The Medium Is the Message
In “Legal Practice and Legal Delivery: An Important Distinction”, Mark Cohen argues that technology has transformed the delivery of legal services but not the practice of law. He defines delivery as “how services are rendered” and practice as “what lawyers do and how they do it”.
The delivery of legal services is a play with many actors…The days of law firms having a stranglehold over legal delivery have given way to the rise of in-house lawyers and departments, legal service companies, and technology companies “productizing” tasks that were once delivered as services. Again, it is not legal practice that is changing but the structure from which those services are being delivered.
Although I agree with Cohen’s argument that technology is changing how legal services are provided, I disagree with Cohen’s assertion that the practice of law remains the same. The structure in which services are rendered shape the very service itself. The practice of law is the provision of legal services.
In Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213, Justice Myers states that:
The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.
Delivery cannot be divorced from practice. The medium is the message!
Why is technology changing the practice of law?
At its core, the law is information-based. And lawyers are in the middle of an information revolution. Technology is changing how much law we have, how complex it is, how regularly it changes, and who is able to advise on it. This is causing the work of lawyers to change. As we transition from a print-based industrial society to an Internet-based information society, “the future of legal services belongs to those with the ability to think creatively”. (Richard Susskind, Tomorrow’s Lawyers)
Why does it matter that the delivery of legal services is the practice of law?
As new technology companies introduce new legal “products”, they will adopt the arguments of Uber. They will argue that they are a technology company delivering a product and not a company practicing law. This argument must be revealed for what it is. A weak technical argument made to avoid liability for the unauthorized practice of law.
Instead of forcing these new companies to operate outside the law, we should begin regulating them. Their ascent into the world of legal services has just begun.
The method should be a message of innovation. Electronic technology has changed the tools, but not the methods of doing the work to produce legal services. In particular, legal advice services, which are the cause of the unaffordable legal services problem, have not changed in their methods of doing the work. That problem would not exist if there had been a transition from the “handcraftsman’s” method of providing legal advice services to a support services method. For example, no doctor’s office delivers all treatments and all remedies to all patients, the way a lawyer’s office does for all clients.
Lawyers don’t rely upon highly specialized, scaled-up volume outside support services the way car manufacturers rely on a highly specialized parts industry. By way of such “support services innovation,” the whole of the medical infrastructure is composed of mutually interdependent support services. To deliver all treatments and remedies, that whole medical infrastructure is used. The legal profession has no counterpart, no history of innovation of such methods of production, and no evolution in law society management. All 3 are much older than Osgoode Hall (born, 1832), in Toronto, where the Law Society of Upper Canada is fixed. As a result, the legal profession has remained as a sophisticated cottage industry. Therefore the victims of the problem continue to grow in number. That is the message.
See: (1) “Access to Justice: A Critique of the Federation of Law Societies of Canada’s Inventory of Access to Legal Services Initiatives of the Law Societies of Canada.” (pdf)
At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2439526 ; and
(2) “A2J: “Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem.” (pdf)
At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2647948 .
Heather,
While I generally agree with your piece (in particular your choice to build it around a Mark Cohen article – I read everything that guy writes!), I trip up on your concluding point:
“As new technology companies introduce new legal “products”, they will adopt the arguments of Uber. They will argue that they are a technology company delivering a product and not a company practicing law. This argument must be revealed for what it is. A weak technical argument made to avoid liability for the unauthorized practice of law.
Instead of forcing these new companies to operate outside the law, we should begin regulating them. Their ascent into the world of legal services has just begun.”
Starting from the perspective of how statutes and courts have described what constitutes providing legal services, it’s hard not to conclude that many of the “products” being developed provide functionality and benefits that brings them within the scope of the definition. And yes, a regulator mandated to protect the public interest should look past technical distinctions to identify what is being provided by and to whom in determining whether the provider is doing something that properly attracts the regulator’s oversight and necessitates its engagement. (I’ll save for another day any discussion of whether the regulator’s statutory mandate and its powers are correct and whether an overhaul is necessary.)
But what if you start from a different perspective?
