For more than a decade, early advocates of the Reinvent The Future of the New Normal of Law have been telling lawyers that the end is near. The preferred analogy was that technology and alternate models for the practice of law were a speeding train, and that if we didn’t hop aboard, we would miss it.
Some of us have been watching this train all along. We watched as those shouting their glorious predictions of future greatness fell off, never to be seen again. Lexblog’s Kevin O’Keefe notes that after a decade of attending LegalTech, the view of the midway is filled with fresh young faces.
The exhibitors are getting increasingly younger. Take that from someone approaching 60 way too fast. I often wonder though if the these people selling know as much about their product and what it offers as the lawyers, tech and information/knowledge management people they are selling to.
If you read between the lines, what Kevin is saying is that the fresh young faces of ten years ago are gone. Nobody talks about failure. It disappears in the ether, only to be replaced by the next fresh young face filled with the promise of future greatness.
That speeding train? It never went anywhere. It crashed. Not a big, loud noisy crash, but a slow, painful, silent crash. And that crash is still happening.
So naturally, as it became clear to those who have been watching this slow-motion train wreck happening, the American Bar Association finally hopped aboard. The ABA is nothing if not the law’s caboose, the trailing indicator of thought and action. At its mid-winter meeting, the ABA House of Delegates approved Resolution 105.
A divided American Bar Association House of Delegates approved Monday a group of model regulatory objectives for the delivery of nontraditional legal services that had both sides of the issue debating whether it opens the door for expansion of nontraditional legal services.
Debating? The resolution seeks to provide a framework for approval of non-traditional legal services. For those who aren’t clear on what that means, it’s a euphemism for law practiced by and owned by non-lawyers, delivered using technology and without recourse. The ABA had two choices. Condemn non-lawyers on the internet taking money from unsuspecting clients, or enable it.
The decade of cheerleaders for non-traditional services must have still been ringing in the ears of those delegates who, like an old man who doesn’t realize how ridiculous he looks in bell bottoms, pretend to be on the cutting edge. If they had a clue, they would realize that the train not only passed them by already, but had crashed. So there they were, a decade late, hopping aboard the crashed train.
The Resolution’s criteria aren’t terrible. In fact, they’re quite pedestrian for the most part. The problem is that the ABA decides to enable the non-lawyers to sell snake-oil at all.
ABA Model Regulatory Objectives for the Provision of Legal Services
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
One consideration worth noting is “J,” where the ABA tries to double down on its fashionable coolness and shed its historic, and well-earned, reputation as a stodgy old white man’s club. Are they suggesting that non-lawyer ownership should only be approved if it’s 13% black and 1% Pacific islander? Can we split fees, as long as it’s with women?
What does this silliness mean?
The resolution acknowledges the changes in the legal marketplace, such as Rocket Lawyer and limited license legal technicians in Washington state, and sets out 10 regulatory principles that each state’s highest court be guided by as it assesses existing regulatory framework and any other regulations related to nontraditional legal service providers.
“We must embrace change in terms of how it will help the public that we are sworn to serve,” said Judy Perry Martinez, who chairs the ABA Commission on the Future of Legal Services. She added the resolution is “neutral” to the concepts of alternative business structures and fee splitting.
There is no such thing as neutral, and the committee that propounded this resolution is dedicated to facilitating the train wreck.
Easy access to affordable legal services is critical in a society based on the rule of law. Yet our courts are seriously underfunded. Legal proceedings are growing more expensive, time-consuming, and complex. Many who need legal advice cannot afford to hire a lawyer and are forced to represent themselves.
At the same time, technology, globalization, and other forces are transforming the ways legal services are accessed and delivered. Familiar practice structures are giving way in a marketplace that continues to evolve. New providers are emerging, online and offline, to offer a range of services in dramatically different ways.
Sounds pretty darned rosy, provided you haven’t been paying attention to the train. If you read these sentences and say to yourself, “but these are non-sequiturs, contradictions, that make no sense,” you’re not missing anything. It’s not that there aren’t problems, but that there aren’t simple solutions, and the ones being raised in glowing terms aren’t about serving the public, but about skimming money off the top of the “legal space” with happy-face marketing pitches to deceive the public and grab a quick buck before they destroy people’s lives.
And there, at the very back of the train, is the ABA caboose, with its clueless and desperate sycophants smiling and waving to show how relevant it is in this new world of technology and law, as the front of the train crashes.
A young lawyer may ask why she bothered to go to law school, since that would seem a terrible waste of time, money and opportunity, given that the American Bar Association’s resolution normalizes a future where someone can profit off the need for legal services without any heavy lifting. The best answer to the question is that the ABA no longer matters to the bar or society. It has reduced itself to irrelevance by pandering to the latest fashion trends, forsaking whatever purpose it once had.
This isn’t the end of lawyers. It’s the end of the ABA.