Technology is changing the way we work. But there are certain things only lawyers can do.
This week, I want to address the opposite of what I focused on last week, like a dark negative of the previous article.
Last week, I spoke about the disruption to the legal profession caused principally by technology. We know that as a result of modernisation - with commoditisation and globalisation thrown into the mix - the role of lawyers is shrinking. Other people have been preaching the same message. But this week, I want to consider what will survive more or less untouched.
This is the part overlooked by the prophets of doom who foretell the end of lawyers. (I am told that Professor Richard Susskind has taken to stressing the question mark at the end of his book title, The end of lawyers?, to cover himself as the years roll by. But futurology is a risky business, as I confess when giving my own tentative predictions below.)
It is common knowledge that the parts not affected by the great changes are those which do not pay well. Criminal law is a good example. There is no one out there offering to take the place of the solicitor called to the police station at 2am to assist a client who is drunk, injured or traumatised.
There are no IT programs to replace the interview with the emotionally disturbed client in a holding cell, no online provider offering to undertake this for free or at a discount, no lawyer in India offering to see the client in Bangalore for one-tenth of the price.
No one else (other than cheaper paralegals under the supervision of a solicitor) wants to do it, and it is difficult to imagine it being automated. The same is true of any work, criminal or civil, for disturbed or frail clients.
Others have pointed out that this is one more of the reasons why we should be concerned by cuts in legal aid, as the profitable parts of our work are cherry-picked by new systems and methods.
It is a principal reason why the government should be concerned by its own cuts, because there might soon be no one left - no consumer-focused competitor, no alternative business structure or other wunderkind of the modern marketplace - ready to take over such work if insufficient solicitors find it remunerative to scrape the bottom of the barrel for a living.
There are other areas of work which cannot be pre-programmed or otherwise commoditised. Court advocacy is obviously one. I wrote a few weeks ago about experience in Finland where such work had been open to anyone, but the government found it caused great inefficiency and is regulating it for the first time. Then there is human rights. Is there a program for telling early victims of phone hacking - i.e. before there was a flood of them and a procedure put in place - whether they have a case against the News of the World ?
Is there a program for telling victims of military bullying or torture whether they have a case against the Ministry of Defence? Such ground-breaking human rights cases - or indeed ground-breaking cases in any area of law - can only be undertaken by lawyers. In other words, hard cases and innovation in legal interpretation will always be the work of lawyers.
A picture of what the future lawyer will look like is being built up, but, before drawing conclusions, there is one more hole in the play of globalisation. This may not bring much comfort to us in the UK, but is true nevertheless: legal process outsourcing, which is causing havoc to many back office jobs in large law firms, is almost exclusively an English-language problem.
If you are a Hungarian lawyer, or indeed a German lawyer, there are not large numbers of Hungarian- or German-speaking lawyers in other parts of the world ready to undertake your discovery or drafting at cut-price.
It is a consequence of the British Empire that there are English-speaking lawyers in the developing world ready to undertake high-quality legal work at a fraction of the usual cost. The same might be true of the former citizens of other empires, such as those of France or Spain (though it is rarely mentioned). But for the rest of the world, outsourcing is not a problem. Therefore, it is principally the Anglo-saxon firms which are threatened.
The conclusion is this. There will be a reduced legal profession which looks remarkably like the continental legal profession of a couple of decades ago, but poorer. This is a profession without the big business activities of the large Anglo-saxon law firms, and shorn of the notarial activities which solicitors have traditionally undertaken.
These are the parts which technology, commoditisation and globalisation do not touch, and which existed before such forces began to play havoc with our lives. There will be other lawyers, of course, in the new structures – ABSs, online providers – but it is their numbers and role which is subject to the current turbulence and uncertainty.
So, something will be saved! (But their economic outlook does not look good at this stage.)
Jonathan Goldsmith is secretary general of 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