SOFTWARE_EATS_

Marc Andreessen quipped in 2011: “Software is eating the world”.

We are already seeing how Andreesen’s prediction is working its way through the legal profession.

Predictive coding continues to make inroads in eDiscovery demonstrating that software analysis is more accurate and faster that hordes of associate lawyers clicking on documents on screens. Companies such as Recommind are leading the way.

Last week I attended  Conference at Georgetown Law School, co-sponsored by the ABA Journal, called: From Revolution to Evolution: Digital Tools in Legal Practice where a variety of new legal applications were discussed that replace the labor of an attorney.  In the hands of an attorney , this software results in faster, cheaper, and better legal work.

One panel, that I was honored to participate in featured Kingsley Martin from KMStandards and Noah Waisberg from KiraSystems formerly DiligenceEngine. Both demonstrated software applications that expedited the document review process in transactional work and rationalized the document creation process. Like predictive coding in eDiscovery these software tools will replace some of the work of associate lawyers in larger law firms leading to a smaller employment force that works more effectively. As Mr. Martin points out — legal software can be good, and lawyers can be good, but lawyers using legal software are best.

The day before this conference,  Georgetown Law School, under the leadership of Tanina Rostain , held their Iron Tech Lawyer competition, for the third year in a row.  Law students show case legal expert systems that have created using the NeotaLogic legal expert systems platform .This student work is impressive as I witnessed software applications generating legal advice to complex questions with more accuracy that your average lawyer and at the speed of light.

We are still at the beginning of the beginning of these developments, but the pace of change is likely to be more rapid than we think. If you want to become more aware of an impending tsunami of legal disruption read John O. McGinnis and  Russell G. Pearces’ law review article in Fordham Law Review, titled, The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services

On the other end of the legal spectrum from Big Law, there is an estimated $40 billion latent market for consumer legal services yet to be served by lawyers. In 2013, two-thirds (66%) of a random sample of adults in a middle-sized American city reported experiencing at least one of 12 categories of civil justice situations in the previous 18 months. The most commonly reported kinds of situations involved bread and butter issues with far-reaching impacts: problems with employment, money (finances, government benefits, and debts), insurance, and housing.  Most consumers handle these problems on their own, or do nothing.  Moderate income people rarely seek assistance from lawyers to deal with these legal problems. Either legal fees are too high or they do not understand their problems to be legal.  80% of the U.S. consuming public can’t afford legal fees.  This is the often discussed Justice Gap in America that is the subject of an ABA Presidential Commission on the Future of Legal Services and a National Summit on Innovation in Legal Services to be held at Stanford Law School next week on May 2-4, 2015. [See Agenda and Schedule Here. ]

Figuring out ways to have more lawyers serve this latent market at affordable prices has proved to be a challenge. My own view is that scalable solutions must be software solutions. There is ample evidence that software alone can solve the legal problems of everyday consumers. Last year 600,000 users assemble legal documents and resolved their problems without lawyer assistance in over 40 states with the support of the U.S. Legal Services Corporation through Law Help Interactive and legal services programs in those states. This number will continue to increase. Other private legal software companies, such as ShakeLaw, continue to enter the market that offer pure software solutions to the resolution of legal problems at low or no cost.

I often hear lawyers say these solutions are inferior. Last week I also attended in Chicago, an American Bar Association School on UPL and participated in a panel on UPL and new technology. I argued that since the legal profession wasn’t serving 80% of consumers anyway so we should continue to experiment with legal software solutions. There was push back from this group, with some participants arguing that automated legal advice could be the unauthorized practice of law. I argued that in the interest of access to justice we should have a safe harbor that encourages legal software development for consumers, if there were sufficient warnings to the consumer they were not dealing with a lawyer, but a software application.

One state, Texas, has famously passed such an exception to their definition of the practice of law which reads:

In this chapter, the “practice of law” does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.’

I pitched to this group of UPL officials the idea I would like to see this exception to the definition of the practice of adopted in every state. My rationale is that it would remove a potential barrier to innovation and encourage the development of Internet-based software applications that could help close the Justice Gap. The response was underwhelming.

ibm_watsonDespite these constraints, legal software will continue to eat away at the lawyer’s market share. Where there is demand, entrepreneurs will find a way.  IBM’s Watson has demonstrated that it could beat the two world Jeopardy champions- not a trivial matter.

