don’t, without a lot of prompting, necessarily care a lot about this.

They should, it’s easy for us to say, but you should care. You should care about your rights and about this and about that. It’s like, “Yeah, but you know, I got a lot of things going on in my life.” And so for many, I guess there’s an element of civic education and all of that, but I think as a justice system, when we’re trying to improve things such as access to justice and what not, we really need to spend a lot more time first listening to people and finding out where they’re at, and meeting them where they are before deciding that these are the messages and this is how we’re going to send it out. I think we could do a lot more listening first before we get to talking.

Yves: Let’s talk a little about this whole grand experiment, which is X, formerly known as Twitter. You’re still on it. I’m still on it in my own quiet way. I still get a lot of my information there. I guess you do too. It seems to be that the lawyers are sticking around. A few have dropped off, but it’s kind of difficult to quit that particular feed of news.

Jordan: Yeah, it is. I still use it. Partly it’s because I have a legacy following, about 15,000 people following the account, which is not that many in the grand scheme of things. But there hasn’t really been a rival network that’s come up yet to replace it. And we’ve all been through the mastodon, and posts and threads sparked up briefly, and I think has kind of trailed off from my impression.

I’m experimenting with a blue sky at the moment which I kind of like, but again, network effects, right. The more people you have on a particular platform, the better. I worry that part of the reality that’s come with the Musk acquisition and dismantling of Twitter, is the end of what we might have considered a common public utility of online information and discourse.

That was already in peril, I think to a certain degree with the polarization of our public square and political life in the tribalism, that we see more and more of. But I think it’s a shame. I think we definitely have lost something. I’m not sure how we’re going to get it back necessarily.

With regard to lawyers, I don’t know. I think that some lawyers use it on a regular basis for business related reasons and marketing and business development and just profile building. But I think for, again, for a lot of lawyers, it’s just like, “Mm, doesn’t really strike me as immediately useful or helpful to me,” and lawyers tend to be very much short-term driven, deadline-driven, “What’s the next thing for me to do?”

So yeah, there’s still a law Twitter out there, I guess which is good, but yeah, I fear that that moment in time has passed and I’m not really sure what’s going to replace it.

Yves: Right. So you’ve been writing on your Substack newsletter quite a bit about some of the changes we’ve seen. I mean you’ve discussed a lot about what the new workplace is going to look like, some of the demographic challenges facing the profession. But you’ve also spent a little bit of time discussing generative AI and what that seems to portend for the practice of law. And it raises a bunch of issues. And I’m just wondering like generally, you’ve made one observation in one of your posts. You wrote that lawyers’ typical response to a novel and disruptive technology is to downplay it, ignore it or ban it.

Many lawyers seem genuinely excited though about the potential of generative AI. That’s new and that’s important. What is it about generative AI that makes them excited?

Jordan: I think that the number one draw for a lot of people, and lawyers I think very much included on this, with generative AI, just first of all, how remarkably powerful and creative this thing is. I mean the first time I wrote about it at the Substack, it’s funny, because I kind of debuted this Substack the same week GPT4 came out, by a complete coincidence. And so I’ve been writing about GenAI for a little bit.

But I kind of refer to it as a magic wand, and kind of tongue in cheek because of course, there is no magic involved with it. But in the sense of the experience of using it, it really does kind of blow you away in terms of the breadth and the scope of what it can do, even in these very, very early stages.

So some of the attraction of it is just its remarkable capacity. Another attraction of it is its extraordinary simplicity of the user interface. It really is just type in a prompt or write a bunch of words, or ask a question. And if you’re using a voice to text, which a lot of people are, especially in mobile, then it’s literally just ask a question, speak it out loud and you get all this stuff. And there’s no training, right. There’s no – you don’t have to sit down for two hours in a room with people as they take you through the process. “Click this and push that and do this and do that.” It’s incredibly user friendly.

