Regulate the unregulated and ride the technological wave – or clients will suffer.
I have been at a seminar on the future of legal services, held in Poland.
Polish people are more afraid than I expected of Vladimir Putin’s intentions, including possible invasion. However, I was not there to discuss geopolitics, but the legal profession. In that respect, I learned that technological changes which began in the US are spreading fast across borders, including to countries whose language and legal system do not themselves cross borders or create international markets.
A speaker drew our attention to a number of Polish websites, first for automated document assembly and then for lawyer rating (www.znanyprawnik.eu; www.ocen-prawnika.pl; www.skutecznyadwokat24.pl). Many legal professions now face a similar future.
The discussions raised two big questions, which are common to most bars. What do we do with unregulated providers? And how do bars deal with disruptive technology?
Many of us look up our symptoms online before going to see a doctor. And I assume as many clients download forms and perform other parts of a legal matter with online assistance before going to see a lawyer, asking the lawyer to do only the difficult bits. We know that companies like LegalZoom and Rocket Lawyer offer online alternatives to visiting a bricks-and-mortar firm (although you may also be able to consult such a firm through them).
There are even unregulated court representatives now, through commercial offerings of McKenzie friends. So unregulated providers are every day either taking market share away from lawyers or taking over a latent market not serviced by lawyers for a number of reasons. I commend the Law Society for tackling the issue head on with its recently updated guidance on unbundling of services.
The question, though, is what to do with such unregulated providers, who are not required to guarantee either standards or remedies for failure. Some at the Polish seminar wanted to fight the unregulated every step of the way: to use their tools and offer their services, but as lawyers. I understand that, and would be happy if we succeeded, but fear that we lawyers do not have the resources or expertise to win the technological and marketing battles.
I offer a different, personal solution. What about bringing the unregulated into regulation, to ensure a structured market for consumers? Now I understand that the unregulated may not wish to become qualified lawyers, and I am not suggesting that they should do so. But I suspect that the largest and most respectable providers would welcome a discussion about being brought into the fold (instead of having to fight costly battles - as they must in the US, for instance - over whether they are practising law or not).
What if the professional bodies regulated not only lawyers but also LegalZoom and Rocket Lawyer, the providers of McKenzie friends and, even, of lawyer-rating sites? This solution is offered not to cripple the opposition (whatever cynics may say), but to ensure that the consumers of legal services have equivalent protection in the public interest, through codes of ethics, disciplinary sanctions and proper training of providers.
This is a complex question, without easy answers. It might require a different level and scope of regulation for the currently unregulated to that imposed on solicitors. It would require (in our jurisdiction) the Legal Services Board to stir itself from its Blairite spell, which has paralysed it for eight years, and - instead of wagging its finger with pantomime relish at the professional bodies - begin to consider how the public interest is best served, in the light of a growing number of unregulated providers, by having the professional bodies regulate the unregulated.
The second question is whether the bars and law societies are approaching the new technological challenges with the correct attitude. Rather than throwing up our hands in despair at each new development - ‘Oh horror, lawyer-rating sites, we must fight them! And don’t even think of an Uber-style app for lawyers!’ - the bars could appoint a disruptive technology officer, whose role would be to monitor what is happening in the tech sector, and immediately think of how it can be adapted to make it suitable for a bar which regulates lawyers.
Even better, the officer could be responsible for liaison with the tech industry, to ask their help in developing new ways for access to justice, so that those who do not use lawyers will do so through technology. That way we might not be retreating with our backs to the wall, protecting an ever-shrinking regulated market. The bars are the one body in the legal sector with the resources and clout to introduce changes which individual lawyers and law firms cannot.
In my view, we cannot go on as we are. Otherwise, we will be the masters of less and less, to the detriment of consumers. There must be compromises, and we must seize the future. Regulate the unregulated; ride the technological wave.
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