The American Bar Association’s Commission on the Future of Legal Services has issued its opening salvo.
When the ABA President announced its establishment, my understanding was that he wanted it to look at how innovation in technology could be harnessed for the benefit of the legal profession and the public.
He repeated the word ‘innovation’ so many times that I had assumed that he wanted to investigate how Google, Facebook, Twitter, e-Bay, Amazon, Apple and the rest, which have disrupted so many things, are now disrupting the law. How can we husband them and their thinking for the good of legal services?
There are big issues to consider around disruptive technology. Should the bars be enabling an Uber-like app to show where the nearest lawyer is situated who can answer your particular problem, and for how much? Should governments recognise that on-line dispute resolution, such as that offered by e-Bay, is accessible to far more people than ordinary courts because of lower costs, and so adopt a similar virtual model themselves, maybe run by private firms subject to regulation?
Should the bars be running (or regulating) lawyer rating sites, to avoid the excesses of privately run sites? Where does the border lie between what should be unregulated in on-line services (document assembly for a contract, say) and what should be regulated (a criminal defence)? These are questions I have made up from the top of my head, but you get the drift.
I was therefore disappointed to read the first issues paper of the ABA Commission, published earlier this month. In my view, it suffered from three sins for a preliminary exercise in futurology. First, though talking about the future, which should always be challenging and exciting, it was dull. I had to push myself to read to the end. Second, it divided the future into categories known from the past, and into solutions already known about, which will discourage revolutionary thinking. It should have assumed that the future will be utterly different, in order to stimulate the rest of us into imagining how different. And, third, it did not give examples of the kind of innovation which might be over the horizon, which would have put us into the appropriate mood to help it – you know, we will all have personal rocket boosters which will enable us to colonise Mars, that sort of thing.
So what did it do? It told us that it had divided itself into six working groups: Data on Legal Services Delivery; Dispute Resolution; Preventive Law, Transactions, and Other Law-Related Counseling; Access Solutions for the Underserved; Regulatory Opportunities; and Blue Sky. It asked many questions like ‘How can the legal profession better serve clients of all types, including individuals, governments, corporations, and institutions?’ and ‘How can we better facilitate access to civil and criminal legal services for underserved communities?’ Stay awake! Stay awake! And – here comes the fourth sin – it resuscitated the old question of alternative business structures, as if that was some kind of trendy innovation, even though it has been exhaustively dealt with, and rejected, by the ABA a couple of years ago through its previous Commission on Ethics 20/20. (This has been presumably brought back on the well-known thesis from European politics that if you get the wrong answer to a question, keep asking until the target audience answers it correctly.)
The Commission is still the only show in town. I know of no current equivalent exercise by another bar to confront the future. (The Canadian Bar Association’s own recent effort in this direction ended up by saying effectively that ABSs might be the future). So it deserves our support. I just wish it would do something radical. OK, free of charge, I will throw out some ideas. (I should add that everything in this piece represents my own views, and not those of the organisation for which I work.)
ABA Commission members, I know that you need to map the current state of affairs, and restrict yourself to the possible. But you could at the same time sponsor some of the start-up kids in Silicon Valley to dream up software that lawyers can use to upset the competition – or respond to unmet legal need - while staying on the right side of ethics. You could commission research from the Googles and Amazons (not from legal academics who study what already exists) as to what the future of technology-driven legal services would look like if it was in their hands – the legal equivalent of drones and Google glasses - and still be subject to our core values. What I mean is: you should not follow what is already on the market and being used, since the future is likely to be different.
If you have ideas yourself, please submit them to the Commission by Wednesday 10 December to IPcomments@americanbar.org. We should act as if this initiative will lead us to the promised land.