 

jeopardy_2

More relevant a team of law students at the University of Toronto students has created ROSS on the Watson platform to conduct legal research.  ROSS is not only for lawyers. It can be used by consumers to do their own legal research.

Lawyers who deny the power of these software applications to solve legal problems, and the exponential rate of change, have their heads in the sand,

heads

 

Just Answer is a question and answer platform that provides answers to users questions for a flat fee of approximately $30.00 per question. It turns out that one of the fastest growing categories within JustAnswer is the answering of legal questions by lawyers.  

Here are other the JustAnswer terms and conditions that apply to lawyers that participate in this service:

"Experts in the Legal categories must be attorneys licensed to practice law, and be
in good standing in at least one jurisdiction in the United States or foreign
country. Such Experts shall provide general information only, such as providing
descriptions of general principles of law, and shall not provide legal advice. In
responding to questions, Experts in the Legal Category shall not apply their legal knowledge or skills to resolve or advise on the Customer’s specific factual circumstances described in the question, such as by proposing a specific course of action (other than advising the User to seek the advice of an attorney licensed to practice in the relevant jurisdiction). Experts in the Legal Category shall not form an attorney-client relationship on the Site."

To be qualified to answer questions as a lawyer within the JustAnswer platform, the lawyer has to take a test in the practice area and meet other qualification standards.

Disclosure: I answer legal questions on the JustAnswer.com website in my capacity as an attorney and a member of the Maryland Bar.

The Website is very well executed. Users can select from a panel of lawyers that are online at the time that the question is asked. You can name your price – indicate what you are willing to pay for an answer. You can see the credentials of the lawyers and their track record in answering questions, communications are secure and confidential, and the user can indicate the urgency of the answer, and the level of detail required. Answers are 100% guaranteed. If you are not satisfied you get your money back. You can select the State that you are located in, so answers can be state specific. Most questions are answered within minutes.

I have yet to see a state bar association offer such a service with the same level of Website sophistication and quality control.

 

Continue Reading Does JustAnswer.com Provide Legal Advice Online? Is this Site Ethically Compliant?

LawPIvotLawPivot, is a Silicon Valley legal industry start-up,  a new breed of online legal advice Web site that provides legal answers through a network of attorneys. Sometimes the legal advice or legal information is free like AVVO and LAWQA,  and sometimes you pay a fee, which LawPivot and JustAnswer require. See more:  American Bar Association Journal article on LawPivot.

I had a technical, corporate legal question that I needed a quick answer to, so I decided to try LawPivot’s Confidential Question and Answer Service, pay their fee, and see how well it worked. I knew that LawPivot has a pretty extensive panel of corporate lawyers, so I thought this would be a good starting place. Because my question involved a technical question, I think  if I had asked our regular outside counsel I probably would have generated a $450.00 legal fee and a long memo — which I really didn’t need at this point.

Instead for  $49.00, I received within 24 hours 8 answers from as many lawyers.  Of the 8 answers I received, I marked 5 as not helpful for my purposes. But 3 were very much on target, and one answer was exactly what I was looking for.

This service is "Confidential", but no attorney/client relationship is created, and the answers are supposed to be "legal information" rather than "legal advice",  The reality is that what I received was pretty good legal advice that applied to the particular facts of my situation.

Overall the site was very easy to use and I was very satisfied with the result. I think that even if I were not an attorney with experience in corporate law, I would have been able to recognize which answer to my question was the correct one. I am not sure that this would always be the case, so my conclusion is that this kind of online service for the average user is a starting point for more research, not an end point. The service helps you make a decision whether you need to retain an attorney for additional assistance. This is a good example of the use of the Internet to deliver "unbundled" legal services at an affordable fee.

The Ethical Issues

LawPivot makes clear that they do not share any fees with an attorney. The site also makes clear that it is not a legal referral service and that it does not promote any particular attorney. LawPivot properly avoids making claims about the lawyers in their network such as they are "the best", highly specialized in their fields", or the most experienced lawyers in their specialty.