Yes, the more sophisticated prompts that you use, the more prompts and the more thought you put into the process of using it, absolutely you’ll get better results. But right out of the box, it’s remarkably easy to use.

And I guess the last piece of if it is that I think it’s kind of fun. It’s a fun thing to use and to fiddle around with. And that’s something lawyers are really unaccustomed to in most things that they do, and especially with regard to their technology. So I think we’re all a little bit like kids in a candy store with this. But I think especially because generative AI is built on a large language of models, and I think I kind of said early on, you know what, the law is a large language model when you kind of come down to it.

Yves: It is.

Jordan: So I think in a lot of ways, we are drawn to generative AI. And I think that’s why it will have a lot of uptake with lawyers now and going forward.

Yves: I suspect there’s going to be a lot of uptake with it too. And I suspect that it’s going to be integrated into practice quite quickly. I should just caveat that by saying that there are some studies coming out I’ve read about this week, saying that you know, usage has dropped off a little bit, but doesn’t sound like it’s significant. And you know, maybe people are coming to terms with some of its shortcomings. Still, it’s hard to imagine for me a future in which lawyers are not using it daily.

But what does that mean for the business model, the law firm generally? How do you see that? Like where are some of the different directions we might see the industry go in?

Jordan: I think the likeliest first impact that we’ll see generative AI having on, in practical terms with any kind of a law practice environment, probably will be not on the law practice side or the lawyer work side. I think there’s – I get the sense a number of lawyers are using it already, but they’re kind of using it to I think like draft correspondence or summarize documents or work that is – you could call it administrative or clerical or transactional, that kind of thing, but stuff that isn’t necessarily engaging legal abilities and skills and so forth.

I also hear a lot of talk, which makes sense to me, that it can be employed for marketing and for content generation. Now I shudder to think about what AI generated content for marketing might look like, and I don’t think it’s necessarily going to improve that whole area for the better. But that is like the lowest hanging fruit in a law firm, especially because the further away you are from the stuff that lawyers really care about, the easier it is to make change.

And obviously the reverse is true as well. So I think lawyers are like, “Oh. But for marketing and for admin, go for it, I don’t care, that sounds like fun.” But eventually it will I think become incorporated in the work that lawyers do for clients. Part of that will be: we’re going to see more and more large-scale legal tech platforms incorporating generative AI behind the scenes.

I mean obviously Thompson Reuters and LexisNexis have already rolled this out. A major competitor called Casetext was probably the first one on the scene and Thompson Reuters went out and bought them, so you know, hurray for duopolies. But we will see other platforms. And a lot of smaller, a lot of startups are employing it as well.

So to a certain degree, lawyers will start using generative AI and in their practices without even necessarily realizing they are using it, because it is kind of built into the system. So I think that will be a part of it as well. But in terms of the conscious choice to incorporate these tools into what we do as lawyers, I think that’s still going to take time for that to become a bit of a wide scale adoption. I think that people on the bleeding edge, leading edge, are already out there doing this kind of stuff and playing with it.

But my sense is that the – I think because we haven’t – number one, we’re still very early in the development of the technology in general, and secondly, although we have seen the development of legally trained large language models come extremely fast, all things considered, we are still some distance away from wide scale adoption there.

I mean yes, Lexis and Thompson have these cool tools out there. They’re also charging an enormous amount of money for firms to use it. So your average sole practitioner or small firm, it’s like that’s not realistically something I can use. So it’s going to take several months, many months, and probably a scale of 2-3 years before we kind of see this wide scale adoption.

But I agree with you. I do think it’s going to be inevitable. There’s very little that lawyers do on a day-to-day basis right now that in some way generative AI will do one of three things. It will amplify the ability to do something, you know, you can do more things at scale. It will augment. You as a lawyer can accomplish more and different things. And you can kind of share your work a little bit. I’ve often heard generative AI as an intern that you can train, and I think that’s a good way of looking at it.

