Last month, I attended the American Bar Association meeting in San Francisco. This meant lots of great food, a remarkable visit to Alcatraz with Rebecca Rhoda Fisher (one of two national winners of the ABA Rule of Law Initiative’s Pro Bono Champion Award), and the exciting chance to exchange ideas with bar leaders from across the country. It also meant attending a number of impressive plenary sessions. One focused on the legal community in the 21st Century and the challenges posed by alternative legal service models. The message was sobering. Lawyers’ monopoly on the practice of law is in the early stages of disruption.
Clayton Christensen coined the phrase “disruptive innovation” to describe how innovation transforms existing markets or sectors of the economy and completely redefines the industry. Household names such as Apple, Facebook, and Amazon are examples of disruptive innovation. Disruptive innovations are not changes in technology that make products better. They are changes that make existing products and services more accessible or affordable, and therefore available to the larger population. Such innovations typically begin under the radar, in a niche market that fails to attract the attention or concern of industry incumbents. Growth is slow and relatively flat until market penetration reaches the tipping point. Then, market penetration moves into hyper-growth until there is saturation. This entire process is described by the S-curve model, a nonlinear model. The steep side of the S-curve represents the crushing wave of change in the market.
Customized and Standardized Services
The touchstone of our current legal services model is customization. We serve clients on a case-by-case basis and develop strategies and services for them. Customized services tend to be expensive and, in fact, large segments of the population are not receiving the legal services they need, including the poor, the near poor, and the middle class. While our legal aid clinics in Minnesota serve a great number of people in need, they turn away two people for every one served. Many of our existing legal services programs are capped at incomes that miss a great deal of those in need. As a result of this “justice gap,” individuals have no choice but to represent themselves.
The disruptive innovators in our market, such as LegalZoom and Rocket Lawyer, initially targeted non-consumers of legal services—those for whom legal services were too expensive and out of reach. They entered the market under the radar, using nonlawyers and technological innovations to deliver do-it-yourself legal services on a mass scale. The services they offer are standardized and affordable. At the same time, technological innovations have boosted our productivity and contracted the market for the performance of basic legal services by lawyers—like filling out legal forms, reviewing documents, and conducting basic research, which can be outsourced or done by computers. Some industry experts maintain that these changes (1) demonstrate that the traditional work of lawyers can be unbundled and that lawyers are not needed to perform all of it and (2) undermine the rationale for licensing regulations that maintain lawyers’ monopoly on the provision of legal services. Our central challenge is to define our services—indeed, the nature and scope of our profession—in the midst of market upheaval. We must explain to the public why they need lawyers, and what we do they cannot do for themselves or through standardized services. If we wait too long to do this, the market will define us and our options. We must be proactive.
To address the justice gap, Minnesota has provided some limited unbundled services through state court self-help centers and domestic abuse advocates (non-lawyers) for Order For Protection proceedings. Minnesota Legal Advice Online (MLAO) provides limited legal advice through pro bono attorneys. Call for Justice gives enhanced legal referrals to existing service providers. Mitchell Hamline’s Collaborative Community Law Initiative will begin offering low bono services this year.
In June 2015, the MSBA’s Task Force on the Future of Legal Education recommended that the MSBA study the viability of certifying limited license legal technicians (LLLTs) with the authority to provide supervised legal services in defined practice areas. The MSBA Assembly adopted the recommendation. The Alternative Legal Models Task Force was charged with “examin[ing] the advisability of supplementing traditional lawyer representation… The Task Force will develop a recommendation to the Assembly regarding viable options to increase access to justice, necessary safeguards to assure quality of service, relationship to the legal profession, whether to pursue LLLT certification or something similar in Minnesota, and the parameters of such certification, if recommended.”
The task force is drafting preliminary proposals for comment this fall. It will be traveling around the state to solicit your input and feedback. I hope that you will review the preliminary proposals when they are released. We need your expertise and wisdom as we evaluate how to close the justice gap and respond to current and future market dynamics regarding the delivery of legal services in Minnesota. On September 16 at 10 a.m., Frederic S. Ury, chair of the ABA’s Standing Committee On Professionalism, will be addressing the MSBA Assembly regarding current legal services market trends and how lawyers can best respond. Please join us in person or remotely for this important presentation.
ROBIN M. WOLPERT is a legal strategist, litigator, and appellate lawyer at Sapientia Law Group, where she focuses her practice on complex business litigation, data privacy, constitutional law, and political law compliance. Robin represents clients in litigation involving private parties or the government, parallel civil and criminal proceedings, civil and criminal appeals, and investigations.