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July 01, 2019 July/August 2019

Looking Back on the 2020s: What a Decade

What will follow?

Darrel Pink

As I look back over the past decade, on the eve of our 2030 long-range planning meeting, I am astounded and proud of what the legal profession has accomplished. Ten years ago the doomsayers had the legal profession on the verge of extinction. Our professional associations at both the state and national levels resisted change. Lawyers flocked away from membership in bar associations that did not cater directly to their practice areas. Technology in general, and artificial intelligence in particular, was painted as more threatening than it had been in the earlier years of the century. We lived with an access-to-justice crisis that saw millions of citizens left with inadequate legal services or none at all.

Governments saw little value in adequately resourcing the justice enterprise and relied on the adage “there are no votes in justice.” Our profession watched the rule of law be threatened through political leadership acting on factually untethered emotions and a decidedly autocratic bent. However, we came to realize that preserving the integrity of the Constitution and the values of equality for all were more important than some limited lawyer-centric self-interest. That was the hard-won change we witnessed over the last 10 years. It’s been quite a ride.

The turning point vision came from the giant of California and the smaller state of Utah. These states set the profession on a new path. It started with their appreciation and conviction that the public needs legal services but not necessarily lawyers. They followed the lead of some international organizations by steering in a new direction that put the needs of people first in the justice sector, as was advocated by the Hague Declaration on Equal Access to Justice for All by 2030. Mostly we learned that we needed to commit to the delivery of legal services in addition to the practice of law.

What have we accomplished?

Legal services delivery.

Practicing law, once the exclusive domain of lawyers, is no longer the dominant model for providing legal services to clients. The monopoly of lawyers has been abolished in favor of allowing a broader range of professionals and paraprofessionals to assist individuals and organizations with their legal issues. The unaffordability of lawyers has given rise to new opportunities for trained and licensed legal technicians or paralegals to offer, at much lower costs, an ever-increasing range of legal information, services and advice. The public quickly saw costs come down and an increase in useful services. The regulators, by enabling the development of new service providers such as court navigators, achieved their primary goal of increased availability of law to the public.

Self-represented litigants.

Once the bane of the bar, we learned that the legal system, no longer lawyers’ exclusive domain, must coexist with thousands of people who represent themselves in addressing and resolving disputes. The courts dramatically adapted their processes to meet the needs of self-represented litigants. They have simplified procedures; adopted plain language forms, policies and processes; and made information readily available to users, so navigating what is still a complex system has become much easier. My favorite development has been the interactive kiosks and online information centers established in many jurisdictions so the public can access their files and know what the next steps are by simply accessing their personalized court-based apps.

Online legal service providers.

It is hard to remember why lawyers fought so hard to oppose LegalZoom, Rocket Lawyer and other early innovators. The proliferation of legal apps, with their connections to a wide range of service providers, has been astounding. To witness how a person, on being detained by the police, can have legal advice before reaching the police station; to see how small companies are now incorporated using handheld devices; and to see real estate being transferred with no paper, using widely available artificial intelligence applications, shows how law has been democratized. Lawyers have been involved, but they are not at the center of these developments.

The modern large law firm.

Law firms no longer look like the one where I started my practice. The partnership model has largely disappeared in favor of one where lawyers and other service providers own shares and, in turn, share fairly in the firm’s profits. The pyramid, with senior lawyers at the top feeding off the labor of associates, is gone. Merit and talent now drive law firms. Some have adopted the multidisciplinary practice model and provide a wide range of services to their clients. Whether it's accountants, tax advisors, engineers or legal process experts, the model has so evolved as to be unrecognizable to the lawyer from 2010 or before.

The demographics have also changed. Women, lawyers from different races and those from historically underrepresented communities are now commonly in leadership positions. Though parity has yet to be achieved, the recognition of talent as the basis for senior roles has paved the way for merit being the deciding factor on selection of law firm officers.

The large firms are now often associated with, or integrated into, what we once called accounting firms. Once the profession recognized large global clients needed different and more flexible access to professional services, the barriers to lawyers working in them disappeared. The regulators established systems to ensure that lawyer services, even within multiprofessional firms, could be effectively segregated, so whether they worked alone or with other professional advisors, the high ethical norms of the legal profession would still dominate. I am often surprised to hear my accountant friends speak about how they are bound by professional-client confidentiality on files where legal services are part of the suite of services being provided.