And then straight up replacement of things that you used to do yourself, and the amplification, augmentation replacement process, that’s going to take some time to shake out until we figure out what all that looks like. But we are still very much in the experimentation phase and it’s difficult to draw firm conclusions. But like you, I cannot see that – I think there’s going to be a pre-generative AI, period in the legal sector and a post Gen AI, period, in the legal sector.

We are right on the pivot point at this moment. So it’s remarkably exciting and it’s really cool, but it’s also really difficult to fully forecast the eventual scope here.

Yves: That’s interesting because for someone who’s emerging from, or is coming out of law school, or has taken the bar or doing their exams for licencing, that particular individual, I’m presuming, comes into post-generative AI, cohort of lawyers. I mean should we be thinking about their formation in some way? Should law schools be turning a corner on how they view the incorporation of a technology into the formation of lawyers, or is this just something that the younger cohort of lawyers are going to intuitively take on by themselves, and maybe actually just end up teaching the older generation how to use it?

Jordan: That’s very possible. That’s often been the case with other types of technology. For this one, because it is so, as I say, user friendly, I don’t know that younger practitioners will necessarily have an advantage over older ones in terms of the capacity to use it. But absolutely, I mean the challenge for law schools, and for licensing authorities like law societies here, is kind of immense.

Now because here’s the thing, right; the point of law school and the point of bar admission and to a degree, articling I guess, the reason we go through all this kind of rigmarole is that we say this is what someone needs to do in order to be fully prepared and competent to become a lawyer, so that when you are giving your law licence, it’s like, “We are satisfied as the overseers of the profession that you are skilled enough and knowledgeable enough to go out there and practice law.”

Now I don’t think that’s been true for a long time in most cases. And I think that the lived experience of a lot of lawyers is that, being a lawyer, they did not feel competent and confident to be able to do this, that they were not in fact prepared, even after four years and enormous amounts of money spent to get themselves to that point. And in the last couple of years, before GenAI kind of popped up under our consciousness, I was working pretty closely with law societies here in Canada, did reports for the law societies in Alberta and BC, talking about lawyer competence, and licensing and addressing issues like articling,and the law degree.

And other regulators are working on this Federation of Law Societies of Canada has been diligently pursuing a new arrangement for what’s called the national standard for what law schools should be teaching in order to get into a bar admission course. And I’ve been kind of impatient about this whole process, saying no, look, we’ve got to upgrade this. We aren’t preparing people for the practice of law adequately. And they’re arriving in the legal profession and they are licenced but they’re not really competent/confident.

So a lot of the work I was doing was focused on how do we prepare someone so that they can in fact go and be and do all the things that we have given them the licence to do? And now along comes GenAI, and that blows it up even further, right, because if the question we’re asking is: what is this new lawyer going to do for the next 10, 20, 30, 40 years of their career, what does it mean to be a lawyer and what activities will you be engaged in and what will people expect you to be competent and skilled at and so forth.

I mean we had a pretty decent idea of that I think about a year or so ago. But I think it’s kind of blown up now. It’s like, I don’t know. A lot of the competencies that you learn in law school and that are tested on bar admission courses and getting legal information knowledge, it’s commonplace now that current Generative AI programs can ace bar exams of various kinds in both US and Canada.

So what is a lawyer going to do? What does a lawyer’s value and productivity lie in, in a generative AI era? And we can guess at that at this stage, and maybe make educated guesses? But you know, but if you’re in a law school or a bar admission course, you can’t guess. You’re supposed to know. And so it’s really challenging.

It's one of many cans of worms that have been opened up here.

Yves: Well, the other one I think is you know, I don’t know to what extent generative AI will, want for a better word, replace young associates or even articling students’ work performed by them and what that means for their education and their formation. How are we going to keep those bodies busy? Or how are we going to prepare the future generation of lawyers?

