Seeing - and Shaping - the Future

Sweeping change, much of it technology-driven, is posing new challenges to the legal profession that require new thinking. An ISBA task force is trying to point the way forward for Illinois lawyers.

The litany of challenges to the legal profession posed by technological and economic "disruption" is all too familiar to those feeling the impact. It includes stagnant or falling incomes among those with consumer-facing practices, reluctance of consumers to retain counsel, and new tech-empowered players reshaping legal services delivery. It has created an urgent need for law schools to better train students in non-legal concepts like marketing and for the profession to better understand its clientele.

The changes are so ubiquitous and far-reaching that lawyers are struggling to understand them, let alone to adapt. "There's kind of a broad unease in the profession based on the idea that change is happening, there are new economic strains, there are new threats from technology and new market entrants, and following all those trends is a time-consuming activity," says Mark Marquardt, executive director of the Lawyers Trust Fund of Illinois.

With that in mind, the ISBA Task Force on the Future of Legal Services has released a report detailing the field's challenges and remedies that should be brought to bear, as well as the role the bar association itself can play in doing so. "The report was designed to take a look at the broad range of threats and opportunities facing the profession and provide a broad summary, and help people put their concerns into context," says Marquardt, a task force member.

The proposals - adopted by the ISBA Assembly last month (see p. 52) - include working to capture the "latent" market of those reluctant to use legal services, promoting the value that lawyers bring to the courtroom and negotiation table, encouraging greater technology use among attorneys, ensuring that the public is protected adequately against online services that cross the line into providing legal advice, monitoring and using regulatory processes related to that issue, supporting judicial efficiency, and promoting continuous adaptation in all of these areas going forward.

The big picture

The initial impetus for the report was the move of Washington state to approve limited license legal technicians (LLLTs), which the task force concluded would not be the right solution for Illinois, Marquardt says. But he believes that issue raised a number of profound challenges worth exploring. "To put them all in a wrap-up context is a useful service," he says. "The report ends up being an extremely balanced look at embracing the future and trying to get people to see the opportunities and not just the threats."

The task force included lawyers and judges from all over Illinois and all types of legal practices, which lent itself to that balanced perspective, says Tim Moran of Schmidt, Salzman & Moran in Chicago. In forming the task force, the ISBA played its role as a professional society that promotes the economic health of its members and as a defender of the court system and the integrity of legal practice, he says.

Mary Robinson of Robinson Law Group LLC says the quickening pace of change during the past several years made this the right time for such a project. "I've been a lawyer for 40-some years. We're not used to change at this pace," she says. "It's hard not to just have it overwhelm you. We decided to take a moment, step back, and try to assess where we are in the midst of all this change."

Although technological change is perhaps at the forefront of people's minds, that's far from the only challenge, says John Coady, a retired judge based in Taylorville. "The income of sole practitioners is going down. We're having more graduates from law school than the legal economy can absorb," he says. "Corporations are asking for different things of law firms, largely aimed at reducing costs. It means increasing efficiencies."

The Task Force on the Future of Legal Services report makes several big-picture points about the challenges in the current state of the legal profession:

Unprecedented economic challenges. The report notes that solo practitioner income has fallen during the past generation, too many lawyers are unemployed or underemployed, law schools graduate too many new lawyers, and law school debt is limiting career paths. In addition, the report says, technology and alternative legal services providers are reducing consumer demand, while corporate clients exert pressure to lower costs.

The report recognizes that while some in the profession believed that the 2008-09 recession had produced a simple cyclical blip in the demand for legal services, many now believe that the changes have become more structural, Marquardt says. "We have to think differently about what consumers want," he says. "If this is a structural rather than cyclical issue, it's only going to be solved by making the legal marketplace more attractive to consumers."

These economic challenges had been growing for two or three decades prior to the Great Recession as the percentage of legal services dedicated to corporate clients, as opposed to individual clients, kept growing, Robinson says. "What has happened since is that technology has given us an opportunity to find ways to make legal services available to swaths of the consuming public who had essentially walked away, if they were ever there," she says

Consumer reluctance to use traditional legal services. This is often due to fears about costs, the report says, although in some cases consumers either don't realize their problems have a legal dimension or simply prefer to resolve it through self-representation or informal means. This is the "latent legal market" that the report identifies.

