In what looks a bit similar to the UK’s famous Clementi Review, which led to new law firm business models in a drive to better serve consumers, the California State Bar has launched a Special Task Force to explore how innovation and changing Bar rules may help to improve access to justice (A2J) and consumer legal services.
The Task Force will have 23 members, with ‘non-lawyers’ as the majority – in what is a departure from the lawyer-dominated norm of many projects led by legal organisations.
Meanwhile, one of the 23 members will be Dan Rubins, the founder of legal AI pioneer, Legal Robot, which has been working on NLP/ML applications for several years.
‘A non-attorney majority helps ensure that the recommendations of the Task Force are focused on protecting the interests of the public,’ said the group. Justice Lee Edmon will serve as Chair of the Task Force.
The Task Force said it will look especially at whether rules on unauthorised practice of law (UPL) need to be changed. In particular they make reference to the two following points based on an earlier study:
- Ethics rules and the unauthorized practice of law are the primary determinants of how the current legal market is structured. Under ethics rules, any business engaged in the practice of law must be owned and controlled by lawyers. This prohibition limits both the opportunity and incentive for non-legal entrepreneurs to enter the legal market.
- By modifying the ethics rules to facilitate this close collaboration [of lawyers and nonlawyers], the legal profession will accelerate the development of one-to-many productized legal solutions that will drive down overall costs; improve access for the poor, working and middle class; improve the predictability and transparency of legal services; aid the growth of new businesses; and elevate the stature and reputation of the legal profession as one serving the broader needs of society.
After following ethics debates in the US for almost 20 years, this is very powerful stuff. Many lawyers and innovators in the US have been trying to figure out how to change the status quo, but have always run up against the UPL barrier, which is fiercely enforced.
In fact, UPL was quoted by critics at Joshua Browder’s DoNotPay platform recently after he offered people a digital method for launching small claims. UPL is seen my some legal conservatives as a way of stamping out those who would challenge the old order.
DoNotPay, which is based currently in California, is a case in point. Someone creates a tech-based application to help people with legal issues. That company is actually advised and supported by several lawyers, but at the same time some accuse it of breaking ethics rules because the owner of it is not a lawyer/law firm and that we must take instead the only alternative path and go back to the old system of 100% manual lawyer domination for the delivery of anything substantive related to the law.
Clearly, yelling ‘UPL! UPL!’ every time someone tries to help via technology is not a sensible way forward, especially given the huge A2J problems in the US and UK, not to mention the perhaps even greater problems in developing nations around the world.
In short, this is a big step by one of the US’s largest Bar organisations, covering a large number of people and law firms.
In a statement the group said: ‘The State Bar of California’s Board of Trustees….will study ways to increase access to justice for all Californians by responsibly harnessing the power of technology.’
Leah Wilson, Executive Director of the State Bar of California, said: ‘Too many Californians needing legal services cannot afford an attorney or don’t have access for a number of other reasons. By harnessing innovative approaches from the tech sector while maintaining our paramount commitment to protect the public, we hope to help bridge the gap. This is an exciting step for the State Bar.’
Dan Rubins said in a public statement: ‘[I am] thrilled and honoured to be appointed to this task force to increase access to justice for all Californians through responsible use of technology.’
And for those who would like to know more, here is the Task Force Charter:
The Task Force on Access Through Innovation of Legal Services is charged with identifying possible regulatory changes to enhance the delivery of, and access to, legal services through the use of technology, including artificial intelligence and online legal service delivery models.
A Task Force report setting forth recommendations will be submitted to the Board of Trustees no later than December 31, 2019. Each Task Force recommendation should include an explanatory rationale that reflects a balance of the dual goals of public protection and increased access to justice.
In carrying out this assignment, the Task Force should do the following:
- Review the current consumer protection purposes of the prohibitions against unauthorized practice of law (UPL) as well as the impact of those prohibitions on access to legal services with the goal of identifying potential changes that might increase access while also protecting the public. In addition, assess the impact of the current definition of the practice of law on the use of artificial intelligence and other technology driven delivery systems, including online consumer self-help legal research and information services, matching services, document production and dispute resolution;
- Evaluate existing rules, statutes and ethics opinions on lawyer advertising and solicitation, partnerships with non-lawyers, fee splitting (including compensation for client referrals) and other relevant rules in light of their longstanding public protection function with the goal of articulating a recommendation on whether and how changes in these laws might improve public protection while also fostering innovation in, and expansion of, the delivery of legal services and law related services especially in those areas of service where there is the greatest unmet need; and
- With a focus on preserving the client protection afforded by the legal profession’s core values of confidentiality, loyalty and independence of professional judgment, prepare a recommendation addressing the extent to which, if any, the State Bar should consider increasing access to legal services by individual consumers by implementing some form of entity regulation or other options for permitting non lawyer ownership or investment in businesses engaged in the practice of law, including consideration of multidisciplinary practice models and alternative business structures.
P.S. for those who missed the Clementi Review back in 2003/4, it was a major project to see whether the structure of the legal market and the rules governing it needed to change to allow better access to justice and provision of services to consumers.
It in turn led to the Legal Services Act, which set into law the ability to share profits with non-lawyers and generally was seen as a huge innovation injection into the UK legal market.
The review also saw the separation of the Law Society from its regulatory duties, which were taken on by a newly created entity called the Solicitors Regulation Authority (SRA). A Legal Services Board was also put in place – to regulate the regulators – with a strong focus on upholding access to justice and supporting consumer legal services.
The SRA has continued to be a force for change and innovation ever since, and is now very vocally supporting A2J tech, including AI-driven solutions, with a new project to build a ‘regulatory sandbox’ to see how it can help provide the best framework for the use of these technologies. The Law Society is also now, under its new President, Christina Blacklaws, pushing forward the message about the need for the legal sector to embrace technology.