Jordan: So that’s a really important question, because I think what that question cuts to, and the particular point the GenAI development has shone a harsh light on, is the kind of disconnect we’ve had between the profession as represented by regulators and law societies and what not, and the practice of law. Right, because it is I think widely, tacitly accepted that no, you’re not really fully competent to become a lawyer as soon as you enter the profession. I mean even after articling, you know, it’s a good question. Articling is a separate issue we can talk about later if you like.

But the conceit I guess has been, okay, that’s fine because these new lawyers, they’ll get a job in a law firm somewhere and someone will show them the ropes, and they’ll figure all this kind of stuff out. And this is more or less what law firms have been doing for year after year after year. You get a job in a firm of various kinds, I mean, some people go solo right out of law school, but that’s pretty much a distinct minority. Most people work for another lawyer in some capacity and “learn the ropes.”

And how do you do that? Well, you’re doing a lot of basic work, straightforward work, we call it drudgery. We’ve all done that, document review and basic research and due diligence and digging through boxes of stuff and all those kinds of things. And technology has already been replacing a lot of that stuff for the last 10 or 15 years through E discovery and document automation and so forth.

But the idea essentially is that we have more or less outsourced to the private sector, to the private bar, the process of continuing the development of lawyers post licencing. And I’ve never particularly liked that. I guess it’s kind of worked, but yeah, it’s you know, it’s neither principled nor particularly well organized.

But now, again, as you point out, here’s our problem: a lot of that basic straightforward work, that’s going away, because it is I think inevitably going to be consumed to a greater or lesser extent by generative AI engines. And so the question it becomes, okay so how do we actually continue the development of these lawyers? Because from the law firm’s point of view, some law firms to a certain extent will say, “Okay, we’ll take on an articling student or two, kind of as a professional duty. We’re not going to make any money off them and they may not stick around, but okay, we’ll do it.”

But when you get to the point of associates or young lawyers, look, we need them to make money for us, right. The central point of a law firm is that if you’re a lawyer there, and especially if you’re not – even if you’re not an equity partner – but especially if you’re an associate or a non-equity partner, your job is to work and to bill.

And going back to your point, if there are fewer tasks that human lawyers are doing, and/or, more likely I think, the amount of time it takes to do them is going to shrink considerably, then now there are fewer hours in the week, if you will, that are being taken up by this lawyer’s work. And so the law firms say, or could say, it’s not profitable for us to have these articling students and associates. We just don’t – that kind of work isn’t necessarily there. This is one of the pieces I’m working on at the moment actually, is what are the implications for lawyer development, for the workforce of the future?

And I think the answer of all that has to come down to: we are going to have to rethink the process by which lawyers are developed. And this goes back to my whole thing about lawyer formation. It’s not enough anymore to give them a licence, even if they’re only kind of halfway or three quarter competent, and send them out into the private sector and say, “You know, someone will guide you the rest of the way there.”

I don’t think we can count on that anymore. We’re going to have to formalize this in a very different way.

Yves: One of the things I find sort of remarkable over the last few months is that when I speak to – and I don’t know what you’re hearing – but when I speak to law firm leaders, I mean I’m getting a lot of the same refrain which is like, we have literally never had this much work. And what’s perhaps more shocking is I’m hearing a lot like, we have to turn away clients. We just don’t have the manpower, we don’t have the ability to turn things around on a timely basis for the client, so we have to turn them away, and regrettably.

But then I wonder what does that mean? Like are these law firms going to leave all that work on the table or are they going to start – are they ever going to shift to sort of a different kind of mindset, a growth mindset where they’re saying, okay now, you know, we’re struggling with hiring and retention practices, there is quite frankly a labour shortage, and we do now start contemplating a future where we are using automated technology to do quite a fair chunk of the work.

And like, I don’t know how that gets organized. I suspect someone’s going to start thinking about that seriously and then shown a new sort of business model, but am I crazy or is that just – is that going to take a little more time than I think?

