One point aside requires some clarification: the foregoing questions are muddled in part due to a conflict over titles. Attorneys starting out, or JDs taking the bar, are typically hired as legal clerks, a title that is distinct from the common notion of what is a paralegal. Often, lawyers start their careers as clerks for law offices or the courts. Working as a clerk after one has practiced, however, is not the norm.
The distinction between what a paralegal does compared to a clerk is somewhat blurred, although the titles do carry some importance. And the legal community has taken some effort in delineating the two roles.
On the one hand, hiring licensed JDs as paralegals is argued by some to be problematic because of the lack of commitment by attorneys who may be buying their time until they find full-time practice work. As a corollary to this, some employers have concerns that an attorney who spends years of study and substantial resources in obtaining a JD and license to practice will not be content enough to stay in a paralegal position. On the other hand, attorneys who are applying as a paralegal raise possible red flags, begging the question as to those negative factors stated above. In addition, an employer may likewise wonder why the attorney is looking to take a "step back" or is unable to find work using his or her license. Needless to say, the applicant will appear awkward compared to the others who are not attorneys or JDs.
So, what can attorneys do when facing an extremely dire job market? Moreover, transferring to another jurisdiction where there is more work has its hurdles as well. This is especially the case for those who either do not have the requisite number of legal practice years, which are on average 5 -7 for admission on motion, or those who cannot easily relocate due to being rooted in their area. Clerk positions seem like a good option, but when investigating the job prospects they are fairly difficult to land when top graduates are the "first round picks."
With the estimated 28 percent job growth for paralegals from 2008 - 2018 compared to 13 percent during the same period for attorneys, the idea of working as a paralegal sounds enticing. Regardless, this to many has a poor ring to it because earning a JD is by design a prerequisite for working as an attorney. According to the statistics, however, the legal job market is clearly demanding more paraprofessionals than licensed ones. The protracted recession is also creating a scenario where overhead costs can be lowered by hiring less attorneys and paralegals instead. Changes in the industry as well as new technologies indicate a trend toward streamlining and packaging legal work in ways that are unprecedented, which is invariably resulting in more outsourcing than ever before. Much of this can be attributed to the Internet and IT infrastructure that is now incomparable to just 15 years ago.
One scholar, notably author Richard Susskind, in his debated work The End of Lawyers is arguing that said trends may mean that attorneys will progressively fade from prominence in favor of more economical and practical solutions to legal work. The primary theme of his book is how technology is the driving force changing our profession. In support of his thesis Susskind predicts and discusses the following legal service trends, some of which are happening now, continuing into the future:
His analysis postulates how these will improve cost-benefits for the industry and result in advantages such as greater efficiency. These are the upshot.
In sum, Susskind summarizes his central thesis as, in his words:
If I may give away the ending, [I] will point to a future in which conventional legal advisers will be much less prominent in society than today and, in some walks of life, will have no visibility at all. This, I believe, is where we will be taken by two forces: by a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service.
His message is that lawyers in the 21st century will need to adapt to the changes technology produces in order maintain their survival in the legal workplace. This means changing working practices and "extending [the] range of services," systematizing and sourcing work through embracing various technologies and effectively using them.
Depending on the point of reference, one observable problem with any large organization or long established trade, or profession, is that even when change is accepted, and is necessary, action is painfully slow. The legal industry is no exception. Empirically, reactive change is more often seen than proactive change. Therefore firms that have the largest market share of legal work are the least likely to lead in embracing movements considered unconventional whether it is a divergent rebalancing of the internal workforce and/or implementation of the newest technology. But the same may not be true for smaller practices and some mid-sized ones which employ a great number of private attorneys. In essence, I agree with Susskind. Yet, I wish to add a few other considerations.
Susskind's vision is compatible with allocating human resources in a manner that allows attorneys to compete for the same positions that can be filled by paralegals and it is worth exploration. The inherent barrier to this, unfortunately, is much more of an attitudinal one as opposed to a practical one. However, the changing paradigm of the legal industry may find some congruence in placing attorneys into paralegal spots whereas the "square peg may be able to fit into the round hole." In other words, as more and more attorneys flood the job market with less and less open positions their skills can be purchased as "well priced commodities" having substantial value. The work that needs to be done regardless of who performs it tends to be the same. Oversight of the work coupled with the demands for quality and competency are otherwise more variable.
But where technology can streamline certain processes, such as is the case with the bulk of legal work, i.e. research, writing, and document preparation, the commission of attorneys as decision-makers charged with oversight is attenuated. Although this may be in motion at the present to an uncertain extent, the full aftermath is not yet fully accepted nor is it being meaningfully realized by the legal community. And law schools are particularly reticent to the changes going on because they are naturally constrained to promote the need for more attorneys in order to sustain themselves. Aspiring attorneys go to law school usually with the goal of practicing law. They are not edified, though, with a career development plan that accounts for long-term employment in the practice of law. Therefore we cannot expect the number of new attorney entrants to suddenly drop despite a likely decrease in demand for their services. Ironically, if one were to poll law school graduates and attorneys two important results become apparent: (1) attorney dissatisfaction rates are greater than fifty percent, and (2) attorneys are seeking to transition into legal work outside of the licensed practice of law as well as into non-legal work altogether.
What this means, at least for now, is that there will be a great number of attorneys in excess of the number of jobs available or obtainable. Some will find work where their skills are transferable, for example in teaching or in business. Yet many others will be in "job-limbo." Accordingly, employers in need of legal labor can capitalize on this surplus. One way is through offering more contract work. Another can be done, and with some accountability, through the creation of new positions and titles or specialized roles that do not necessarily fit evenly within the common work-detail traditionally performed by the modern paralegal. Such would be consistent with productive evolution and modernization; effective adaptation invariably means change that is well fit to the circumstances.
Attorneys can also adapt in kind. And though it may entail some risk, marketing one's services to compete with paralegal jobs is possible. The big question is, how? I would imagine inventive resume and cover letter tactics may be too revolutionary or uncomfortable for some; and being met with resistance by employers can cause some apprehension in the process. However, acceptance of the possible negatives is necessary if an attorney truly desires legal work outside of practicing law. Many retired attorneys in Florida, for instance, have obtained non-practice legal work. Perhaps they used their wisdom and experience to their advantage. If seeking to do the same whether retired or not, the honest approach is best; explain why you are desiring the non-attorney position. Additionally, network within the right circles, or go through various organizations like the paralegal section of the local bar association, the NFPA or NALA. Talk to attorneys you know and trust. There are no written rules against lawyers working as paralegals, just the stubborn unwritten ones that some are open to ignoring. Consequently, history has shown that being unconventional and revolutionary can later have its rewards.