Comprehensive study of the future practice of law underway
By Mark D. Killian
We’re not sure where we are going, but we are on our way.
Sounds like a punch line, but it was a recurring sentiment expressed by many of the 68-member Vision 2016 commission meeting together for the first time in Tampa in September to begin a three-year comprehensive study of the future practice of law.
Bar President Eugene Pettis said the legal profession is going through evolutionary changes, and it’s the commission’s job to identify the challenges that lie ahead and set out a framework for meeting them.
“We are getting ready to partake in what I think is one of the most important undertakings that our profession has faced in a long time,” Pettis said. “Every one of us has felt the winds of change. What is the leadership going to do about the challenges the profession is facing?
“We can’t miss the future.”
To meet those challenges, Pettis has appointed Bar leaders to focus on four broad areas that will greatly impact how lawyers practice in the decades to come. President-elect Greg Coleman will chair the technology subcommittee; Board of Governors member Ray Abadin will study the future of legal education; BoG member Lanse Scriven will chair the Bar admissions subcommittee; and former BoG member Adele Stone will lead the review of the delivery of pro bono/legal services. BoG member Jay Cohen will serve as the commission’s administrator and former ABA President Martha Barnett will serve as special counsel.
“It is time that we looked to the future and participate as architects of solutions to the challenges that are inevitable,” Pettis said. “That is leadership, and that is the only way we can ensure that the legal profession will maintain its core principles of providing public service, protecting rights, promoting professionalism, and pursuing justice.”
To do nothing “is not a smart option,” he said.
“I hope as we go through this process we will find some answers that you never even considered,” Pettis said. “That’s what this is designed to do.”
To set the stage for the commission’s work, Gerry Riskin, a Canadian lawyer, author, and management consultant who works all over the world, ran through a litany of the changes now on the legal landscape, including:
* Full-time law-related employment rates for law students nine months after graduation are about 55 percent and have dropped five straight years.
* The U.S. Bureau of Labor Statistics forecasts 28,000 new law graduate jobs opening each year for the next 10 years; law schools are on pace to graduate 44,000 lawyers per year in that same time.
* Firms now prefer to focus recruitment on experienced lateral partners with books of business; nobody wants unskilled new attorneys.
* Inter-jurisdictional mobility of lawyers is growing worldwide; reciprocity will soon become standard procedure.
* Bars and regulators will be obligated to re-examine standards for Bar admissions; a unified national test may soon emerge.
* Access to lawyers’ services is increasingly available only to the rich, the corporate or industrial, the very poor, or the criminally charged; half to two-thirds of middle-income Americans’ legal needs go unaddressed.
For the first time, Riskin said, lawyers have serious competition from nonlawyers and should no longer count on reflexive regulatory protection. In Australia and England, he said, nonlawyers can own firms and provide legal services.
In that same vein, consumers are increasingly presented with nonlawyer options to meet their legal needs, with the advent of richly funded options such as LegalZoom and RocketLawyers. In the future, Riskin said, lawyers and nonlawyers will compete side-by-side in the legal services market, with a narrow band of “exclusive” services reserved for lawyers and the rest open to anyone. As such, lawyers will almost certainly not be the exclusive regulators for the legal services, he said, and attempts to maintain that role in a multi-player market may cost lawyers their independent, self-regulatory status.
Many lawyers, Riskin said, also underutilize or misuse technology and the emergence of “disruptive” technologies are poised to replicate lawyers’ functions and displace attorneys from traditional roles. Technology, through the Internet, has also lowered barriers to accessing legal information, spreading legal knowledge widely, and helping shift the power balance between lawyers and clients.
Disruptive technology also poses a direct challenge by threatening to minimize or bypass lawyers and deliver legal services directly to clients, he said. Some of the early instances of disruptive technology include automated contract drafting, expert applications that can answer legal and regulatory questions, and online dispute resolution that can eliminate legal conflicts in minutes, he said.
Also on the horizon is the emergence of what Riskin calls “Big Data,” that will open the possibility of predictive algorithms that can estimate the likelihood of litigation success before a single document is filed and e-discovery programs, such as predictive coding, which are poised to take lucrative electronic discovery work away from lawyers.
In the future, Riskin foresees a day when the ability to write code will become part of standard lawyer training, and failure to be tech-adept will be considered tantamount to professional negligence.