Jordan: Oh I’m sure it will take more time than you and I would both think and would wish. As I’m fond of saying, never underestimate the degree to which lawyers will resist a change to their fundamental business practices. That makes them extremely uncomfortable, as I can attest to after 20 years in this business.

But yeah, your observation about the firms turning away work because there’s just so much of it and they don’t have the capacity to manage it, I guess the good way of looking at that is oh wow, we’re such good lawyers, and such a good law firm, people just want to give us so much work, let’s pat ourselves on the back for being so great and working 100% capacity.

Another way, a more accurate way of looking at it is that it is a failure of your model, of your workflow model, because the work is coming in and you can’t manage it because you don’t have and can’t hire enough people to do it. And it’s because you keep thinking – law firms – that the way to get work done is to give it to a lawyer and they will do the work. And that is the default setting. That is hard wired. It’s so deep into the subconscious of lawyers and law firms that it’s very difficult to help them to understand there are other ways in which legal tasks and work can be done that don’t involve a lawyer’s real time, personal attention and effort.

And on the one hand, it sounds crazy to have to say that out loud, because when I look at it, like it’s really obvious. But it’s a mindset that’s really really difficult for law firms to get past. But once you can get past it, then you kind of realize, oh hang on a second, maybe I don’t have to be turning that work away. Maybe I just need to find more efficient, effective ways to do that work at scale. So I don’t have to have bodies. I can have systems. I can have technology that will help me to do that.

I mean that’s the crazy part of it, is that law firms are productivity graveyards in so many ways, productivity as we understand it, right, as the business world defines productivity, essentially getting the maximum amount of output from, roughly speaking, the minimum amount of input, right. You know, with the resources you have, can you produce a small pile of output, or a larger pile or an absolutely massive one?

And productivity means you are always increasing the amount of results and outcomes and output that you can generate without necessarily having a proportional or equivalent increase in the resources you consume. But law is one-to-one business. One lawyer does one piece of work for one client at one time. And again, hard-wired, we need to move past that hard wiring. The firms that do, the lawyers that do, are going to be immensely successful because they’ll be the first ones to realize I can get a lot more work done without – and I can use technology. It doesn’t have to be GenAI. It can be any kind of technology if it’s usefully employed, and better use of different tiers of professionals.

Yeah, there’s lawyers, there’s also paralegals, there’s para-professionals, there’s technicians. There are researchers, there are clerks. And then managing people well and upgrading their skills, we do a terrible job, generally speaking, of upskilling legal professionals in our firms.

So yeah, I mean GenAI is going to, I think, catalyze a productivity crisis in law firms. And it’s not entirely clear to me how law firms will react to that. Some of them are going to respond well. I think a lot of them are just – I think they’ll just be defeated by it. They’ll be like these firms that are just swamped with work and they don’t know what to do. And I think it might eventually even bury them.

Yves: I have a question about generative AI, these court directives. We saw one come out of Manitoba Court of Kings Bench, and the Yukon Supreme Court, directives that are basically requiring that lawyers disclose that they’ve used ChatGPT, in the drafting of their submissions. Does that make any sense?

Jordan: I suppose you could say it makes sense in the broadest terms because at least the court is bringing to the attention of lawyers the directive of don’t use a publically accessible, hasn’t been updated since 2021 database to produce information that you can’t personally attest is accurate, and give it to me as a judge.

But I don’t think that needs a directive. I would have thought that would be commonsense, or basic competence, right. And we have examples, I mean famous ones, of lawyers in various places who asked GPT for cases, and the AI gave them cases, and they gave them to the court and court says these don’t exist, and oh, scandal, everybody’s really upset.

But I think that the court directives are kind of an overreaction the other way. Because again, saying to lawyers, “Well, if you’ve used AI in the production of this information, well, you can’t do it unless we give you permission,” it’s like come on. Everybody’s going to be using this quite soon. They’re going to use it even if they don’t realize they’re using it. And what’s the purpose here? What are you trying to accomplish? If your goal is don’t give us made up cases, there’s other ways to kind of assure that.

