American Bar Association / ABA, Technology

This Week In Legal Tech: ABA Future Panel Calls For Broad Changes In Legal Services

Significant change is not just an option, but a necessity, and it will require innovative delivery models and technologies.

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aba-logoAfter two years of studying the delivery of legal services in the United States, the American Bar Association’s Commission on the Future of Legal Services delivered its final report Saturday, finding that 80 percent of poor and moderate-income people do not receive the legal help they need and recommending broad measures for improving how legal services are delivered and accessed.

The Report on the Future of Legal Services in the United States provides a frank, thorough and frequently bleak assessment of the state of legal services and the legal profession’s complicity in inhibiting innovation, while also heralding the promise of emerging delivery models and technologies to bring about change.

It urges the legal profession to commit to the goal of 100 percent access to effective assistance for essential civil legal needs and makes a number of recommendations that would go a long way towards achieving that goal, including providing civil legal aid as a matter of right when basic human needs are at stake and making wider use of innovative legal technologies.

At the same time, however, the commission hedges its recommendations on some of the key issues facing the profession, particularly nonlawyer ownership of law firms, nonlawyers giving legal advice, and the regulation of companies such as LegalZoom and Rocket Lawyer that use technology to deliver legal services.

On the ownership issue, the commission finds that “the traditional law practice business model constrains innovations” that would enhance the delivery of legal services and that there are “providers other than lawyers who are delivering cost-effective and competent legal help.” Yet it makes no recommendations that would loosen this constraint. Instead, it urges courts to adopt the ABA Model Regulatory Objectives for the Provision of Legal Services, a controversial resolution adopted earlier this year that explicitly took a stand against nonlawyer ownership.

On the use of nonlawyers – which the report refers to as legal services providers (LSPs) – to help address the justice gap, the commission documents successful use of LSPs in a number of jurisdictions and analogizes them to the medical profession’s use of nurse practitioners to competently fill gaps and lower costs in the delivery of services.

Yet rather than explicitly endorse wider use of LSPs, the commission passes the buck, calling on courts to “examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially-authorized-and-regulated legal services providers.”

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With regard to companies that use technology to deliver legal services, the commission finds that “in many instances, these innovative LSP entities have positively contributed to the accessibility of legal services.” Here again, however, the commission takes the route of recommending further study, calling on states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.”

The commission – which was chaired by Judy Perry Martinez, vice president and chief compliance officer at Northrop Grumman Corporation – divides its report into two main sections, the first setting out its findings and the second its recommendations. Its findings should be required reading for every legal professional for the picture they paint of the failures in the legal system. Among them:

  • Most people living in poverty and the majority of moderate-income people do not receive the legal help they need.
  • Funding for legal services is woefully inadequate and pro bono alone cannot fill the gap.
  • People at all income levels often do not obtain effective legal assistance either because of insufficient financial resources or lack of knowledge about legal issues.
  • The vast number of underrepresented litigants adversely impacts all litigants, even those with lawyers.

Part of the blame for this state of affairs lies squarely on the legal profession, the commission says, finding that the profession’s resistance to change hinders innovations. “The legal profession continues to resist change, not only to the public’s detriment but also its own.”

So what is to be done to improve the delivery of legal services? The commission offers a dozen recommendations addressed to courts, bar associations, law schools, legislators, and the legal profession as a whole.

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Its first and overarching recommendation is that the legal profession support the aspirational goal of 100 percent access to effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer. To that end, the report outlines a set of principles that it recommends all jurisdictions aspire to follow.

A key one of these principles is what is often referred to a civil Gideon – that legal aid should be provided as a matter of right at public expense to low-income persons in cases where basic human needs are at stake.

Other recommendations in the report:

  • Courts should consider regulatory innovations in the area of legal services delivery, including in the areas of alternative LSPs and alternative business structures.
  • All members of the legal profession should keep abreast of relevant technologies.
  • Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.
  • Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.
  • The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.
  • The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.
  • The criminal justice system should be reformed.
  • Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services, such as legal aid and pro bono.
  • Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.
  • The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.

One recommendation has already been implemented. The report calls on the ABA to establish a Center for Innovation. According to the ABA Journal, the ABA Board of Governors has given that the green light and named Andrew M. Perlman, dean of Suffolk University Law School in Boston and vice-chair of the commission, to chair its governing council.

My verdict on the commission’s report is mixed. No one can deny that the future of legal services hinges on how we, as a profession, answer critical questions about evolving business models, evolving service-delivery models, and emerging technologies. Yet on these questions, the commission falls short of taking bold and decisive stands, instead recommending further study and consideration.

At the same time, I recognize that this was a consensus document – as the report itself says. In reading it, I found myself comparing the findings – where it seems no holds were barred – to the recommendations – where the committee seems more cautious.

The findings inform the recommendations, and even where the recommendations stop short of being bold, the report as a whole makes very clear that significant change is not just an option, but a necessity, and that change will require innovative delivery models and innovative technologies.

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

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