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April 13, 2020

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

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Where do interactive web sites fit in this scheme? They aren't books and they aren't people. Let me elaborate on this a bit.

I was a speaker at the ABA Tech Show last year on new business models for the legal profession. Some of the new business concepts involve other forms of consulting service. Others involve publishing, training, software, expert support systems, expert systems, and the like. Many of them involve stepping outside the "traditional law practice" box and in fact competing with the rest of the world on equal terms. Lawyers ought to be able to do that. If we can't, we're in more trouble than we let on.

These new products and potential products that have not yet been built are by no means equivalent to the human to human diagnosis and counseling and, most importantly, reasonably informed people would never expect them to be.

The benefits of these new systems will not and cannot be realized by equating them with "the practice of law" as such (and I say this as a lawyer, lawyer-innovator, state bar leader, lawyer- technologist, former big firm partner, former inside counsel, etc).

Normal people easily distinguish between people and products, just as they do between books and people, even though people write books and people build products. And so too must the legal profession recognize this distinction if we are not become a part of the problem rather than part of the solution to the enormous need for better ways to distribute legal information. Products built by law firms and represented by them to be equivalent to traditional legal services or backed with additional layers of services can be easily distinguished from products not so warranted or combined.

Medical web sites are not doctors either (even though there is a great currently circulating story about a person who credits Google with saving his life when he had the beginning of a heart attack. He checked Google, then headed off to the hospital, where he was caught in time.)

The public, I also suggest, and as futurist Richard Susskind suggests, is extremely interested in such products and web-based applications precisely because of the fact that, and perception that, legal services are often "over-engineered" and people do not in fact seek a "lawyer-client" relationship but a user-product relationship.

Moreover, products cannot be held to the standards only humans can achieve. Otherwise products must have moral and reasoning powers to be judged equivalent to those capable of being provided by the worst human lawyer on the planet. And I assure you these products do not and will not acquire these powers. Robots are not people. Information "machines" are not, and will never be, "lawyers" and will never "practice law" even if they become handy electronic tools and save people some time and provide them with some just-in-time education and package in some legal knowledge. Software is software. Just about everyone (except certain members of the bar in Texas!) knows that software and books are not practicing law.

I am worried that this exercise in attempting to define something long known to be practically indefinable will turn into a wrongly aimed protectionist exercise. It is now more impossible than ever to "define" the practice of law by drawing a box around certain conduct even for humans. Extending this into the product and interactive web site realm is a prescription for causing a sharp negative reaction to the profession as a whole. Consumer protection is not a mantra lightly to be invoked if it involves denying citizens the right to make informed and voluntary choices about the nature and degree of the information or assurance they want.

Better to focus on disclosure about who is and is not a licensed "lawyer" and whether or not a product comes with the commitments and responsibilities and rights and protections of a "lawyer-client" relationship.

Richard Susskind's writings about the future of law are instructive here, and I hope and trust you folks are reading them!

LaVern A. Pritchard / PRITCHARD LAW WEBS