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January 01, 2019

The Flexible Lawyer: Promoting Agility and Innovation

Your future practice is now, and creative rethinking about your services and delivery can help you stay profitable.

Roberta L. Tepper

It is no secret that the practice of law is changing at light speed. Unsurprisingly, the proliferation of law-related technology continues to create both challenges and opportunities. Using that technology to create self-service products for consumers, and the corresponding impact on the practice of law, has started a sea change that shows no signs of slowing or abating. Add to that the increasing “threat” that artificial intelligence (AI) will make lawyers obsolete and you have the perfect storm, leading pessimists to predict the demise of lawyering as a profession. Lawyers and law firms, however, are not on the way to extinction. The tidal wave of change seen in recent years does mean that lawyers need to cultivate agility and embrace innovation and technology to succeed. They need to become flexible lawyers.

Why Lawyers Should Care

The plethora of DIY legal service products in the online market gives consumers the opportunity to avoid a trip to, or the expense of, a lawyer. Searches of studies and surveys of these products reveal that while less expensive, these services may not adequately or fully serve their users. Some lawyers anecdotally report that they are building entirely new clienteles by fixing the less-than-desirable products resulting from these DIY options. Notwithstanding these risks, these services are like catnip to consumers—they’re “easy,” fast and affordable. They’re available 24/7/365. Fees and costs are a known quantity; they may be accessed from any computer or mobile device in any location. For the unwary consumer, the lure of DIY—keeping control of their legal matter and saving money, at least in the short run—seems irresistible.

There’s also been a lot of discussion about AI taking lawyers’ jobs. Much of the “competition” for the consumer market is not yet super sophisticated and consists of expensive AI. The tools on which these services are based, however, are ones that lawyers can easily adopt, including automation, document assembly, decision trees and expert systems. Yes, some AI as well. In fact, the best use of AI in law is, at this specific time, the combination of AI and a lawyer. So let’s stop wringing our hands, planning for or dreading the demise of the legal profession and confidently step forward into the future armed with the skills and abilities lawyers offer—combined with a plentiful, yet judicious, helping of change and innovation.

Tech Competence—Combating the Fear

Lawyers are smart and resourceful, yet many have failed to keep pace with technology. It isn’t just lawyers though; it’s the whole justice system. Why is that? Some have opined that the reasons include the fact that, by and large, lawyers both fear and lack competence in technology.

Lawyers, even those who have grown up in a world replete with technology, may not feel comfortable with implementing technology in their practices. Being a knowledgeable end user does not automatically translate into the ability to effectively select and implement technology, nor to be innovative in doing so. Choosing appropriate and cost-conscious technology can be a challenge, particularly for solo and small-firm lawyers who may not have IT assistance. Lawyers who panic, or who do not fully educate themselves about the best available options, may end up with technology that they do not fully implement, that does not effectively or efficiently interconnect, or that they do not understand. But lawyers do not have the luxury of going old school and avoiding technology, particularly if they want to remain relevant in today’s market.

The good news for lawyers is that help is available. Of course, the ABA’s annual TECHSHOW is an amazing resource for lawyers at all levels of tech competence. The ABA Law Practice Division (LP) offers a wide variety of CLEs, as do local and state bars. LP publications are another rich source of information, in particular the “in One Hour” series of books that demystify many products and put valuable tools into lawyers’ hands. Many bar associations have in-house advisors, commonly known as practice management advisors, available at no cost as a member benefit. These folks provide consultations, recommendations and referrals to technology products that best suit the individual lawyer or practice.

Checklists and guides to assist lawyers in selecting practice management and other software, or cloud providers, are available from a variety of sources, including state and local bar practice management advisors. There are dozens, perhaps hundreds, of blogs, Facebook groups and other online resources focused on legal technology as well. Even the most tech-friendly lawyers should not hesitate to rely on the expertise of professionals in making selections of the right software and vendors for their purposes.

Predictable Fees/Unbundled Legal Services

One of the attractions of DIY services is the predictability of fees. Consumers know that for x dollars they will get a specific product or end result. This is consistent with many other professional services in the marketplace; for example, consumers know the cost they will bear when purchasing vision care. A consumer choosing a pair of prescription eyeglasses will have a variety of choices and will know in advance the cost of each choice. DIY, or low-touch, legal services offer much the same certainty. Consumers know up front what their cost will be for that option, including low-cost, price-certain options for help from a lawyer. It’s no surprise that this certainty appeals to consumers, yet how many lawyers offer a fee schedule on their websites?

This is a low-touch version of a legal representation, although there may be a lawyer “on call” online or some kind of chatbot to answer very basic questions. The fact that contact with a lawyer is not a primary part of these options clearly appears not to dissuade consumers from using them; it’s apparent that consumers do not crave the touch of a lawyer if the price is high. The flexible lawyer will not consider closing up shop but instead will revamp his or her representation design to respond to this persistent trend.

