Updated: Aug 15, 2020
A recent New York Times Opinion piece, “Everyone Needs Legal Help. That Doesn’t Mean Everyone Needs a Lawyer” spotlights Rebecca Sandefur, a sociologist whose career has focused on studying lawyers. The “genius” MacArthur fellowship she received for her work is evidence that one need not have a law license to opine meaningfully about the legal profession/industry.
Ms. Sandefur published an article making the case that lawyers are not required to resolve many common legal issues. She turns the “access to justice crisis” on its head, asserting that it is not a matter of unmet legal need but the byproduct of a complex, inward-looking web of rules lawyers have created. Sandefur contends:
"The access-to-justice crisis is bigger than law and lawyers. It is a crisis of exclusion and inequality. Today, access to justice is restricted: only some people, and only some kinds of justice problems, receive lawful resolution. Access is also systematically unequal….
Traditionally, lawyers and judges call this a “crisis of unmet legal need.” It is not. Justice is about just resolution, not legal services. Resolving justice problems lawfully does not always require lawyers’ assistance, as a growing body of evidence shows. Because the problem is unresolved justice issues, there is a wider range of options. Solutions to the access-to-justice crisis require a new understanding of the problem. It must guide a quest for just resolutions shaped by lawyers working with problem-solvers in other disciplines and with other members of the American public whom the justice system is meant to serve."
Sandefur is acutely aware of and unencumbered by the legal profession’s cultural biases—a self-selecting, self-perpetuating guildthat is insular, homogeneous, protectionist, and monopolistic. Lawyers have long determined what is “legal” and have created language, rules, regulatory schemes, and economic models designed to reinforce the myth of legal exceptionalism. Sandefur lays out the record of that culture—an unequal, exclusionary justice system that yields widespread unresolved justice issues, an erosion of the rule of law, and the false impression that only lawyers can solve these problems. Her focus is addressing the problem, not reconfiguring the traditional legal delivery paradigm to achieve incrementally better results. Is her proposal too radical? There is growing evidence that the marketplace is receptive to Ms. Sandefur’s call for a paradigm shift, and consumers are increasingly indifferent to stiff resistance from the legal profession.
Sandefur contends that the answer to resolving justice problems requires lawyers to collaborate with other disciplines, use new tools-notably technology, and create new paradigms focused on achieving better client/societal results. To date, the focus has been on preserving the traditional partnership model and elevating profit-per-partner. As Ms. Sandefur says, the problem is “bigger than law and lawyers.” Most lawyers continue to resist ‘non-lawyer’ efforts to infringe upon what they regard as their professional territorial imperative and economic model. In the age of the consumer, lawyer hubris and self-regulation might slow, but not reverse, the paradigmatic shift already underway in the emerging global legal industry.
Law Is Not Solely About Lawyers Anymore
Law is not solely about lawyers anymore. This is equally true in the retail (individuals/small and mid-sized businesses) and corporate market segments. Certainly, the two segments are different in several respects—buyer sophistication, familiarity with the legal system and lawyers, financial resources, etc.. As Derek Bok famously observed, “There is far too much law for those who can afford it and far too little for those who cannot.'' But there are also elements of convergence linking retail and corporate legal buyers and the providers they are migrating to. Both market segments have been receptive to new customer -centric models where lawyers are one of an expanding pool of resources—human and technological—to solve client challenges. Lawyers work with process and project management experts, technologists, data analysts, and a slew of other professionals and paraprofessionals.
Several new-model legal service providers in the retail and corporate sectors have replaced law’s brute force, labor intensive lawyer-does-all model with data-driven, customer-centric, automated, corporatized, scalable, collaborative, multi-disciplinary, and well capitalized service models. These providers are often managed by business professionals and entrepreneurs, not licensed attorneys. The new providers in each market segment, albeit in different ways, are focused on meeting consumer challenges, not preserving anachronistic lawyer delivery paradigms.
A Few Examples From the Retail Segment
LegalZoom (LZ) provides “just resolutions” to millions of individuals and SME’s and enjoys a net promoter score (NPS) significantly higher than white shoe corporate firms. The company has replaced the binary lawyer engagement process--retain counsel, or go without representation-- with a range of options. Different degrees of “lawyer touch” are offered. They include self-serve documents (created and updated by licensed attorneys), subscriptions for phone and/or electronic consultations with attorneys, and access to a referral network that may lead to attorney-client engagements. Lawyers no longer dictate the terms of engagement; clients have choice, price predictability, and easy access to legal services that do not necessarily involve full-blown lawyer engagement.
