JDs Rising

By Brett Clark

The future of the American legal world is flat.

I don’t mean banal or dull, but rather that globalization will soon catch up with our insulated profession, just as it has for countless others.  As Thomas Friedman observed in his 2005 bestseller The World Is Flat, workers in China and India are increasingly just as capable of performing American work from afar as we are here, thanks in large part to advances in communications technology.

The legal profession is, in essence, a service industry, similar in many ways to other service industries being transferred overseas via the internet.  Three unique factors have preserved our profession against outsourcing: (1) education requirements that can only be satisfied by attending an American law school; (2) strict licensing rules for each individual American state; and (3) rules and regulations that have yet to take advantage of advancing technology.

If these three barriers were removed, then what would prevent an attorney in Mumbai from doing much of the same work that we do here?  Frankly, there isn’t much-and as technology continues facilitate global communication, there will be fewer and fewer tasks that a person could not hire an offshore attorney for.  The wheels are in motion to dismantle both of the above described insulating factors.  As a profession, we should be paying attention.

Presently, every single ABA-accredited law school in the world is on American soil.  As a result, it would be cost prohibitive for a person from another country to obtain a JD from an American law school, take a state bar exam, and practice via the internet.  That may not be the case for long.  Former Michigan Law School dean Jeffrey Lehman is presently cultivating a new law school-in Shenzhen, China.  Lehman’s Peking University School of Transnational Law hopes to become the first ABA-accredited law school outside of the United States.  If the school succeeds in obtaining accreditation, then it will not likely be the last.

Of course, assuming that PUSTL eventually obtains accreditation, any graduate hoping to practice American law would still need to take the bar exam in the United States, which would not be cheap.  Even then, attorneys are limited to the state or states in which they are actually licensed.  Practice elsewhere generally requires admission pro hac vice.  But even that could change.  The movement toward a national bar examination has gained steam in the last two years, due to an increasing number of attorneys believing that they would benefit from the mobility between jurisdictions that a uniform examination would provide.  Lawyers could more easily represent clients from across jurisdictions, rather than dealing with often provincial, anti-competitive rules giving favor to local lawyers.   If, ten years from now, a law student can take a national bar examination in Minnesota and become licensed in Arizona with ease, then Chinese law graduates will almost certainly be able to do the same from Shanghai.

But even if a person could graduate from an accredited offshore law school, it would still be relatively difficult to maintain a healthy legal practice from abroad.  That almost certainly will not be true for long.  Attorneys are already able to conduct depositions through videoconferencing under most states’ rules of civil procedure and have been for years.  Inmates routinely make appearances in this manner.  Minnesota appellate courts have integrated videoconferencing into their own rules as well.  In this day in age, what prevents an attorney from making an oral argument or even examining a witness over Skype?  As the technology continues to improve, the perceptive disadvantages often attributed to videoconferencing will disappear.

This may seem alarmist to some, but the trend actually began years ago.  Many firms have already begun hiring India-licensed contract attorneys to conduct electronic document review, draft contracts and even perform legal research from across the Pacific.  The Washington Post observed this trend over three years ago:

In the past three years, the legal outsourcing industry here has grown about 60 percent annually. According to a report by research firm ValueNotes, the industry will employ about 24,000 people and earn revenue of $640 million by 2010.

Indian workers who once helped with legal transcription now offer services that include research, litigation support, document discovery and review, drafting of contracts and patent writing. The industry offers an attractive career path for many of the 300,000 Indians who enroll in law schools every year. India and the United States share a common-law legal system rooted in Britain’s, and both conduct proceedings in English.

I would venture a guess that most American attorneys would not be comfortable hiring attorneys who aren’t licensed in the US to perform such tasks, but if that is no longer an issue, there will be a substantially greater incentive to outsource legal work.

The flattening of the legal world is not necessarily a bad thing.  There may be extraordinary benefits for American legal clients, despite some scary implications for us.  At a minimum though, the ABA and state bar associations absolutely must bear the potential of a flat legal world in mind as they address the demands of American attorneys who seek the benefits of a globalized world.