The modern small law firm.

Unlikely partnerships have formed as needs developed. It is how lawyers and a wide range of consumer-focused professionals have partnered to enhance access to justice. It is as common today to see a social worker advocating in a family law file as it is to have a lawyer or paralegal in court. It is common to see firms in niche areas, such as high tech, with legal expertise in-house to deal with all their clients' legal and related needs.

The regulators.

Regulators have largely abandoned regulation that trumpets the value and work of lawyers, adopting instead a clearly defined role as public protectors in a way that was inconceivable a decade ago. They have become enablers of innovation and creative legal services delivery. They recognized that lawyers alone cannot come close to providing the extent of legal services required by the public. They also recognized that if radical change was not allowed, there were risks the public would abandon support for the justice system and, with it, the rule of law. Because courts were largely inaccessible and often irrelevant for most disputants, 85 percent of the public used no formal dispute resolution systems when they had legal issues. This is particularly true if those legal issues were intertwined with other matters such as poverty, illness or employment. Many regulators had to adopt approaches to allow flexible and creative models to develop.

Regulators began to regulate the entities providing legal services by creating the standards and expectations for all legal service providers, regardless of whom they used to deliver services to their clients. The regulators finally recognized that the ownership of a law firm made no difference to the ethics or competence of the services being provided if it was clear to all who was responsible for both. They focused their efforts on developing models to regulate based on the risk of harm to the public. By adopting principles akin to right-touch regulation, a concept developed in England, they dramatically changed their emphasis toward supporting and encouraging high-quality legal service delivery and putting far less emphasis on rigid and inflexible rules. This occurred as regulators more clearly prescribed the outcomes all involved could expect from their work and then measured their effectiveness with appropriate reporting. Though discipline remains important and consumes considerable resources, it’s not the primary purpose of regulation. Instead, far greater attention has been paid to the front end of education and skills development, and models of continuous enhancement of those skills.

National practices.

Though we still have 50 states and 50 state bars, the adoption of the national bar standards has opened mobility for cross-border and multistate practices. A qualified legal professional in a reciprocating state can provide legal services in any other reciprocating state on a temporary basis and can transfer permanently to another area using a process as simple as getting a new driver’s licence. Prosecution of lawyers for the unauthorized practice of law has almost disappeared.

The courts.

As the overseer of the legal profession, legal services delivery and the primary place for legal disputes to be addressed, most of our front-line courts would not be recognizable to lawyers who practiced in the last century. Those courts have become multimodal dispute resolution centers. The work initiated in British Columbia, Canada, to develop effective online adjudication through its Civil Resolution Tribunal has spread across the continent, allowing small civil matters to be effectively adjudicated using a readily available online platform. In some states the model has been adapted to handle all highway traffic matters and lower-end criminal charges.

The most profound change has happened in family law where courts have taken judges out of their traditional roles and now use a range of other skilled professionals, such as social workers, psychologists, financial analysts and mediators, to assist in peacefully addressing the consequences of intimate partner and marriage breakups.

Many courts have also benefited from using indigenous healing processes and other traditional conflict resolution practices brought to us by immigrants from across the globe.

Final thoughts.

We have come a long way. As I look back, I see how “putting the public first” made a difference. When we embraced technology and allowed law firms to be capitalized differently, we turned a significant corner. We clearly articulated why the rule of law must be preserved and enhanced, and that can only happen when civil society is the norm, when poverty and difference are no longer grounds for denial of access to legal services. This became a bipartisan issue as many interested parties realized the quality of our democracy was at stake. And lawyers, by recognizing the importance of their public calling, committed to becoming part of the solution when they previously had been part of the problem.

A decade is not a long time. Change continues to challenge us every day. Across the profession, the courts, other legal services providers and governments have worked collaboratively to strengthen the administration of justice, to enhance the public’s access to justice and to affirm our commitment to the rule of law. It’s a work in progress. By recognizing that if we did not make fundamental changes, the threat of anarchy was real. Thankfully we had the resolve to prevent catastrophe. Now we wait to see what the world will look like in 2040.

Darrel Pink

Darrel Pink was the executive director of the Nova Scotia Barristers’ Society, the legal regulator in Nova Scotia, Canada, for 28 years. He now provides strategic and governance advice to several regulators across Canada and practices in association with Steinecke Maciura LeBlanc of Toronto. [email protected]

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