Whether attorneys like it or not, consumers are demanding more involvement in their own cases, Moran says. "They want to do, or at least have the ability to do, piecemeal work to keep costs down," he says. "They want documents they can fill out, rather than have all of these historically provided [services] done by attorneys at what [consumers] see as high cost."

Robinson senses a nervousness among consumers about walking into a lawyer's office without knowing what they're getting into before they arrive, while others might simply be put off by logistical issues, for example a single mother who lives in a remote area.

"If she can go on the internet and find immediate information about what it's going to cost and how long it's going to take, and what it might achieve, and do as much as possible electronically…it's a whole different way of interacting," she says. "Some of the issue with the population being reluctant to use traditional legal services is getting them in the door."

Marquardt uses a culinary analogy to explain those who have voted down the legal market with their feet. "Going to a law office is a little bit like going to a restaurant where they don't tell you how much your meal is going to be until after you've eaten," he says. "In a lot of cases, legal services are a lot more affordable than people imagine them to be, but because the billable hour is inherently not transparent to people, there is a fear of cost that's worse than the actual cost."

Litigants without lawyers. The number of pro se litigants has increased rapidly and that trend is likely to continue, and these self-represented parties will need assistance through simpler processes and standardized forms, the task force says.

As first vice president of the Illinois Judges Association, Coady talks about this all the time. "We want justice to be accessible to everyone," he says. "But we live in a time where the courts are reaching the point of almost being flooded - overwhelmed with the numbers of pro se. That has an impact on the efficiency of the justice system, and it also impacts how a judge conducts a matter.… The job of a judge is to be a neutral magistrate. The judge can't become a legal adviser."

Courts need to become more friendly to pro se litigants, and not just for idealistic reasons, Marquardt says. "That's not a matter of altruism, that's a matter of self-preservation," he says. "If you have to explain what a motion is to every single person who shows up in front of you, you're either going to have a big backlog, or you're not going to go home at night."

Moran is aware of courtrooms and even court divisions where more than half of litigants are self-represented. "Courts are being forced to accommodate these people," he says, including such initiatives as videoconferencing to save time during routine case calls. "A reluctance to come off the traditional way of providing services is not going to be tenable. We're going to have to adapt, as long as we're not compromising the integrity of the process."

The impact of technology. Technology has and will continue to have greater impact on the aggregation, organization, and transmission of information, including legal information, which means it's inevitable that the role of lawyers will continue to change, the task force says. To some degree, technology also will result in the automation of some basic legal tasks.

Marquardt references a Super Bowl commercial that involved IBM's "Watson" conversing with Bob Dylan. "If Bob Dylan had asked Watson a question about the Beijing municipal code in 1952, Watson could have told Bob Dylan the answer," he says. "We are approaching a moment when computers can have access to pretty much all of the information in the world, thanks to the internet, and it can process that information and answer questions."

Technology can handle up to 90 percent of the intake involved in a case, which otherwise can be very time-consuming, Robinson says. "If we learn how to use technology to do that, we're saving our clients a lot of money, and we're saving ourselves a lot of non-productive time," she says. "Artificial intelligence just knocks my socks off. The dispute resolution services that are all done electronically, they just program the options and come up with a resolution."

The impact of new actors. Non-legal, for-profit companies like LegalZoom and Avvo have met some consumers' demands for convenience, price transparency, and a "good enough" solution to their problems, which lawyers will need to contend with, the report says.

Marquardt says he shares the fear and skepticism about these new entrants as well as the ethical questions. But "there is a consumer demand for what they're offering, in some ways because of the way in which they're offering it: It is DIY, you're in control, you know what the costs are going to be," he says. "There are borders that have to be guarded in terms of ethics and consumer protection, but the legal profession needs to look at what are these companies doing right, and what can we learn from them?"

Moran agrees that regulating LegalZoom and Avvo out of existence is not going to happen but wonders why there can't be an Illinois State Bar Zoom. "Maybe it's time to challenge them on our terms," he says. "We can dislike them all we want, but the courts have not shown any interest in stopping their business model.… It's time to take the battle to the marketplace."

