Expand the Legal Talent Pool Beyond Lawyers, Mark Cohen Urges

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Must lawyers always do all the work of lawyers?

Not according to Mark Cohen, founder of LegalMosaic.com. Much like doctors hand off the drudge-work of visits to registered nurses and physicians’ assistants, the legal field needs to recognize non-lawyers do much of the same work — and can save their firm or the client corporations a lot of money.

Cohen’s comment came recently during the ABA/Thomson Reuters General Counsel speakers event. “Consider that vast constellation of tasks, that are really not so much the practice of law, but how legal practice is leveraged, and how it’s supported and delivered as a more efficient business,” he said. “And if you say, ‘Oh my gosh, well this is law. You can’t do that.’ Consider the medical profession.”

Until about 20 years ago, annual physicals were done almost entirely by the patient’s doctor, who was in the room probably 90% of the time, Cohen observed. “Today, the doctor comes in for the first five minutes and says, ‘Hey Mark, anything significant that’s been going on since the last time I saw you?’ Then, a battery of technicians does all sorts of things — I have an R.N, and every manner of person coming in, and they’re plugging everything into the computer.” The doctor synthesizes that information, then applies it to my situation and reviews it with me. That’s an efficient use of the physician’s time and expertise.

“My first suggestion, drop the term ‘non-lawyer’ and maybe use something like, ‘other professionals’, because I think non-lawyers just smacks of all the stuff within our legal culture that really has to be steamrolled and repaved.”

The field of law is evolving similarly, he explained. And any company’s general counsel needs to be aware of all available options when it comes to asking for these lower-priced, equally capable alternatives that could result from expanding these legal duties to other professionals. “Why is the legal delivery’s product any different? Why do we need the proverbial doctor in the office the entire time? Why can’t we tap into professionals who are perfectly capable and well-trained to do all the similarly important functions that these para-professionals are doing at the doctor’s office? Why can’t they do that in law as well?”

Legal operations— the business of law— is still often overlooked by a lot of GCs, whether it’s performed in-house, outsourced to legal service providers, or a combination of the two, Cohen noted. “It is critically important for GCs to consider what the appropriate resource is — either human or technological or a mix of the two.”

In the age of e-discovery, for instance, that technology has largely replaced untold billable hours rung up by high-priced law firm associates, as can outsourcing other repetitive, high-volume/low value tasks, he explained.

Cohen related his recent experience at a 3M corporate legal conference when he asked the audience how many were attorneys. Only half of the crowd raised their hands. “That said something very profound to me,” he said. “Here is a legal department that is really skating to where the puck is going to be — one that can truly separate the practice of law from the delivery of legal services and meld them together.”

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Mark Cohen, founder of LegalMosaic.com

Clearly, Cohen observed, 3M’s GC and his team had learned to leave the delivery of legal services to the people who are trained to do it, who do it well, and who learned it in B-school or engineering school. “And other legal departments should strive to do that, too,” he added. “So then the lawyers, particularly the GC and the senior lawyers on the team, can just abdicate those tasks and focus on the practice elements.”

Cohen admitted he was “delighted” that the ABA has begun admitting non-lawyers. “My first suggestion, drop the term ‘non-lawyer’ and maybe use something like, ‘other professionals’, because I think non-lawyers just smacks of all the stuff within our legal culture that really has to be steamrolled and repaved,” he said.

For those in the General Counsel role, Cohen advised them to stick to the broader legal strategy to best benefit the clients — that is the CEO, the corporation and its shareholders. “There is tremendous pressure from the C-suite saying, ‘Hey, I’m not going to give you a larger budget, notwithstanding the fact that you’re taking more and more work in-house. I’m going to throw more and different responsibilities on your plate, and not only do I expect you to be a guardian of this organization, but also, I expect you to be a very active business partner in advancing the interests of the enterprise.’”

That’s a very daunting prospect, Cohen insisted. “Talk about asking them to do more with less!” But it is indicative of the need for lawyers today to do much more than to know the law and dispense legal tomes.

If he were counseling a GC, Cohen said he would tell him or her to carefully distinguish between those things that are truly practice elements, and those that are not. “I would ask them, ‘When do I really need a lawyer? And what kind of lawyer do I really need for this task?’”

In many cases, he said, you don’t need a top-ranked, bet-the-company trial lawyer, Cohen argued, but instead could expect a similar result for much less investment with a lawyer who is serviceable, knows the particular jurisdiction where he or she routinely practices, knows the judges, knows the issues and can do a perfectly competent job.

“And I would tell the GC, you need to be able to distinguish between these two, because I don’t think that one-size-fits-all.”

ABA Immediate Past President Linda Klein appreciated Cohen’s insights at the event. “Mark’s forward-thinking ideas encourage all lawyers to consider the new tools at our disposal to improve client service and lawyer satisfaction with the practice,” Klein said. “Our law firm, Baker Donelson, successfully utilizes this approach, continually testing and incorporating new technologies to achieve these goals.”