‘Future’ Report from ABA Plays it Too Safe (Perspective)

Editor’s Note: The author of this post chaired a major law firm for 15 years.

Big Law does not exist in a vacuum — although we might prefer it that way. There is a lot of discussion around the forces reshaping how Big Law delivers services. At the same time, we exist in a broader legal ecosystem of legal rights and responsibilities. Although most Big Law firms make significant contributions to the provision of legal services to the broader legal community, it is rare to look at the overall picture of the provision of legal services in this country.

The ABA Commission on the Future of Legal Services has attempted to provide that overall picture.

This month, after two years of work, the commission released its “Report on the Future of Legal Services in the United States,” a 116-page document detailing the current state of the profession and offering 12 recommendations. This is an ambitious work that adds an important voice to the ongoing conversation about changes and evolution needed in the legal profession. In particular, the Commission has produced an unflinching, honest report on many of the issues around access-to-justice, focusing attention on a system that fails, as written in the dedication, an “estimated 80 percent of the poor, and those with moderate means,” as well as a slew of “unsung lawyers … judges, public defenders, prosecutors and court personnel.”

But the Report does not simply focus on access-to-justice issues. Rather, it addresses many of the range of issues facing the entire legal profession, including Big Law — from diversity, to business model innovation, to challenges with the criminal justice system, to the lack of funding for legal services.

While the problems it identifies are hardly new, the Report’s power lies in the aggregation of facts and the overall perspective.

Like any body of research, the Report has strengths and shortcomings. As noted, the strengths are its overall perspective and the reporting and collecting of its facts. Those strengths, however, are not enough to overcome the Report’s two shortcomings:

• 1) The Report represents the very real limitations of the ABA or any other single organization to address these issues. Legal services and funding are governed by a wide variety of governments and organizations. No one entity has the ability to drive these changes.
• 2) Although they note the need for “unconventional thinking” to address these systemic issues, the Commission offers little in the way of unconventional recommendations. In fairness, they note that some might view the Report as “controversial,” while others might find it “not sufficiently bold.”

I suppose in this profession, simply issuing a report could be viewed as “controversial.” I count myself among those viewing the Commission’s recommendations as insufficiently bold.

What works

The Report has several impressive strengths, starting with the assessment of the current state of the legal profession.

The Commission initially focuses on the issues around access-to-justice. While the Report works hard not to paint a bleak picture — there are certainly a lot of people and organizations doing great work — the overall picture is depressing.

For example, the Commission notes:

• In highlighting the mismatch between the current level of funding of the Legal Services Corporation (LSC) and the needs for legal services, the Commission notes that in some jurisdictions, “more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs…”
• The Commission notes that the “majority of moderate income individuals do not receive the help they need.
• Congressional funding of the LSC declined from 2010 through 2014 despite the increase in legal needs.
• Attorneys in private practice would have to increase their pro bono efforts to more than nine hundred hours — each — to meet legal needs.

The Report continues to cover the lack of diversity in the profession, the challenges posed by the criminal justice system, and the restraints on innovation posed by the “traditional law practice business model” (including lawyers’ resistance to change).

The good news: a material portion of the Report discusses the impact of technology and process changes on the profession. In fact, 12 pages of the roughly 60-page Report are devoted to this development — one of the better summaries of the changes to our profession that I have seen.

As it relates to the impact of technology on the profession, the Commission notes that while lagging behind other industries in the utilization of technology, the industry stands at the beginning of a profound transformation in the way attorneys work and provide services. The Report further notes that, through grants from the LSC, the civil legal aid community has been a “significant leader in developing technology-based legal tools…”

In summarizing their findings, the Commission states:

“Without significant change, the profession cannot ensure that the justice system serves everyone and that the rule of law is preserved. Innovation, and even unconventional thinking, is required.”

So far, so good.

What doesn’t work

The Commission at the outset acknowledged two variables. First, the Report is a consensus document. Arriving at consensus almost automatically eliminates “unconventional thinking.” It’s no surprise, therefore, that the Report offers little in the way of unconventional recommendations.

Second, as noted above, the Commission writes that readers might find the Report “controversial… or not sufficiently bold.” Again, I am in the latter faction.

It is not that the Commission’s recommendations are bad. They certainly are not. All reflect good ideas. However, in a legal ecosystem where “unconventional thinking is required,” the Report falls short.

For instance, the Commission undertook a “robust examination of alternative business structures.” (Recommendation 2.) Yet their conclusion is merely that “continued exploration of alternative business structures will be useful.”

Similarly, after discussing the profession’s lack of diversity, (Recommendation 8) they recommend that the profession “adopt methods, policies, standards and practices to best advance diversity and inclusion,” pointing to the work of another ABA committee without offering concrete recommendations.

That lack of concrete ideas as to how to solve many of these problems is perhaps the Report’s most disappointing element. Certainly I agree that funding should increase for LSC and similar organizations (one of their recommendations). But in this political and economic environment, how is that going to happen?

The Report also makes clear that people resources are simply insufficient to close the legal services gap and that technology holds great promise to serve the consumers of legal services. The logical conclusion, therefore, is to accelerate development of technology.

Fair enough, but, if that is the conclusion, then how will it be funded? Here’s an idea: why not, for example, ask the AmLaw 200 firms to annually contribute 1% of any year-over-year growth in net income into a company devoted to the development and application of technology in this space? It is a modest investment and might produce technology applications that could be deployed in the practice of Big Law firms as well.

That, of course, is just one possible idea, but it is the sort of specific suggestion I hoped to see from a 30-person commission. Yet despite its limitations, the Report nevertheless is a noble effort to broadly address the issues raised by the current legal ecosystem. I hope it moves the needle forward. If so, it will have served a very important purpose.

For more essays from Stephen Poor (@stephen_poor) and Seyfarth on change in the legal industry, visit Rethink the Practice.