Limits of law school curriculum. In addition to legal skills, new lawyers need to have a working knowledge of marketing, technology, process analysis, data analysis, and supply chain management, all of which law schools - and bar associations - could be doing more to teach, the task force wrote.

The term "practice-ready lawyers" comes to Marquardt's mind when considering this set of issues. "Going forward, many lawyers are going to have to forge their own path, or they're going to have to bring new skills to existing employers, or they're going to have to work in non-traditional ways," he says. "That includes not only substantive legal knowledge, but also skills to compete in this new legal marketplace."

None of those skills were taught when Moran was in law school, but he had the advantage of having majored in business as an undergraduate. "I understood the necessity of being able to balance your books, how to negotiate the cost of office services and rent," he says. "These more practical skills need to be taught in law school. They are very difficult…to learn on the fly once [you're] out and trying to make a living."

Lack of customer understanding. Given that businesses succeed by understanding their customers as a whole - not just their immediate needs but larger hopes, fears, likes, and dislikes - lawyers need to undertake more intensive customer research to determine how they can do more to create a value proposition for potential clients.

Marquardt sees "incredible opportunity" in going down this path. "Lawyers understand their clients, but I think they don't understand the people who aren't their clients," he says. "We've got millions of people choosing not to use lawyers when they could benefit from lawyers. Why? What could we do to attract them and still maintain our ethics as a profession? That's a profound question, and the answers are not simple - but they're important."

Lawyers need to continuously stay on top of what their clients need and figure out how to deliver it, Moran says. "Their ability to stay on top of these issues is paramount," he says, which can be accomplished in part through "periodic surveys not just of membership but the judiciary, users of court services, to find out where we're falling short. It's proactive and ongoing."

Pathways to the future: The ISBA's role

The futures task force set forth several broad goals for the ISBA and the profession as a whole to pursue in the coming years and decades, to ensure the integrity and prosperity of the courts and legal market. They include the following.

Embrace and capture the latent legal market. The ISBA should establish a robust online consumer marketplace that includes education and information in addition to an online member directory that's already under construction (see the sidebar below). The association should promote availability of lawyer services and educate members about new forms of service such as unbundling, along with cost-effective alternatives like paralegals and law school clinics. Moran notes that while there's plenty of information online about low-cost legal services, such as through law school clinics, it's very decentralized and difficult to wade through for non-lawyers.

ISBA and its members should realize that many consumers want a piece of legal work but cannot afford full service, Robinson says. "It offends us lawyers that somebody can go pick out a will from a forms service, and they might not be getting everything they need," she says. "Bu they turn to us and say, 'You think that…because you want to charge us $2,500. I want to pay $500, or $150.'"

Moran says the ISBA could encourage members to set up "lawyer in the lobby" kiosks to answer questions and potentially bring in new business. "The idea of ISBA kiosks in supermarkets or shopping centers should be looked at," he says. "Why can't the mom and her three kids shopping at Meijer on a Saturday pop in and ask a question?"

Preserve and champion lawyer value. The ISBA should promote this to consumers through the association's consumer website and other mass and social media, the task force said.

"It's clear that many members of the public have a very incomplete understanding of how important the services of a lawyer can be in certain situations, and how paying a lawyer to help you with something on the front end is much better than dealing with the back-end consequences," Marquardt says. "We need to keep thinking about new ways to deliver that message and illustrate that point to achieve new audiences."

A major piece of that value is the ethical obligations unique to attorneys, Robinson says. "The thing we, as always, bring to any problem is the ethical dedication to bring consumers what they need, as opposed to what enriches us," she says. "No non-lawyer company will do that for them. Plus, if somebody is dealing with something highly embarrassing and confidential, they want to have a privileged conversation with somebody."

Support technological efficiency. The bar association can help lawyers leverage new technology through continuing legal education, law practice management resources and services, and promotion of technology that facilitates remote and long distance services, the report says.

Marquardt figures that most attorneys did not have computer engineering as their second choice of a career. "There are a lot of history majors in this profession," he says. "People need sources of good information about the best product and technology out there and…how that can affect their practice. That's a role the bar can help to play." (See the sidebar on p. 27 for more on ISBA's forthcoming tech-related resources.)

While law schools can help students get up to speed, the bar association can guide those who have been in the profession for a while, Moran says. "I've never been the most technically proficient person in the world," he says. "I could see myself taking three or six hours of CLE a year, in terms of keeping up with the offerings - phone apps, whatever else is out there."

