November/December 2018

Highlights

Staying Ahead of the Future

Reid Trautz and Jim Calloway

The ABA Commission on the Future of Legal Services issued its final report two years ago—and then closed up shop. The report highlighted the various forces at play within and outside the profession, including more powerful and affordable technology, louder calls for more access to justice, concerns about lawyer self-regulation, changing demographics and evolving consumer expectations. For many lawyers that report served as a catalyst for examining and debating the rules, laws and traditions that impact our profession.

So let’s inventory several future-of-law initiatives that are underway.

Futures Conferences

No fewer than 46 recent legal conferences took place in 2017–18 where the future of law practice or innovation was the primary topic or a major theme, according to a list compiled by the ABA Center for Innovation (abacenterforinnovation.org/conferences). Law librarians, solo practitioners, managing partners of large law firms, legal technology innovators, law students and law professors are gathering to discuss and debate the future. This list omits many solo and small-firm conferences with sessions that likewise touch on these themes.

Technology

For the past few decades, legal technology was about the lawyer’s desktop. More recently the technology has evolved to the cloud, but the technology was still about a lawyer or paralegal doing the work. While this evolution continues, emerging technologies are less about lawyers crafting individual documents and more about changing how legal services can be delivered. How can lawyers better collaborate and provide legal solutions to consumers? What technologies can replace costly aspects of delivering legal services?


There is no better place to see how technology is changing than at ABA TECHSHOW. This conference has been a part of leading that desktop technology evolution but also the bigger picture of how legal services are delivered to more people who need them. That will be even more apparent at ABA TECHSHOW 2019 in February in Chicago.

Legal Ethics

We have long heard criticism that the Model Rules of Professional Conduct restrain innovation and modifications to the Rules happen slowly, while technology-fueled changes to the way the world does business are accelerating.

A new effort, separate from the ABA or any traditional lawyers’ organization, is underway with a stated goal of creating a new ethical code of conduct. It purports to be a data-driven approach to help lawyers better assist clients and innovate while competing with emerging technologies. The first draft of the Data-Driven Ethics Initiative was scheduled for release in October.

Access-to-Justice Initiatives

The Self-Represented Litigation Network has grown in scope and influence. This organized effort is a far cry from the day when many lawyers, and perhaps some judges, viewed self-represented litigants as annoyances that impeded the smooth functioning of the courts.

Limited scope representations are a way for some consumers to afford a lawyer. Such arrangements, permitted by the Model Rules of Professional Conduct, allow consumers to purchase only the services they desire from a lawyer. Many jurisdictions have experimented with various methods of permitting lawyers to provide these services related to litigation, including limited appearances and “quick withdrawals” as counsel. In 2017 the Oklahoma Supreme Court added a new district court rule allowing lawyers to disclose to the court in writing their participation in drafting documents to be presented to the court without entering an appearance or having further responsibility for additional legal work. This approach is clear and simple.

The Oregon State Bar Futures Task Force and, more recently, the Illinois Attorney Registration and Disciplinary Commission have stated that access to justice would be improved by relaxing the prohibition against fee sharing in Model Rule 5.4 to allow lawyers to have financial arrangements with online lawyer referral services, with disclosure to their clients.

The future is playing out in court too. The Florida Bar is in a legal battle with a technology company that created an app to help consumers resolve traffic tickets. At issue is whether the state bar can prevent a technology company from competing with lawyers in light of the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC. One federal agency has opined that the organized bar cannot. The U.S. Department of Justice’s Antitrust Division has filed a Statement of Interest in the matter, opining that “new and innovative mobile device apps can be disruptive. Business models entrenched for decades have witnessed new competition from mobile platforms that can profoundly change an industry. But almost invariably, the winners from the process of innovation and competition are consumers.”

In response to the North Carolina decision, the Supreme Court of Washington is revamping its rules to limit its Practice of Law Committee to educating the public about legal services options and referring any suspected unauthorized practitioners to the state consumer protection office.

Conclusion

The future is clearly evolving. It’s just not always obvious to the busy practicing lawyer. That’s where the ABA Law Practice Division (LP) has a continuing role to play. LP has long been a leader in defining how lawyers deliver legal services. We must continue that role in which we excel—taking the theoretical and making it practical for the practicing lawyer. Whether in this magazine, at ABA TECHSHOW, in online educational seminars or at in-person conferences, we must help translate these disparate actions and events into practical terms, so lawyers in all types of settings can create their future in the practice of law.

Reid Trautz

Reid Trautz is senior director of the American Immigration Lawyers Association’s Practice & Professionalism Center and was a primary author of its Future of Immigration Law Practice Report in 2016. Email him.

Jim Calloway

Jim Calloway is the director of the Oklahoma Bar Association’s Management Assistance Program. He blogs at Jim Calloway’s Law Practice Tips and co-produces the monthly podcast, The Digital Edge—Lawyers and Technology on the Legal Talk Network. Email him.

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