Dig deep into the range of products and services supplied by Westlaw and LexisNexis and you will find that many of the new players are in fact developing and offering capabilities already baked in to the offerings from the market leaders. To pick just one example, Westlaw Canada has a legal memoranda service that it promotes as follows: “Our expertly drafted legal memos have your legal issues already researched and addressed”. I haven’t noticed much of a groundswell of angst over the question of whether Westlaw is offering a legal service. I don’t think there should be and I don’t want to get hung up in this or any other specific example. I’m just trying to illustrate that we are already surrounded by products that could be put into the same category as many of the latest and greatest innovations found in the hottest new legal tech startups.
Countless longstanding commercial products, legal information and resource clinics, form filling and self-help websites operate within the same shadow of potential categorization as “legal services” under existing definitions. If we used these, and not the statutory definitions, as the starting point for evaluation of the next product, we might not get as worked up. Maybe the problem to be addressed is not, in fact, whether new products are delivering legal services but whether existing definitions are overly and unnecessarily broad?
One quick tangent as I close. There’s a growing message that accompanies most discussions about the explosion of legal tech innovations that lawyers should adopt, rather than fear the innovations. We are told to incorporate the new tools, products and (yes) services, to become more efficient and more focused on the higher-level thinking and higher-value services that makes us special and justifies our higher prices. I can’t argue with that message, but it does make one wonder whether we are implicitly saying these innovations are only unauthorized practice of law if provided directly to the public, but if provided to a lawyer it’s all good?
A quick skim of the rules across a few jurisdictions doesn’t turn up any indication of legal services definitions turning on the question of the professional standing of the customer. I’m very curious whether there has been any discussion on this point. Maybe I’m alone in thinking this, but it strikes me as relevant.
[p.s. Keep those blog posts coming! I’m enjoying your insights and observations.]
Re Colin’s comments: I presume the reasons it would make a difference who uses the new technology – lawyer or ‘client’ – are first, that if the lawyer uses it, there is an intervening trained professional mind to evaluate how the client’s interests are affected by it in more than a mechanical way, and second, that there is a provider of service who is subject to professional regulation and sanctions if the services are badly inappropriate (to say nothing of unethical.)
It’s similar to the situation of law clerks and paralegals, who are allowed everywhere if they are working for lawyers but only in Ontario if they are providing services directly to the public. In Ontario, the independent ones are regulated by the Law Society, as are lawyers.
I would also suggest to Ken that the widespread use of paralegals (and other assistants with professional capacities) is one way the practice of law has changed since Osgoode Hall was built. But my main concern with Ken’s statements is to know whether it is really the cost of “legal advice services” that makes lawyers unaffordable for so many people. Is that the key element of high fees?
I’m delighted that my article has spawned such thoughtful, spirited discussion.
Heather, lawyers have to get over the notion that: (1) what they do is bespoke or “special” because not much of it is; (2) that all business challenges are “legal ones”; (3) that they will make the kind of money they once did (except for the truly exceptional ones who do high-value work)-if you don’t believe me look at doctors; (4) that for more routine work, the Uber train has left the station; and (5) that CLIENTS, not lawyers, should drive the discussion.
Colin, I too read everything that Mark Cohen writes. Seriously, I appreciate the kind words and thank you all for the conversation.
John,
I have some difficulty with the idea of looking to the user to define the character of the service as it seems to require treating all people, tools and services as raw materials. It’s easy to accept that a law clerk is a raw input to the lawyer/firm’s service, harder to accept that a service with customers both in and outside law firms is potentially problematic when sold to the public but not when sold to lawyers.
Schrodinger’s LegalZoom?
Colin, I was responding to your comment that you could not understand why in principle a technology might be OK when used by a lawyer and not OK when used by the public. I suggested two reasons why at least regulators of lawyers, but maybe governments too, might think that.
However, it is certainly not all technology that promotes understanding of the law or the resolution of legal problems that would justify such a conclusion. It’s a matter of judgment, and understanding how the technology works – and no doubt also of evolution of attitudes.
And it is possible that regulators may end up just standing and watching as clients use such technology anyway – after all, the law societies are not going to prosecute the users of research services or form completion software for unauthorized practice, and the providers of the services may be able to resist prosecution too.
I recall when I was in law school, long ago, that a number of lawyers objected strongly to the Self-Counsel Press’s publications on doing one’s own will etc. They had to swallow it, though, over time.
Some US states have found Internet providers of legal forms to be engaged in the unauthorized practice of law in the state, though located outside it and only accessible in it. I expect that kind of ruling is doomed in the short to medium term, but it’s not dead yet.