Lawyers were latecomers to the concept of alternative, or predictable, fees; however, embracing predictable alternative fees is becoming a necessity. While adopting this kind of fee is no longer rare or unusual, some level of anxiety lingers for lawyers. For example, consider the flat fee. In terms of pricing, the flat fee comes with some degree of risk to both the lawyer and the consumer. The lawyer risks that the scope of representation will require more work than anticipated, decreasing his or her net gain. On the other hand, the client risks paying the lawyer more than he or she might if the representation takes less time than anticipated.

At the financial bottom line, successful implementation of flat fees depends on integrating technology into a lawyer’s practice. Determining the appropriate flat fee requires an analysis of the time that will be necessary to successfully accomplish specific tasks to permit the lawyer’s calculation of the fee. The successful use of timekeeping software makes this process driven by facts rather than by guesses. Equally essential is automating routine tasks, routine documents and internal processes, including utilizing paraprofessionals and staff as well as maximizing other time-saving solutions. To successfully compete with a DIY service, streamlining processes and reducing or eliminating repetitive work are vital.

Technology provides essential tools to help in this endeavor, as there are a variety of stand-alone document automation tools and process automation tools in addition to practice management software suites that incorporate them. An increasing number of practice management platforms offer features such as rules-based calendaring, client portals and more—providing the tools to provide quality service while minimizing routine labor-intensive tasks. Software specific to individual practice areas is also available. In addition workflow automation tools like Zapier and IFTTT make it easier than ever to connect software and apps, thereby eliminating much “busy” work and allowing lawyers to focus on work only they can provide.

The partner of successful automation is limited scope representation, often called “unbundled legal services.” Permitting consumers to opt in on legal services for specific aspects of their cases and opt out for tasks they have the ability to accomplish on their own is key to providing value for service. This is the hallmark of the flexible lawyer—to understand that the old model of taking over the litigation in full is no longer what consumers either desire or can afford. Equally important is the ability to clearly articulate to the client the services they are opting for and the associated prices. “Scope creep,” the slow and insidious increase in the amount of work to be handled for the same fixed price, is the downfall of both flat fees and unbundled legal services.

Project Management

Project management is a relatively new concept in the legal world, but it has caught on like wildfire. Even in law firms still billing hourly, project management has become essential to provide the certainty and extra value consumers demand. For larger firms, or for larger litigation, it may be impossible to unbundle or to adequately predict and charge a fixed fee. Even in those circumstances, however, project management is a tool by which a combination of technology and cost containment may produce a representation that is consumer-focused and frugal. Tools like Asana and Trello are useful to manage specific tasks within the project and coordinate virtual teams, thereby utilizing the best possible talent regardless of their location.

Bespoke Legal Services

Offering unique legal services, from scratch, is another option. This might include crafting one-of-a-kind contracts or legal services created for clients with unique needs. Creating this kind of niche practice may be the result of focused networking and marketing or it may simply be serendipity, falling into a narrow, specialized area of practice. Either way, it’s an option to consider when considering providing unique value in the marketplace.

Another bespoke variety of legal service offers personalized client service balanced by the kind of high-touch/high-volume made possible by successfully implementing technology. Clients get face-to-face lawyer contact with the one-on-one attention they want. The lawyer balances these time-intensive interactions by minimizing redundant work through process and document automation and leveraging technology, including some of the tools mentioned above.

Filling the Legal Gap

Much attention has been focused on access to justice and the gap in legal services, resulting in part in the proliferation of DIY products. Pro bono legal services have been the frequent target of this focus, but the legal service gap is much larger. Consumers—that is, potential clients—who do not qualify for pro bono legal services and yet cannot afford traditional full-freight legal services comprise a large and largely underserved population. These are the consumers who are more likely to either access DIY solutions or represent themselves pro se.

Lawyers seeking traditional lawyer fees and salaries are missing a great opportunity. Reimagining a legal practice can address the representation gap and enable a visionary, flexible lawyer to build and grow a thriving practice. Key to this reimagining is, as one might anticipate, leveraging technology to provide efficient and cost-effective services and embracing limited scope representation and unbundled legal services. Add to that flexibility about physical location and venue, with an agile and consumer-friendly website, and you have a recipe for a vibrant practice.

Office? Where and When?

Lawyers reimagining their practice must consider where, or whether, to have a physical office. If a physical office is necessary, what specific needs must be met? Is there a need for meeting space, or is an office set up for just the lawyer all that is required? Technology makes virtual offices possible, perhaps augmented with some on-demand meeting space. A “true” home office may be an option if you have the means to have an entirely separate space that you can secure from the rest of your household.

Office sharing, on-demand or office co-ops and home offices all bear some ethics-related thought, particularly concerning confidentiality. The need to be able to protect the confidentiality of clients and all information relating to their representation may guide some of a lawyer’s decisions on this front. For example, having a shared receptionist to intake clients may seem ideal, but having a shared receptionist who also serves other lawyers who may handle cases adverse to yours may be problematic. A call to your bar’s practice management advisor will help you work through these issues. If your bar doesn’t offer such services, try an ethics lawyer or take advantage of some of the self-help options available through the ABA and other online entities.

