For Lawyers, the Future is Now

Artificial intelligence, machine learning, mobile interfaces, and online dispute resolution are all innovations that are changing consumer relationships to legal services in the United States and across the world. There are those who don't like such change. Nevertheless, the time is right to assess the state of the profession, consider ways that technology can be harnessed to improve the availability and accessibility of legal services, and move the profession fully into the 21st century. A recent report by the American Bar Association (ABA) helps to begin this conversation.

Several years ago, the ABA created its Commission on the Future of Legal Services to, in the words of the Commission, examine "various reasons why meaningful access to legal services remains out of reach for too many Americans." Truth is, roughly eighty percent of low-income Americans and a majority of middle-income Americans face their legal problems without a lawyer. This occurs for several reasons. Consumers may not know they have a legal problem that a lawyer can help them resolve. Often they cannot afford an attorney or they would not know how to access even if they had the ability to pay. Or they prefer to try to resolve their disputes in informal ways, without the help of a lawyer or the legal system. All of these reasons create an ironic paradox: new lawyers graduating from law schools face a tight legal market at a time when millions of Americans face their legal problems without a lawyer.

At the same time that new lawyers are having a hard time finding jobs upon graduation from law school, established lawyers are facing threats to their way of doing business by technology-enabled companies and services that are stepping in where traditional lawyers might have gone before, helping small businesses with simple legal problems and assisting families with estate planning needs. Companies like LegalZoom, aided by technology, are making legal advice a reality for millions. Just as with ride hailing services like Uber, these new entrants into the legal services market are using new technologies to displace incumbent providers, threatening their business model while making services easier to obtain and often more affordable.

The ABA's new report attempts to grapple with some of these issues and sets forth recommendations for how the legal profession can approach the challenges and threats it faces to expand access to justice to serve all Americans, while ensuring that technology will preserve the important values the legal profession is supposed to uphold, including consumer protection in the provision of legal services and the rule of law. Many of its recommendations deserve praise, like supporting the goal of "providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer," or that individuals should have "regular legal checkups." These are worthy goals to ensure that access to justice and legal assistance is a reality for all Americans. (Full disclosure: while my research was cited in the report, I had no hand whatsoever in its drafting.)

Some believe the ABA's Commission has come up short in its somewhat limited efforts to address the need for regulatory reform to permit new models of technology-enabled legal services to co-exist with traditional legal services providers. In a recent interview, Eddie Hartman, one of LegalZoom's founders, complained not just that the Commission failed to deal with the regulatory reforms that are needed to accommodate meaningful change in the delivery of legal services, but also that the committee, though made up of leaders in the legal field generally, did not include the voices of the hundreds of startups that are trying to deliver on this change. (Read a response to these critiques here.)

Perhaps the absence of representatives from the legal startup community on the Commission (although the Commission took testimony from such representatives in its fact finding) is a reflection of the fact that the ABA has been historically resistant to change. And one of the barriers to innovation in the legal profession is the relatively conservative system for regulating lawyers, which has, at its heart, a 50-state patchwork of guidelines, judicial opinions, and court rules that make up the regulatory infrastructure governing lawyer conduct and misconduct. These complex regulatory systems have historically been slow to respond to change and startup companies trying to deliver affordable and accessible services complain that such systems are stifling innovation, getting in the way of creative efforts to deliver services to more people at a lower price.

I choose to look at the effort of the ABA Commission in a positive light. Its recommendations embrace the idea that the legal profession is changing. It recognizes that innovations in the delivery of legal services deserve our attention. They warrant a careful look at the extent to which they are offering services that meet the legal needs of the community. In the eyes of the Commission, a review of the many innovations in the manner in which legal services are being delivered is worthwhile to ensure consumers are having their legal needs met in a competent, effective way.

While some may feel further study about the value of different types of legal services, through different models, is unnecessary as the change that would be studied is already upon us and any delay to engage in such study would only hamper further innovation. The Commission's work certainly recognizes that such change is here. Instead of fighting it, as many within the profession might try, this body at least has attempted to set forth what the questions should be as we lay down rules of the road moving forward. In this effort, the Commission has helped to identify the important ideas that should not just animate innovation in the legal profession as such innovations continues to emerge but also frame any review of that innovation. Perhaps the most important of these ideas is to ensure effective access to justice to anyone who wants it, regardless of his or her ability to pay, a concept the Commission fully embraces.