So yeah, I think it’s largely unhelpful. I think it just encourages the negative view that lawyers can have of generative AI, which is unfortunate. I think we should be building a positive approach to it, and the idea of work with it in responsible ways. My view on it is that look, if you’re a court and you’re worried about GenAI, don’t worry about lawyers, because the vast majority of lawyers know better than do give you something that’s not made up.

Worry about all the self-represented litigants who’ve been flooding courts for years, because I guarantee you, they’re using ChatGPT and whatever else they can get their hands on, right, and they’re submitting stuff. And they don’t know, right? Lawyers know enough to say, “Hang on, this sounds off. This rings an alarm bell.” Lay people don’t have that alarm bell. So again, and that just opens a door to a different room, a nearby room, which is: how are we going to help people who don’t use lawyers to help them navigate the legal process? How do we continue to empower them and to inform and educate them and give them resources that they can rely upon?

If I’m the court, or if I’m in a court or I’m a judge, I would be thinking a lot more about that issue than the lawyer side of things.

Yves: That’s a fair point too about the self-represented litigants. I mean they’re obviously going to use it anyway. I think lawyers are going to use it even if they don’t disclose it. Tell me a little bit about what you’re hearing from elsewhere in the profession. The other big challenge it seems to me that law firm leaders are facing is that they still haven’t figured out what to do with the workplace.

Now I don’t think that makes them particularly exceptional in the sense that I think every industry is kind of trying to grapple with the same thing, from government to private industry to whatever. I mean, but what’s at stake here for law firms, which are you know, peculiar workplaces in normal times? What are they struggling with the most?

Jordan: So I think there’s a few things going on. And yeah, the whole question of – and it’s framed differently. Some people say that the back to work thing, the hybrid thing, the remote work thing, you know, etc. etc., and most of this is the result – it’s weird to sort of think, wow there’s something going on in the profession that isn’t AI-related necessarily – but a lot of this stuff does come from the pandemic and from the period where people, lawyers, did have to work from home, couldn’t come to the office. And hey, it turns out it actually works.

And so I think the fact that lawyers and firms both had to acknowledge and recognize that it was not necessary to be in the office to get work done, that was a major shift in the profession, and a big one, right, because the workplace is almost a bit of a sacred place for a lot of lawyers. And it’s where they really consider that that’s the heart of the firm, it’s the heart of my professional identify.

And so the difficulty I think that firms now have is that they don’t know how hard to push and they don’t know which directions to push. So most of the firms that I’ve been dealing with and talking with and reading about are kind of setting on a somewhere in the range of about three days a week in the office, we’d like you to be here, or you know, more time in the office than at home.

And as a general guideline, yeah, that makes sense. I think that it’s different for different kinds of lawyers and different kinds of practice groups. Litigators are going to have a very different view of the importance of being around each other to brainstorm and to bang together Saturdays and so forth than maybe commercial lawyers or transactional lawyers or IP lawyers, or what have you.

It’s also going to differ in different places. Like the vibe in a downtown Toronto law firm is going to be different from the one in Winnipeg or in Fredericton or Victoria. So there’s no one size fits all solution to this. The main point I’m trying to make to law firms these days is first of all, when you say to me, “We can’t get people to come to the office. What can we do to get people to come to the office?”, the first question I ask them is why do you think they don’t want to come to the office? Why is the resistance there?

And there are some firms that aren’t even asking themselves that question, which is really not good. But to the extent that they do, they will realize it is very – there are a myriad reasons for it. There are very legitimate reasons. So someone might say, “I’m a parent of a couple of kids and maybe I’m a single parent, maybe I’m a double parent, whatever, but I cannot responsibly be away from home all the time.” Or, “I have the care of an aging or vulnerable individual and I’ve got to be around for that.”

