Thinking Outside the Box

From The Practice January/February 2016
Crossing disciplinary lines

No matter how much time passes or how technologically advanced we become, we continue to wrestle with an age-old question: Where do good ideas come from? Steven Johnson wrote a New York Times best-selling book on the topic titled Where Good Ideas Come From: The Natural History of Innovation, and in a TED talk on innovation, he told the audience that he has been on a quest to answer two related questions: “What are the environments that lead to unusual levels of innovation?” and “What is the space of creativity?” Johnson challenges the notion that an idea is the product of a single momentary instance of innovation, that it is a flash of light or stroke of genius. Instead, he posits that at the most elemental level an idea is a network—like a team of diverse people coming together to solve a common problem.

What does this have to do with the legal profession? Michele DeStefano, a professor of law at the University of Miami School of Law, explores similar concepts of innovation and collaboration across disciplinary bounds in an examination of the U.S. legal profession in her article “Nonlawyers Influencing Lawyers: Too Many Cooks in the Kitchen or Stone Soup?” DeStefano’s central argument is that “the U.S. legal profession has created a closed environment that quarantines itself from not only the capital marketplace but from the professional services marketplace and therefore from potential growth and innovation.” In such an environment, “the failure to embrace open environments handicaps lawyers from being able to add value and effect change,” therein highlighting her point that “‘[t]he challenge’ is in developing ‘environments that foster these serendipitous connections’” and that “the current legal rules do not create an environment that fosters such connections.”

At the most elemental level, an idea is a network—like a team of diverse people coming together to solve a common problem.

As a result, DeStefano suggests it may be time to reexamine some of the profession’s rules and underlying assumptions. In the article, she says, “The Model Rules of Professional Conduct, the bar licensing requirements, the application of the work product doctrine and attorney-client privilege, and even the way law firms structure themselves consistently impede an open multi-disciplinary approach.” As many know, both Australia and the United Kingdom permit lawyers to share revenues with nonlawyers and develop alternative business structures in which lawyers and nonlawyers can form legal partnerships offering both legal and nonlegal services. In the United States, regulatory barriers continue to prevent such collaboration (see “Speaker’s Corner“).

In this context, the topic of lawyer and nonlawyer collaboration remains particularly relevant and pressing, given the recent reemergence of the Big Four (see “The Reemergence of the Big Four in Law”), as we consider how technology, disruptive innovation, and alternative business structures are reshaping the legal profession.