Even those flexible physical office options may not necessarily meet the demands of prospective clients, including but certainly not limited to Millennials. Have you noticed the number of professional services located in malls or in big-box stores and other less traditional settings? We aren’t talking about having a law firm co-owned by nonlawyers or a business corporation; this is about making legal services more accessible and convenient. What about having a law office in a local Target, Walmart or other store or strip mall where legal-gap consumers may be found? Having office hours other than 8:00 a.m. to 5:00 p.m. Monday through Friday could be effective in reaching the underserved who might need to work during regular business hours.

It isn’t necessary to have a practice that is available 24/7/365. In fact, in consideration of the work-life balance and wellness I encourage lawyers to achieve, that kind of schedule isn’t advisable. But having a practice that makes help available when clients have time to attend to their own personal matters should be an option. For example, a lawyer specializing in defending charges of driving under the influence may be well advised to be available in the overnight hours.

Consumer-Friendly Websites

It’s vital to have an agile and well-designed website. It is no longer sufficient to have a website that looks great on a desktop computer but is the electronic version of a print ad in other formats. Today’s websites need to be mobile-friendly and have responsive designs. The flexible lawyer will look at his or her web design from the consumer’s point of view and plan accordingly. Consumers want added value, so the website must convey that message. The added value may be a short video explaining a specific topic that will help clarify that point of law or process to the consumer.

While it is a good practice to avoid creating conflicts by not allowing potential clients to submit their confidential information at their option, the website should allow a potential client to ask for an appointment or to fill out some very basic intake information.

Other Legal Services and Productizing

The example set by some forward-thinking lawyers across the country in “productizing” their legal services can help in making a practice flexible. It is necessary to do some groundwork and research, and having a conversation with a lawyer who focuses on professional responsibility (i.e., ethics) or your local practice management advisor or ethics hotline is a must. Deciding what services to offer and what prices requires that the lawyer assess his or her abilities and infrastructure.

A number of lawyers have entered into the document preparation arena as an adjunct to their legal practice. There are ethical considerations to be resolved, depending on the individual jurisdiction, but this option brings the flexible lawyer directly into the DIY environment. Clients accessing this mix-and-match type of practice have the advantage of opting to spend their limited funds effectively while assuring themselves of a local, knowledgeable lawyer as an “on call” option. Giving some products or tools away may serve as effective advertising, build loyalty with existing clients or generate leads for future business. For example, offering a child support calculator or a spousal maintenance estimator to prospective domestic relations clients may be a positive course to follow.

Ethics and Cloud Computing

It’s no longer practical, or even possible, to avoid the cloud while practicing law. Having practice data in the cloud offers myriad benefits, including mobility, scalability and flexibility, while creating new challenges that need to be addressed and resolved. Above all, security and privacy are key to maintaining client confidentiality. In addition to general cybersecurity considerations, lawyers with client/practice data in the cloud need to be mindful of the specific security needs of individual clients, in addition to the type of law practice information they maintain. For example, clients with special security clearances may have specific requirements, and practices that handle medical reports and information need to seriously consider any HIPAA requirements that impact them.

The cloud-based practitioner must also pay attention to the access and permissions of staff and outsourced workers. Those who use virtual services, such as virtual receptionists, have to determine the degree of access to individual client data permitted by the local variant of the Rules of Professional Conduct. Tomes have been written about basic cybersecurity, including password integrity, avoiding ransomware, phishing and scams; some of this reverts to our earlier discussion about lawyers and their need for technical competence.

Do these concerns mean that a cloud-based practice is inadvisable? Of course not; these are merely issues to be considered and challenges to be resolved. Having a cloud-based practice is essential in meeting the needs of clients and lawyers. The flexible lawyer’s practice requires the agility that the cloud provides, not the least of which are the automation of your practice and processes and the continual automatic updating of the products you are using. It’s not possible to consider flexible locations and hours, and lowering cost by effectively using technology and outsourcing administrative functions, without the safe use of the cloud.

Becoming Flexible

It’s a brave new world out there. Despite the glum predictions of some, it isn’t the beginning of the end for lawyers or for law as a profession. What is necessary for lawyers to remain relevant, though, is taking a fresh look at the practice of law and how it is conducted. Legal technology continues to evolve at a rapid pace and to provide the tools by which flexible lawyers, or lawyers seeking to become flexible, may reimagine and reinvigorate their practices to meet the needs of their future clients and the profession. Want to learn more? Plan to attend the 2019 TECHSHOW, Feb. 27–March 2, at the Hyatt Regency Chicago, to learn about the newest and best technology—and what is on the cutting edge of the legal profession.

Roberta Tepper

Roberta L. Tepper is the director of lawyer assistance programs for the State Bar of Arizona, where she helps lawyers begin, build and future-proof their practices, implement technology and innovate. She serves on the 2019 TECHSHOW Board and the LP Division Council. Email her.

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