Support public protection in legal services. The ISBA should educate the public about the legal marketplace and restrictions on nonlawyer service providers, while continuing to provide an avenue for consumer complaints, work with regulatory agencies, and take judicial and legislative action in the public interest, the task force wrote.

Although court decisions have allowed new actors to perform services that attorneys might not think they should be able to provide, practicing lawyers remain the only people licensed to practice law, Moran says. "We want to remind people that we have that experience and education, most of us are insured, and we bring to the table a level of competence that you're not going to get from a website in North Dakota," he says.

Non-lawyer services need to steer clear of consumer fraud but don't face anything near the rigor of lawyer registration, Robinson says. "We as a profession have the ability to even that playing field," she says. "Some of that will come about by recommending effective regulation - not closing down our competitors but effectively regulating people who want to be in this market."

Monitor and use regulatory processes. As such, the bar should continue to monitor developments in areas like alternative service providers and lead generators and should take action on behalf of membership as appropriate, the report says.

The newcomers to the marketplace need to be held to the same standards as attorneys and regulatory agencies need to be brought on board and give consumers avenues for recourse if they are not well served, Moran says. "If [providers are] out of state, they're very expensive to sue," he says. "Attorneys have [to face] the ARDC [if they provide poor service]. There's a need to educate the public as to their rights to be protected, and the methods through which they can seek remediation should these protections not hold out."

Practicing law without a license used to be easy to spot, Coady says. "Now that we've got these fuzzy legal services like LegalZoom or Avvo, it's harder," he says. "We've got to remain vigilant. This is in the public interest. Yes, it's in the association's and the legal profession's interest, but everything we're suggesting is in the public's interest."

Support judicial efficiency. The task force recommends that the bar continue to support an independent judiciary and fully funded courts, the use of remote technology for routine matters to save time for lawyers and litigants, the use of e-filing in civil cases, the availability and use of standardized forms, the use of courthouse facilitators or information kiosks, and the establishment of specialty courts for less complex matters.

"We can't dig in our heels and say, 'If you're going to stand next to me, and you're not a lawyer, you have to act like a lawyer,'" Moran says. "We need kiosks and facilitators so they know how to prepare forms timely and accurately. We need to implement changes that allow attorneys to start to reduce costs."

Some courthouse inefficiency is due to the nature of due process and is "entirely appropriate," Marquardt says. "But some of that has to do with the underfunding of the courts. Clearly there are some people who are staying away from lawyers because the idea of getting enmeshed in the court system is not attractive. The efficiency of the overall legal economy depends on not only lawyers but the courts as well."

The courts need to balance efficiency and access to justice for all, Coady says, and he would like to see an easily accessible directory of attorneys as well as standardized forms to help the self-represented. And Coady likes the "lawyer in the lobby" concept. "These are lawyers who volunteer in a courthouse to provide limited consultations on legal tactics," he says.

Recognize and support ongoing adaptation. Given that the task force report is necessarily a snapshot of where the issues stand in 2016, the task force members recommended the establishment of an ISBA Standing Committee on the Future of Legal Services that will continue to monitor developments, survey members, and undertake activities stemming from the report's recommendations and future developments that may arise.

"This means 'stop being such an old stodge,' and I take it to heart. It is hard to change," Robinson says, regarding technology and other issues. "It's a real challenge to those of us with 30-plus years in the profession. It's hard, but it's critical to our profession if we're going to be poised to serve the future."

Moran sees "limitless potential" for that standing committee to address issues and bring in different points of view going into the future. "We've done it with our group in terms of geography, in terms of years of service," he says. "So much more can be added to that equation, to address professionalism and to help promote and protect the businesses of our members."

Marquardt sees the ISBA continuing to play a role in scouting changes in the marketplace and communicating those to members. "Individual members of the ISBA will make their own decisions about how to change or not change their own practices, and that's appropriate," he says. "But people don't have time to run their practices, and spend time with their families, and stay up every night reading Wired and the legal journals. The bar association can be an interpreter and share information about threats and opportunities."

Ed Finkel is an Evanston-based freelance writer.
edfinkel@earthlink.net