ABA Summit: Growing Consensus on Need for Change, New Models and More Practitioners

Published for Thomson Reuters Legal Executive Institute on May 12, 2015

Last week I wrote about the proceedings of the ABA’s National Summit on Innovation in Legal Services. Today I will address the substance.

It is impossible, of course, to do justice to the robust discussion of the three-day Summit in a brief blog post. What follows are my sense of some of the most significant issues on which the participants at the Summit seemed to have a consensus.

Urgent Need for Change

Virtually every speaker at the Summit recognized the urgent need to improve the delivery of legal service in the United States. The need is particularly acute in the case of legal service for individuals, for which “access to justice” is the shorthand, but indeed which extends to all dimensions of law.

The statistics shared at the Summit show that the needs of the majority of Americans go unmet. In one survey, the U.S. ranked 65th of 99 countries in access to justice. The causes include the limited legal resources available to serve individuals, inadequate public understanding of legal issues and systems, and the imposing nature of the judicial system.

In both consumer and commercial settings, legal service is more expensive than it needs to be, quality is uneven, and client access to information about the qualifications and fees of lawyers is inadequate. These issues are exacerbated by a regulatory system that unduly limits the number of people who can participate in legal service, makes it difficult for firms to invest in innovation, and impedes the progress of new entrants into legal service.

A Moment of Opportunity

The outlook of the Summit participants was constructive. California Supreme Court Justice Mariano-Florentino Cuellar reflected that outlook in the opening session: “This is a moment of incredible opportunity.” Daunting as the challenges and perils are, solutions are at hand and the participants were pragmatically optimistic about the prospects of making progress.

Guiding Principles

A conceptual framework for evaluating legal service seemed to emerge from the Summit’s discussions. Legal author and speaker Richard Susskind articulated a standard that captured the sense of the Summit: Legal service should be “accessible, affordable, and intelligible.” Other comments suggested it should be measured by the outcomes it achieves—not the inputs that go into it—and the efficiency with which it is delivered. And while the objective of change should not be to protect lawyers’ jobs, the changes need to be ones that will make careers in legal service desirable so that we will continue to attract intelligent, empathetic, and effective people to legal service.

Specific Changes

In addition to the obvious needs to embrace technology and re-examine legal process design, the Summit discussed numerous concrete actions to promote innovation. A number of ideas appeared to have broad support. Here are three examples I thought were particularly important:

Redefine the Market

We should expand our operating concept of the market and profession of law, redefining it as “the delivery of legal service.” The backbone of legal service is and always will be “the practice of law,” a profession and role that requires a prescribed education, demonstration of proficiency, and a license. We should affirmatively recognize that there are important elements of legal service which are not necessarily the “practice of law” and can be done by other professionals and by technology, just as medicine recognizes roles for nurses and other licensed and unlicensed professionals.

Broadening the concept would facilitate a clearer understanding of the issues and would expedite reform. It would help ensure that the public has access to the quality of legal service it needs, without unduly impeding innovation. The recent Washington State approval of Limited License Legal Technicians illustrates the value of this broader concept.

Change the Business Model

The traditional business model for law practice limits the possibilities for legal service. Examples discussed at the Summit included: making it hard for small firms to service clients at reasonable fee levels while making an adequate income for the lawyers; making it hard for law firms to invest in technology and other innovations; and impeding systemic process design reforms in large law firms.

Summit participants discussed a number of options to improve the law practice model, ranging from greater use of shared platforms, increased permission for fee sharing, and authorizing outside investment in law firms.

While the Summit did not attempt to reach specific conclusions, I think it is fair to say that there was widespread recognition of the need for fundamental change in the law practice business model.

Welcome New Entrants

There was also widespread recognition of the importance of new entrants to legal service. A number of the Summit’s presentations and break-out discussions recognized the benefit that new businesses—including data analytics, legal research, legal process outsourcing, providing legal forms and other documents, and many more—are making. These new entrants push the progress to greater efficiency and reinforce the importance of maintain both a clear view of the needs of the marketplace and the conceptual framework of the entire legal service marketplace.