Response To The Obstacles To Innovation In The Law

I was excited to see Bob Ambrogi’s invitation to respond to his ideas for removing the barriers to innovation here. I do believe that it’s more fundamental than the obstacles to innovation; many in the law just simply do not wish to change at all, let alone innovate. Lawyers who make enough money wish to retire in place (RIP). That expression comes from a lawyer that I know in Phoenix who described the long-term executive (or attorney) who just does not want to do anything different and work ‘as is’ until retirement.

I thought it would be fun to respond to Bob’s article here and invite others to also send him ideas and comments. Below is Bob’s ask and the bullet points are from his original article and my comments are in italics.

From Bob: What other obstacles do you see? What needs to change for the legal profession to better deliver services to all who need them? Let me know your thoughts.

Regulatory

  • Overly restrictive and burdensome advertising rules inhibit lawyers from reaching the consumers who need their help and inhibit consumers from obtaining access to information about legal services.

Disagree — it’s not about the advertising — we do not need more lawyer advertising, we need more consumer education and lawyers need to be accessible and responsive. This is not as important as the other regulatory issues below.

  • Protectionist prohibitions against the unauthorized practice of law and non-lawyer legal assistance.

Agree 110% — it’s more than prohibitions, protectionism is woven into the fabric of the ABA and bar associations — look at the placement (or lack) of clients in the following mission statements:

ABA – The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law.

FL – The Florida Bar’s core functions are to: Regulate the practice of law in Florida; ensure the highest standards of legal professionalism in Florida; and protect the public by prosecuting unethical attorneys and preventing the unlicensed practice of law.

WA – The mission of the Washington State Bar Association is to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.

In addition, consumer protection is a thinly veiled disguise for protecting lawyers. Contrast the above with the American Medical Association (AMA) mission statement: Our mission is to promote the art and science of medicine and the betterment of public health. Find out how the AMA is working to enhance the delivery of care and enable physicians and health teams to partner with patients to achieve better health.

  • Restrictions on non-lawyer ownership of law firms that inhibit innovations in legal services delivery.

Sort of Agree — I do not think that innovation is stopped because of the ownership but I do believe investment is stymied, which in turn could be used for change projects and technology purchases. Firms can always hire a consultant or employee to help innovate, they cannot make them an owner or take on venture capital.

I just do not understand the rationale for excluding non-lawyers from ownership — we are really not that unique, not much different from doctors or engineers. The stakes are higher for the latter — doctors can kill people one at a time; engineers by the hundreds; and lawyers, not really.

  • Restrictions on unbundling legal services.

Agree 100% — these restrictions have no business basis and simply thwart access to justice.

  • Restrictions on fee-splitting that block lawyers’ participation in referral services.

Agree 100% — this also makes teamwork on projects with lawyer and non-lawyers unnecessarily complicated because lawyers must bill separately.

  • Restrictions on multi-jurisdictional practice inhibit clients from hiring the best-qualified lawyers for their matters.

Agree — but again this is usually a corporate issue and not as directly related to access to justice — therefore not as pressing as others.

My Proposed Additions to Regulatory

  • Attempts to over-regulate document preparers and legal technicians are slowing down the expansion of these programs. Multi-year programs with high requirements are not comparable to lawyer qualifications and seem to be another form of protectionism.
  • Group or Prepaid Legal Plans — ensure that these continue to be supported as an affordable means for citizens to access justice, that also provide work for attorneys, paralegals, and legal technicians.
  • Allow Online Dispute Resolution as an alternative to court — look at the models in other countries, such as Canada.

Socio-economic

  • Many lawyers remain afraid — literally — of technology and so avoid it.
  • Lawyers lack competence in technology.
  • Lawyers see innovation as a threat to their business models and livelihoods.
  • The law firm business model — especially hourly billing — promotes inefficiency and is threatened by innovation.
  • Courts are stuck in a vicious cycle of underfunding and overwork that inhibits innovation.
  • Courts adhere to outmoded models of dispensing “justice” that are inherently inefficient and unsuited to the modern world.
  • Investment in legal technology is concentrated on products for large firms and corporate legal departments and not on ones that can enhance legal services for low- and moderate-income people.
  • Law schools fail to prepare law students to be innovative and entrepreneurial.
  • Most lawyers stubbornly believe that only they can effectively deliver legal services and that services delivered by anyone else or by any other means are inferior.
  • There is a gaping lack of evidence-based research into what works and what doesn’t in the delivery of legal services.
  • Lawyers who wish to innovate lack access to resources and support systems that would enable them to do so.

I understand why all of the above are on the list except I do not believe it’s true that the products are only targeted to big law or corporate departments. There are many for-profit and not-for-profit companies with products for the rest of the market. Group or prepaid legal plans have invested millions in technology. For example, LegalShield has a mobile app that connects its members directly to law firms plus answers questions from anyone, for free on their starter version. On the LegalShield site, they have a free chat bot and it’s all for millions of moderate-means Americans.

Frankly, I do not see why we should coddle attorneys who refuse to keep up with innovation or who appear to be so arrogant that they believe only lawyers can provide legal solutions. There is no logical reason that the law should be allowed to ignore technology — competence is required by most states but, more importantly, clients demand it. Clients have other options besides hiring an attorney and if the lawyer cannot keep up, only they are to blame. It’s like if doctors refused to allow improvements to surgery or patient care!

And as for a lack of research — what does that matter? We do not need another round of reports on why lawyers should or should not implement technology. I find it hard to believe that lawyers lack access to resources and support systems, given the hundreds of articles and videos plus conferences, workshops, and training that is available, a lot of it free. Nope, the entire socio-economic list, except for the law school point, seems to boil down to an aversion to change or innovation.

And for those who would like to reach out and tell me that I do not know what I am talking about because I do not practice law, that is no longer true! Plus, I firmly believe that the law is a business and therefore experienced executives can help pull the legal industry out of the last century in terms of change and innovation. Go get ‘em Bob!  #onwards.

Mary E. Juetten J.D. lives on the West Coast and is both an American and Canadian professional accountant. Mary is passionate about metrics that matter and access to justice. She founded Traklight and Evolve Law and consults as an Access Advocate for LegalShield. She is Of Counsel with Nimbus Legal email at mary@nimbuslegal.co or on Twitter: @maryjuetten.