I was interested in Mark Cohen’s comment that we should consider the example of doctors, if we think that lawyers will all be able to maintain their incomes. So far as I know, doctors in Ontario – and elsewhere in Canada? – have maintained their incomes very nicely, and I am not aware of any technology that threatens them on this. Provincial governments looking to cut health costs may threaten them by restricting fee increases or by increasing the legal rights of non-physician health-care people like nurse-practitioners, nurses and pharmacists, to do things that used to be reserved to the docs. That’s a different story from technology affecting lawyers.
John, it is legal advice services that cause the A2J problem of unaffordable legal services, not routine legal services. Bradley Wright’s comment of Oct. 16th to my post of Oct. 15th provides corroboration. That post is entitled: “Unaffordable Legal Services Is a Federal Election Issue: A Message to the Candidates.” That’s why the ABS advocates feature automating routine legal services—there’s quick and easy money to be made. (But because legal advice cannot be automated, ABSs can’t solve the A2J problem; and the profession can provide the automation without ABS investors, and get it at a far better price by way of a single bargaining agent for all lawyers—bargaining with the software companies.) Legal advice cannot be automated. That distinction will remain. But some of what is legal advice today, will be automated routine legal services “tomorrow,” and new categories of legal advice will replace them. There will always be legal advice that cannot be automated. Therefore lawyers will never be replaced by devices or systems of any kind.
And to help the giving of legal advice be affordable, the technology of a specialized legal research service, such as LAO LAW, can produce legal opinions far more cost-efficiently than can any law office. That is because all of its factors of production are very highly specialized and its production highly scaled-up. But such specialization does not involve automation. By its ninth year of operation (1988), LAO LAW was producing more than 5,000 legal opinions per year for Ontario lawyers who service legal aid cases. No law office has the necessary degree of specialization, nor can it match the resulting economies of scale: “nothing lowers costs as effectively as scaling-up.” But funding cuts to Legal Aid Ontario have substantially cut LAO LAW’s capacity. However, CanLII, providing a similar legal opinion service at cost to all lawyers and judges, could have a significant impact upon the unaffordable legal services problem. See: (1) “Access to Justice—Canada’s Unaffordable Legal Services—CanLII as the Necessary Support Service” (pdf); at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365818 ; and,
(2) “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem.” (pdf)
At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2647948 .
Ken,
If I’m missing or misstating something in your summary of the issues and solutions, please point it out.
How is it that you choose to argue against ABS while simultaneously proposing a solution that is an ABS?
You argue as follows:
“…it is legal advice services that cause the A2J problem of unaffordable legal services…”
“That’s why the ABS advocates feature automating routine legal services…”
“…some of what is legal advice today, will be automated routine legal services “tomorrow,” and new categories of legal advice will replace them”
“…to help the giving of legal advice be affordable, the technology of a specialized legal research service, such as LAO LAW, can produce legal opinions far more cost-efficiently than can any law office.”
“…No law office has the necessary degree of specialization, nor can it match the resulting economies of scale: ‘nothing lowers costs as effectively as scaling-up.’ ”
“… CanLII, providing a similar legal opinion service at cost to all lawyers and judges, could have a significant impact upon the unaffordable legal services problem.”
In sum, you argue that legal advice service could be affordable if a specialized organization provided that service to lawyers and it would be beneficial if an organization like LAO LAW or CanLII assumed such a mandate.
At present, neither LAO LAW nor CanLII are owned by lawyers.
Wouldn’t you need an ABS regime to permit your proposal to work?
If so, is there a meaningful distinction between for-profit and not-for-profit delivery of the service you describe such that you could justify only cracking the ABS door open a little to permit quasi-public sector operators to deliver legal advice services?
Finally, as the benefits of economies of scale do not automatically support a conclusion that legal advice service delivery is a natural monopoly, why open the ABS door for only one provider? We used to believe that local telephone service was a natural monopoly as it was inconceivable that more than one provider could operate at minimum efficient scale. Why would we make the same assumption for legal advice delivery services offered through ABS providers?
Ken, I’m not trying to twist your post into something it is not, and I don’t discount the possibility that I’m missing something obvious that undermines my own interpretation. But try as a I might, I just can’t read your core argument in this and the other posts and papers you’ve offered on Slaw as anything other than support for ABS.
Colin