So you know, there’s that level of flexibility that people require because our personal lives are complex. There’s also the idea that in a lot of cities and a lot of locations, the commute into and out of the office is increasingly difficult. Here in Ottawa, where we have an unmitigated disaster of a local transit system, that’s a real issue. That’s a real problem. If it takes you an hour, and hour and 15 minutes to come into the office, and the same to go out, it’s just not worth the candle.

There’s also the issue of – and this I think is the big one especially that I get law firms to kind of focus on: what are they coming into the office to get? I mean I know when you talk to a lot of veteran, experienced, senior partners especially, they want people in the office because that’s what they’re accustomed to. It’s the buzz and the hum of the office and having people around and so forth. That makes them comfortable, because again, this is their home away from home, right.

For a lot of them, it’s where they prefer to spend their time. And they miss that, and they want to bring that back. There’s still a lot of sense of, “I want things to get back to normal.” And I keep saying to people, normal’s gone. I know that’s really difficult to absorb for a lot of people, but that’s not coming back.

Or a lot of firms will say, “Well, we need people to be here because that’s how our young lawyers learn. They’re mentored by our partners and they’re brought up into the business.” I’m like really? Because that’s not the experience a lot of these associates and non-equity partners have. They have the experience of having to chase you down to get any amount of your time and your attention.

Yves: But to be fair, some do. Like there are – I mean I would say that, you know, probably the best lawyers out there, there’d probably be a correlation between them having had a fairly good mentorship experience. And so I don’t think it can be neglected, but you know, I guess, what does it say? Does it say that the firms have to have a more purposeful approach to building cohesion in their firms? We throw around the word culture a lot too. I don’t know if that means anything more.

Jordan: Oh yeah. Well every law firm I speak to says, “Well you know, it’s really important that we maintain our culture.” I don’t often say this because I’m too polite, but I’m really tempted to say, “What precisely are the features of your culture, and then tell me how they’re different from five random firms I could point to right now in your competitive space?”

And for the most part they’re not different at all. Plus, and I’ve written about this, what partners and leaders and people, the senior people think that the culture is not the same thing that associates and staff and other people experience at all. And again, its all kind of related.

But when it comes to the question of getting back to the office, the two questions I ask is: why do you want them there, right, and you may have good reasons, but maybe you need to articulate them. What is the actual benefit to them and to the rest of the firm for people to be in the office in physical proximity to each other?

And a related question to that is: and what are you doing within this firm to make it worth people’s while to come in? Because if they’re just coming in to sit in their offices and work, they can do that at home. They should do that at home. But if the whole point of a firm is that you are more than the sum of your parts, which is one of the premises of a law firm, you know, maybe more in theory than in practice, so what are you doing to make sure that people are meeting with each other, right?

So again, if I want people to say, “I want you in three days a week in the office,” great. On one of those days, you and your team members, people in your group or your practice area, you’re getting together and you’re going to have a brainstorming session. You know, okay, “Hey, what’s going on? Who’s got troubles, who’s got issues? What’s going on with this file? What can we give to you? Who’s struggling with a document? Who’s struggling with a strategy there? Let’s talk about this sort of thing.”

So you’re getting opportunities for people to solve problems in real time and learn from each other in real time and get that kind of input and advice in a centralized, structured kind of fashion. You’ve also got time to say, “Okay and on Thursdays, we’re setting aside a couple of hours and we’re going to be having a business development training session. We’re going to answer your questions and give you pointers on all this kind of thing and we’re going to learn from each other, etc.”

And you’re creating opportunities for people to gain value from being around each other and being in the firm and being in proximity. And you have to be, as you’ve said, very kind of intentional about this, and give people a reason, and have a strategy. What’s your strategy to bring people into the office, and what outcomes are you hoping to achieve by doing that?