A proliferation of legal products—once delivered by lawyers as “bespoke" services-- are now available online. Lawyers are involved in their development, but customers no longer must engage counsel on an individualized basis for solutions to common problems. Process and automation are expanding access, reducing cost, and leveraging legal expertise. Hello Divorce, a California-based law company designed to reduce the cost and anxiety of divorce, is another "lawyer-lite" provider. The company provides self-help documents and access to attorneys online or by phone. The service is faster, more cost-effective, and predictable than retaining an attorney in “routine” divorces. LegalZoom, Hello Divorce, and a growing number of legal providers like them provide “just resolutions” that may or may not directly involve lawyers.
Joshua Browder, a Stanford computer science undergrad and entrepreneur, has provided assistance to hundreds of thousands of consumers, initially with his DoNotPay chatbot designed to contest parking tickets. Browder recently launched Legal Robot designed, in his words, to “replace "25,000 exploitative lawyers" with robots that can respond to questions with appropriate human emotions powered by artificial intelligence. Robot Lisa, the “offspring” of UK-based lawyer/entrepreneur Chrissie Lightfoot, is “the world’s first impartial robot lawyer.” Lisa levels the playing field, helping lay people to understand key legal and commercial principles, draft basic, legally enforceable documents, and determine whether legal parameters have been complied with. Lisa is in many ways the technological embodiment of Ms. Sandefur’s drive to achieve “just resolutions” without lawyers.
The Changing Corporate Landscape
Corporate legal buyers are increasingly asking, “Who is doing what and who should be doing it? They are—or should be-- questioning whether, when, from what delivery model, with what other resources—human or machine—and at what cost lawyers are needed. Disaggregation of “legal” tasks has morphed from labor arbitrage to a seismic shift in how lawyers function and what skills, value, and cost legal buyers expect them to provide. This has produced migration of work from law firms to “alternative legal service providers” (ALSP’s),in-house legal departments, and other law-firm alternatives. These providers deploy lawyers differently than partnership-model law firms do. Firms solve legal problems. The new providers solve business challenges that raise legal issues. They rely on technology, process and process management, capital, and scalable, efficient, transparent, multidisciplinary teams to leverage legal expertise and to use it only when it is required.
“Legal problems” have become “business challenges that raise legal issues.” The complexity, speed, and new risk factors impacting business—together with the impact of the global financial crisis, technological advances, and globalization—have changed the legal buy/sell dynamic. Law is undergoing a gradual, systemic transition from a labor-intensive, provincial-by-design, lawyer-centric “practice” model to a tech and process-enabled, capitalized, global, scalable, efficient, multidisciplinary delivery model aligned with consumer needs and expectations. Lawyers are an integral element of that process, but they are not always “the straw that stirs the drink.” That’s because managing the delivery of legal delivery requires skills that relatively few lawyers presently have—notably business and technological.
Clients—not lawyers--now determine what resources and expertise is required to solve problems. They are not concerned with the nomenclature of the provider source(s)—in-house, law firm, law company, professional services firm. They are increasingly focused on required expertise, breadth and depth of talent, track record, technological compatibility/security, and an ability to scale. They expect providers to use data and other predictive tools not only to manage risk but also to be proactive in detecting it early and to diffuse it.
Law has become multidisciplinary; it is not solely about lawyers. The Big Four, for example, are leveraging their brands, deep C-Suite ties, range of professional services expertise, technology, and deep war chests to make increasing inroads into the "legal" space. The boundaries between law and other disciplines are blurred. Even within the "legal" space, there is growing recognition that "practice" (what the Brits call regulated activities reserved for licensed attorneys) requires different skillsets than the business of delivering legal services.
Law has forged an uneasy relationship with technology and has only begun to tap into its potential as a prophylactic, predictive, collaborative, and consumer-aligning tool. Legal delivery is no longer about high-priced firm lawyers billing countless hours to solve legal challenges. It’s about integrating necessary expertise and leveraging it with appropriate resources—technological and “right-sourced” human ones—to solve personal and business challenges efficiently, cost-effectively, holistically, and measurably.
Law can and will achieve broader success meeting consumer and societal challenges. The willingness of lawyers to become team players; to learn new skills; to collaborate with other professionals, paraprofessionals, and machines; and to be creative in forging “just resolutions” to scale will determine their significance and standing as problem solvers.
About Mark A. Cohen