Apparently, lawyers are ranked by an algorithm  on how well and promptly they answer questions. Whether this technology violates traditional legal referral rules, which prohibits profit-making organizations to be in the legal referral business, is the subject of a future blog post. 

Is LawPivot, as a non-law firm, permitted to charge a fee for legal advice? Is this the unauthorized practice if law? Not if the fee is paid by the user for the use of the Web site, and not for the legal answer or legal advice itself. There is a bar association opinion that holds that a Web site may charge a user for the user of the Website, when purchasing a legal service, and that this fee is not a fee for the legal service itself. See for example, Nassau County OK’s Tie with Americounsel.

In the AmeriCounsel scheme, which dates back to 2000, the Nassau County Bar concluded that:

"[S[ince AmeriCounsel does not charge attorneys any fee and since AmeriCounsel does not "recommend" or "promote" the use  of any particular lawyer’s services, it does not fall within the purview of DR 2-103(B) or (D). Rather, AmeriCounsel is a form of group advertising permitted by the Cod of Professional Responsibility, and by ethics opinions interpreting the Code."

I think this opinion is still good law.

However, LawPivot has been forced to create a business model, based on a work-around of a Rule of Professional Conduct that no longer serves any useful purpose.

In my opinion,  a regulatory scheme that enables private companies to take a share of the legal fee for referring client work to law firms would have a positive benefit.  It would result in providing more resources to the Web provider so that it could develop more nuanced quality control systems, more extensive marketing programs,and invest in innovative client referral systems. The prohibition on splitting fees between non-law firms and law firms doesn’t serve the purpose for which the rule was originally designed — to discourage "ambulance-chasing."

In fact, the ABA’s Standing Committee on the Delivery of Legal Services most recently sent a letter to the ABA Ethics 20/20 Commission recommending that Rule 7 (2) (b) be eliminated. 

Model Professional Rule (7) (2) (b) states:

(b) A lawyer shall not give anything of value for the recommendation of the lawyer’s
services except that the lawyer may:
 (my emphasis).
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer
referral service. A qualified lawyer referral service is a lawyer referral service that has been
approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17;

 

Comment [5] to the Rule merely states, “Lawyers are not permitted to pay others for channeling professional work."

The Standing Committee’s letter to the Ethics 20/20 Commission states: 

"The comment provides no rationale for this conclusion, which frankly is a position swallowed by the Rule’s exceptions. Law directories have channeled legal services for well over a hundred years. Lawyer referral services have channeled work to lawyers since the mid-twentieth century. Prepaid legal services have channeled work to lawyers for nearly 50 years. Public relations and marketing have joined lawyer advertising as vehicles that channel work since the Supreme Court ruled that states could not prohibit lawyer advertisements in 1977. Law firms providing services to corporations and institutions have in-house marketing staff, some of whom are paid well into six-figures, for the purpose of channeling professional work to their firms. And most recently, we have seen a proliferation of online third-party intermediaries that in some instances defy categorization as advertisements or referral services. Intermediaries are discussed in detail below, but suffice it to say here that the channeling of professional services in the marketplace in and of itself is not inherently
inappropriate. Collectively, these mechanisms create access to legal services for potential clients of all economic strata. They are, however, most important for those of moderate or middle class individuals who infrequently use of the services of a lawyer and need the information provided by these resources to help them make the decisions about the legal services most appropriate for them. "

The Ethics 20/20 Commission gave no serious consideration to the Standing Committee’s proposal so this reform is dead for the foreseeable future — unfortunately. 

The problem with Rule (7)(2)(b) is that it has been made irrelevant by the Internet and arguably is a deterrent to innovation in devising new ways of enabling consumers to access legal services. This is a Professional Rule that chills innovation, rather than preventing consumer harm.

AmeriCounsel failed as a company because it could not generate sufficient cash flow as it was limited to charging a relatively small administrative fees for use of the Web site, as distinguished from earning larger fees that could result from channeling work to lawyer’s in their network.

I hope that LawPivot does not suffer the same fate as AmeriCounsel.