These are questions firms have to ask themselves and come up with answers, and once you’ve done that, you can present that to your lawyers and to your staff and say, “This is why we have the policy,” being able to say to your lawyers and your staff, this is our policy but this is why we have it. And this is the benefit to you and the benefit to us, and the benefit to our clients, and that I think just makes the whole process much more effective.

Yves: So to close out the interview, I always think of September as the beginning of the year. Some people say it’s January but I think it’s September. But what do you have your eye on? What are you going to be watching closely for the next 12 months?

Jordan: I think with the change in the season into September, into the fall and winter, we’re going to see the rubber hit the road in a lot firms and a lot of these kinds of issues. I think that a lot of firms have been able to kind of finesse the issues and the challenges of working from home, working in the office, because summertime’s been more casual, and people are on a vacation and so forth.

But come the fall and the winter, when we’re all gathering back in together, I think that’s when it really is going to be decision time. And if you have a policy that says you’re in the office three days a week, you got to look around and say, so who’s not in the office three days a week? And a lot of times you know, it’s going to be the partners, not the associates. I know a lot of firms that have not really dropped the hammer on partners to say, “No look, seriously, this applies to you as much as to anybody else.”

So there’s maybe a bit of a day of reckoning coming on policies of this sort, because again, when you look at staff members and associates and junior lawyers, even junior partners, if they look up and they see that the senior folks and the most experienced folks are in the office one or two days a week at most, they’re going to say, “Well screw this, I’m not following a policy that the leaders of this firm won’t follow.”

So I think we will see over the first several months of, as you say, the new season, we’re going to see firms grappling with how committed they are to this policy and how well they can maintain it.

Also, we are, you know, it’s funny to kind of reach back to this topic again, but I am seeing and hearing a lot more talk about new variants on Covid, and a lot of concern that come the fall, and again the winter, we may be looking at wide-scale spread of Covid again. And people having been out of the office, I doubt – I hope we don’t and I don’t think we will – get back to the whole point of having to shut offices down altogether.

But that’s also going to make it difficult for people to be in the office a lot, because they’re going to be sick, and they’re taking care of sick family members and sick relatives. I think Generative AI will continue to slowly work its way into law firms. But the ramifications of what that means for workflow I think are going to take awhile to filter through. So I wouldn’t be surprised if it’s like the spring or summer before we really start to notice some firms accelerating their use and accelerating the productivity that they will gain in that regard.

And I think I’m also keeping an eye – this takes us out of law firms kind of generally – but I’m keeping an eye on the whole articling process because when I’m having informal conversations with regulators and people in law firms, more and more, I really hear that articling is – it’s not really working out. We don’t have enough positions for people who are seeking them, especially for lawyers whose credentials were earned in other countries.

We’re not confident in the learning experience that a lot of articling students are receiving. And we’re worried about the harassment that they get in a lot of places. And we don’t really know what would augment or replace articling if it stopped working. So that’s a bit of a timebomb.

Yves: And what’s the harassment?

Jordan: These are reports. I’ve seen a report from Law Society of Alberta and also one from Law Society of Ontario, talking about especially women articling students, and articling students who are non-white or from various communities, minority communities. And they report being, you know, sometimes it’s overt, sexism or sexual harassment. A lot of times it’s just like abuse or being treated very poorly. And there’s more details in the reports from these two law societies. Alberta’s covered I think all three of the Prairie provinces. And I think that probably reflects, that definitely reflects the reality a lot of people have.

And again, that’s a whole separate conversation, right. We can and need to talk about how we are assuring the supervised practice element of the licensure process. But I think articling has been staggering for awhile and it might now be starting to stumble and maybe even fall.

So I’ll keep an eye on that one for the course of the next couple of years too.

Yves: Jordan Furlong, thank you so much for joining us again and sharing with us your take on what’s going on in the legal industry and profession.

Jordan: My pleasure, Yves. Thank you again for the opportunity.

Yves: Okay. Bye now.

You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.