To be successful in the future, Riskin said, lawyers will need to adapt by “fighting with the machine, not against it,” by adopting and co-opting automated processes to improve their own productivity and efficiency, thus freeing themselves to spend more time on higher-value work and client relationships.
Pettis told the group the commission has the opportunity to try to influence the practice of law moving forward.
“If we don’t step up and address some of these critical issues head on, somebody else is going to address them, and they may not be in the best interest of the practice of law,” Pettis said.
The four subcommittees then met to begin the task of identifying the challenges the profession will face in the future. Here is what they found:
Coleman said the commission must find a way for the judicial branch and the Bar to timely adapt and react to technological advances.
“We as a group are too slow,” Coleman said. “We are not even close to where we need to be.”
That study will include examining the structure of The Florida Bar and its rulemaking and enforcement processes, with an eye toward keeping up with technology.
Coleman also said there is a need for the Bar to better educate and inform its members about existing technology tools available today.
“We need to figure out a way to provide technology consulting services to our members,” said Coleman, adding that it is also important for lawyers to understand confidentiality concerns as they relate to technology.
The commission needs to come up with some “technology best practices” that address “what we are calling e-etiquette,” he said.
“There is no question technology is going to affect how we practice,” Coleman said. “There will be a point in time when artificial intelligence replaces some of the things that lawyers do. In some areas, maybe that is OK. But we need to find a way to educate the public as to what lawyers do, the benefit of lawyers, and focus on and identify the areas that no matter what the technology, it can never replace what we do.”
Bar Admissions Group
Scriven said the Bar Admissions Group plans to look into alternative business structures, including nonlawyer ownership in law firms; multi-jurisdictional practice, and reciprocity among lawyers — and how to police those lawyers; and increasing competition from nonlawyers.
“We see those as coming trends,” Scriven said.
The group will also examine the possibility of a uniform bar exam for the nation, Scriven said, noting 13 states have already moved to administering a uniform exam.
“Not sure how Florida should approach that, but it is an issue we will have to address,” he said.
Scriven said the admissions panel will also explore “some pre- or post-admission training for lawyers, akin to an internship or apprenticeship or residency program.”
Delivery of Legal Services/Pro Bono Group
Stone said her group will delve into not just the delivery of services to indigents, but to the middle class who are increasingly being shut out of access.
“We will look at the need for systemic change to the legal aid system right now that may include sliding-scale fees and reclassify who is entitled to pro bono,” Stone said.
Stone also foresees a need for institutional changes to the court system that may include a more simplified system for smaller matters and an alternative dispute resolution component overseen by the courts.
The group also wants to reinvigorate the profession’s pro bono culture and expand it to include nonlawyer participation under the supervision of lawyers.
“Nonlawyers are very much a part of solving this problem,” said Stone, adding the group would also like to identify nonmonetary incentives to promote pro bono.
Stone said the commission also needs to look at liberalizing the use of nonlawyers, perhaps through certification, to help lower costs and study law school curriculum with an eye toward more clinical work and internships, which would also facilitate greater access.
Legal Education Group
Abadin said the Legal Education Group wants to “explode the model” of how lawyers are trained and redefine what it will mean to be a lawyer in 2033.
“What we really want to think of is restructuring the curriculum, not tweaking a course here or there,” said Debra Moss Curtis, vice chair of the Legal Education Group.
“We kept coming back to that word ‘everything’ — what is taught substantively, what is taught as practical skills, what is taught experimentally.”
Curtis said the group’s consensus is that law school education needs to be “rebuilt with the idea that we need to restructure it to meet the legal demands of the market.”
Pettis said he is excited to see this process unfold over the next three years.
“It is going to be really important that we not allow ourselves to look only in the short term, but that we do the hard look to the years to come,” Pettis said.
“When you see advancements, you need to do more than tell people what you do is really valuable. You need to adapt to the changing world, and if you don’t adapt to the changing world, you will be the buggy-whip manufacturers that don’t have a place in our society.”
Riskin said Vision 2016 has an opportunity to lead the profession.
“For The Florida Bar to be the exemplar in the world, in terms of looking at the future and helping your constituents manage the transitions, that is not hyperbole,” Riskin said. “In fact, it is my hope for you, and my hope for the profession, because it is a hard, hard thing to do. But with the tools being assembled, I believe you have a shot.”