What is the future of legal services in the U.S.? How should the enormous unmet need for services — to the middle class and to the poor — be met? Judy Perry Martinez, the Chair of the ABA Commission on the Future of Legal Services, was in Cleveland last week, and discussed the Commission’s 100+ page report and some of its controversial recommendations. She spoke at the Cleveland Metropolitan Bar Association to members of its ethics committee and other bar leaders. Martinez’ talk was wide ranging.
- On-line service providers are here to stay: Entities like Avvo, Rocket Lawyer and LegalZoom now have a presence in some legal market segments, said Martinez, and “they are not going away.” Lawyers must acknowledge this force, and that “they are no doubt innovating in a way that consumers of justice are paying attention to.” Like attorney advertising, which was once derided but is now ubiquitous, on-line service delivery platforms are “now part of the ecosystem.” The challenge is to ensure that these and other technology-driven models meet the standards most critically important to the profession. The Commission report recommends that state courts adopt the ABA Model Regulatory Objectives for the Provision of Legal Services, so that if and when a court examines on-line or other providers (including lawyers), any regulation is guided by the stated objectives. These include such core principles as independence of legal judgment, protection of confidential and privileged information and accessible civil remedies for negligence and discipline for misconduct.
- The public needs more from us: The Commission’s report details a huge unmet need for legal services. In some jurisdictions, more than 80 percent of the civil legal needs of low-income people and the majority of middle-income people go unmet — even as new law graduates struggle to find work. “Our efforts have woefully failed” so far, Martinez said, to meet the goal of providing some form of effective assistance for the essential civil legal needs of all people otherwise unable to afford a lawyer — which is the Commission’s #1 recommendation.
- We’re trained to be innovation-averse: Our legal training itself makes lawyers resistant to change, and that threatens to leave us behind. We are trained to look at the past, and to avoid unnecessary risk. The traditional service delivery models that we accordingly embrace constrain innovation, and can limit access to justice. Yet, it is crucial to overcome these barriers. “If we don’t shape the future, others will,” said Martinez.
- Despite adverse comment from the rank-and-file, conversation about “ABS” continues: Permitting non-lawyer ownership stakes in law firms (aka “alternative business structure”) has generated much controversy; it is currently barred in every jurisdiction except the District of Columbia (although in the state of Washington, a very narrow form is encompassed under its Limited License Legal Technician program). In 2016, the ABA solicited comments on its issue paper on ABS for law firms, including non-lawyer ownership. Based on a lack of data showing that ABS would benefit the public, and being aware of opposition from some, the ABA recommended continued exploration. According to Martinez, the issue is continuing as a topic of discussion at bar association and court meetings, and those interested are watching developments in the UK, where ABS is growing. What should the burden of proof on the issue be, asked Martinez: that there is “no evidence of harm to the public,” or that there is “evidence of benefit to the public”?
What can be done on the local level? Martinez said that lawyer education aimed at helping lawyers and judges understand the benefits of applying technological innovations to the access-to-justice problem was front and center, and that every bar association should be incorporating a futures component into its long-range planning.
Bottom line: we lawyers had better get on board because like it or not, the future is here, and it holds opportunities for the profession and for increased access to justice.