It is time to shift the conversation when it comes to innovation in the legal profession. I’ve yet to meet a legal professional who thinks innovation is bad. Different levels of tolerance for change, however, are common. I understand that this isn’t a newsflash for most or perhaps all of you reading this, but stick with me.
Here is how many discussions for significant innovation in the legal profession currently work:
“Hey, here’s an idea that recognizes not every consumer in the world wants to always use a lawyer for legal help. Perhaps we need to look at regulatory and rule changes to recognize this fact. Here is a bunch of data that supports consumers getting access to legal help through other means besides lawyers, and they are not being harmed in the process. Shall we proceed with some rule changes?”
“No.”
“Why not?”
“Because that would ruin ‘our profession.’ Discussion over.”
“<Sad face>”
[And scene.]
Unfortunately, this is where a lot of innovation goes to die. Futures groups from around the country propose ideas related to non-lawyer ownership and/or recognize the importance of non-lawyer legal service providers in the marketplace (such as LegalZoom and Avvo). Proponents of such change come forward with ideas and the data and research to support the change, but opponents simply vote against it or toss it aside without any opposing data.
Put All the Evidence on the Table
To tackle this, we need to shift the burden of proof on innovation in the legal profession. It seems like proponents of change have to meet a “beyond a reasonable doubt” standard. If opponents want to strike down a concept, they are not tasked with the equivalent burden of coming forward with evidence as to why that innovation is harmful to the public.
What we really need is effectively an affirmative defense for those opposing innovation. If you think non-lawyer ownership is evil and that bringing investors into the law firm world is harmful to the consumer, then present the evidence supporting your claim. If you are going to take an anti-Avvo or LegalZoom approach in the ethics opinions in your state, then you also need to show the data that somehow non-lawyer owned legal service providers are harming the public.
We have an issue with 80% of the population in some parts of America not getting access to legal services that they need. In other words, what we are doing isn’t working. We can put on all kinds of fancy galas to raise money for legal aid (and similar groups), but until we adjust the legal services delivery model—and regulatory landscape—these needs will remain unmet.
Seriously, Look at This
Think I am making this stuff up? Let’s visit the discussions and the evidence in the ABA Commission on the Future of Legal Services Final Report. Before issuing the report, the Commission sought comment on certain hot topics, including alternative business structures, unregulated legal service providers and legal checkups, among others. The Commission (and subsequently the report) examined the current status and data regarding these issues.
The comments on some of these topics were pretty amazing. Some were well thought out and others were simply protectionist responses trying to avoid change and to protect lawyers—not necessarily the public. You can read them for yourself and make your own judgment on the reactions. Make sure you read this one.
I Know, Change is Hard
The fear of change is not new. Raise your hand if you thought the “cloud” was the devil when lawyers started using it to store client data. Now, put your hand down if you don’t currently use the cloud. Right, your hand should still be up (even if it looks weird that you’re reading this in front of the TV next to your family or you are in a meeting). We are all using the cloud in some way or another. Those who opposed it at the time felt uncomfortable with the concept. It was fear of something new in a lot of cases, or a lack of knowledge that created the push back.
That’s where we are today with concepts like alternative business structures and the introduction of LegalZoom, Rocket Lawyer and Avvo (and others) into the marketplace. It is easier to say “no,” than to really dig in and do the research to see if such concepts are actually harmful to the public.
Another approach would be to be more open-minded to trying new concepts with the idea that some failure is inevitable. No matter how long an issue is studied or researched, the chance of a 100% success is not reasonable. Some ideas will fail, but that doesn’t mean you should resist trying.
As the Commission’s report shows, alternative business structures (nonlawyer ownership) in the UK and Australia have significant regulatory bodies to protect the public, but the data shows no evidence of harm to the public. Does that mean that every alternative business structure has worked? Of course not. Different models need to be tested and experimented with to find the best path forward. So, simply saying “no” because an idea feels different or edgy should have no place in the modern legal profession.
It Will Be OK
Is this uncomfortable? You bet it is. Nothing significant happens without some discomfort.
Shifting or equalizing the burden of proof for adopting innovative concepts will create better results and discussions. Change is inevitable, so let’s try to get as many people as possible to buy in on how the delivery of legal services should evolve.
About the Author
Chad Burton is the CEO of CuroLegal, and is the chair of the ABA Law Practice Division’s Futures Initiative. He also is a member of the division council and is on the governing board for the new ABA Center for Innovation.