Our guiding principle will be not what is moral, but what can be automated.
The future of legal services is now discussed everywhere and often. It is curious that, after generations of lawyers have lived and died, it is only in recent years that we have paid it so much attention. There has always been a future; it is just that we never spoke about it.
My concern is that, by concentrating so much on the role of the profession, we are overlooking a different and more important development: the future definition of justice. The same factors crowding in on our professional future are also nudging the idea of justice into a different shape.
It is easy to list the items changing our profession. There is a ‘perfect storm’ of forces combining to blow like a hurricane through our working lives. Some of them have been brewing for a long time, such as the rise in consumerism and the end of deference in society. One of them has always been with us – unmet legal need. But it is the fourth element – the explosive growth in the use of IT – which, combining with the other three (but particularly with unmet legal need) is threatening to change our profession out of recognition.
The changes are now familiar:
- the democratisation of knowledge through the internet, leading, among other things, to the unbundling of services;
- the possibility of lawyers and courts serving clients remotely and the growth in virtual offices;
- outsourcing, not only of backoffice jobs, but of legal advice itself;
- the development of electronic platforms providing legal advice, together with data about suitable lawyers and their rating, and, most radically, online dispute resolution;
- automated systems such as document assembly, and, most dangerously for our future, the use of artificial intelligence.
Alongside these, another familiar demon has risen – the growth in unregulated providers.
To state the obvious, none of the above developments has been thought up by lawyers, even if some lawyers have adopted them belatedly, and the giant providers are not owned by lawyers. But, regardless of changes brought about by IT, we see unregulated providers in even unmechanised parts of the justice system, for instance McKenzie friends.
Bars across Europe and in the US face impossible decisions in the face of this storm. What to do? Fight the hurricane, as some do in the courts, but not always with success? Join the hurricane, by adopting new methods, as some bars do experimentally, by setting up their own platforms or joining forces with existing ones? Or regulate the storm, as is also occurring in a piecemeal fashion in Europe and the US?
Personally, I favour the third answer – bring the new disrupters into regulation.
But behind the tangible changes these forces are making to our profession, there is another, more silent change taking place in the background. Suggestions of it are already creeping into public announcements. Take two judicial speeches at the bar’s recent conference.
Lord Justice Briggs spoke about the online court. He wants to make the law more accessible and to empower litigants, requiring a big increase in public legal education. He considers the simplification of the law a priority.
Meanwhile, Sir Ernest Ryder, senior president of tribunals, mentioned that the impact of austerity had highlighted the justice system’s limitations. He asked the audience to concentrate on the accessibility, efficiency and intelligibility of the justice system.
We are moving towards a new definition of justice. We have all grown up with an ideal of pure justice. The question has been: what is the best justice, regardless of whether it is available to all? Our laws have been fashioned in this way and our legal education and working lives have been shaped by it. Its consequence has been that many people went without, but we still carried on believing in the ideal.
But now many more people can take advantage of justice through cheap automation. We are being nudged towards a system where justice is judged not by its purity but by its availability (which is an undeniably acceptable alternative criterion). The future guiding principle will not be what is the most just from an academically moral point of view, but what is the most just that can be automated in forms and algorithms that citizens can follow and use.
Doubtless, governments will one day use this as their principal policy objective, in a move from the ideal to the utilitarian, producing rougher outcomes than our current system – not always as ‘purely just’, but more widespread.
This is not good news for our profession, but I find it a completely feasible alternative vision. We should get ready for it.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs