Tech and the Law: An Interview with American Bar Association President William Hubbard

When you talk about the economic impact of emerging technologies, many people think first of robots hitting the factory floor, or self-driving cars rolling onto our highways, or perhaps virtual assistants helping us search the web. But as automation and artificial intelligence begin to live up to their revolutionary promise, all sectors of the economy will feel the pressure. Some leaders are already trying to awaken their peers to the possibilities — and threats — their profession will be confronted with. William Hubbard, 2015 president of the American Bar Association, is one of them.

Hubbard points out that Wall Street and Silicon Valley have taken a sharp interest in the ability of technology companies to provide a variety of legal services, with investment in the sector spiking from $66 million in 2012 to over $1 billion last year. But while a bevy of startups may be angling to replace lawyers for certain tasks, huge swaths of Americans still have no access to legal services. Figuring out how attorneys can use technology to bridge that gap will be one of the biggest challenges the profession faces in the coming years. Hubbard helped found the ABA’s Commission on the Future of Legal Services to help lawyers figure out how how to do just that. We spoke about the opportunities he sees for attorneys to stay relevant in the coming decades — and the threats they may face.

MPRA: You’ve been working on the issue of how technology will impact the legal profession for some time now, talking to attorneys and tech people. Have any ideas or companies jumped out at you as particularly interesting?

WH: I don’t know that there’s one best idea, but I do think that some blend of using online technologies with some involvement of a lawyer at some point in the process is the better approach.

One concern I’ve had throughout this process is that we have traditional legal system, highly regulated, with rules designed to protect the public, avoid conflicts of interest, and make sure that the lawyer’s undivided loyalty is to the client. And then you have an emerging system of dispute resolution that is not regulated at all, essentially.

You have to wonder, if the dispute is at a certain level of complexity, do the parties to the online dispute resolution process understand what rights they might be giving up, by agreeing to a resolution that seems simple on the surface, but which might be more complex than it appears?

MPRA: Yes, that was one of the things I was wondering. In a normal court of law, if one party is unhappy with the court’s decision or feel it was unfair, they can appeal. How would that work, if you started off using one of these alternative dispute resolution services? Is there a way to appeal?

WH: Well, I think that’s an issue. You would have to look at each company and how they view their processes and determine whether or not, when you sign a document that says ‘this ends the dispute’ whether that document forecloses [an appeal].

You know, I think the real value [with these systems] is smaller disputes, $100, $200 — you buy a radio online or something or a guitar and it’s not what it purports to be, and you want to get your money back or get some kind of benefit for the future. I can see online dispute resolution being very valuable for that. The cost of litigating those sorts of disputes through the traditional legal system doesn’t make sense. But when you get into more complex issues, involving personal injury, breech of contract, whether or not you have mold in your house, bad sheetrock — I just don’t know that the current online dispute resolution mechanisms are applicable to those situations that are not cookie-cutter.

One approach I’m very intrigued by is a company called JustiServ. If you go to their website, you can describe your problem online, and they are developing a network of lawyers in about 20 different specialties — elder law, consumer law, family law — you describe the problem and they’ll use an algorithm to try and match you with a lawyer who has an expertise in that problem and will be willing to resolve your problem for a certain fee, a set amount of money. You can decide if you want that lawyer’s services, for that amount of money. It exposes the consumer to a broader range of options…it helps you readily identify a lawyer with the right expertise for the issue you’re looking for help for.

MPRA: That’s interesting. Do you think that part of the problem is that sometimes people don’t realize that they can afford a lawyer?

WH: I think that’s a huge issue in our country. There are empirical studies from the American Bar Foundation showing that people on the lower end of the socio-economic and education scale as a general rule don’t realize that the problems they experience are often legal problems. They get an eviction notice, and think of it as just the kind of thing that happens to people like me, it’s just my plight in life. [They] don’t realize that there are defenses to an eviction. So public education is a big issue. The lack of public understanding of our legal system and people’s rights accounts for a large part, I think, of the justice gap in our country. For why 80 percent of the people in our country don’t have access to the justice system, and why people take only about one out of four, one out of five, legal problems to a lawyer. They either do nothing or try to go it alone.

So there’s a huge unmet need — and that’s what’s been driving us to create this Commission on the Future of Legal Services. We want to close that gap using modern tools, that we use in all other parts of our lives.

MPRA: Right. So with the help of this tech making certain things more efficient, it becomes a little easier for lawyers to handle more cases, and to do so at a price point more people could afford?

WH: I’ve talked to lawyers who have [already started doing that], using new technology, new software applications. For example, I talked to a lawyer recently who has a practice in North Carolina. She used to charge $2,000 for a full estate plan — a will, power of attorney, maybe end of life documents. Through the technology, she’s now gotten that cost down to $500, and still has the same profit margin.

There’s another company called UpRight Law, and the motto of that company is “bringing law to the living room.” And they have essentially a call centre, and people with a consumer bankruptcy problem, they Skype or FaceTime with these intake counsellors, who gather all the information, synthesize it through their software program. And then they have lawyers in 49 of the 50 states, and the lawyer comes in at the end, to take the paper and pull together [the case].

The clients don’t have to come into the office, they don’t have to leave work to make an appointment with a lawyer, all of it’s gathered through Skype and FaceTime, and then the package is sent to the lawyer. And the lawyer can still charge a good rate, take the matter to court, and file the bankruptcy. And that lawyer can still make good living by having a volume of work. The client’s not being charged for the research and the assimilation of documents, those kinds of functions that can be done more cheaply.

MPRA: So the more specialized parts of the endeavor — the advice, understanding the legal implications — that’s all still in the hands of the lawyer, it’s just the document review, prep work, all the paperwork side — that’s the stuff where you see a real opportunity?

WH: That’s right. If we’re able to use entry portals, create an easy-to-use website that people can navigate, help them answer a certain set of questions [we can increase the volume of cases attorneys can handle].

MPRA: Do you think the average attorney out there in private practice, are they aware of what’s coming? Of all these new technologies and how they might change things? Or do many attorneys still think of the law as a world apart?

WH: I think the conversation is changing around the country. I think 18 months ago, the vast majority of lawyers were unaware that some of these technology companies were taking on work that traditionally went to lawyers. But I think that because of the work that the American Bar Association is doing that’s changed. We’ve combined the regulators and the judges and academics and put them on this commission, we’ve reached out to the various state bar leaders and chief justices — the conversation is front and centre now. I’ve seen a transformation in the last 14 months of so on this topic. You see bar leaders writing about it, you see chief justices participating in grassroots meetings to figure out what the legal profession should look like going forward and how we could better deliver legal services.

So I think the conversation is changing. But there are still many lawyers who think even having a conversation about this is something we should not be engaged in, that the legal profession is pure, and these intrusions should not be tolerated. My message back is, there’s this huge unmet need, and if there’s a way of meeting this need though technology, some legal service delivery is better than none at all. And to you, my fellow lawyers: You must adapt. Because more and more people are choosing to go online — a majority of Americans go online first to learn about their legal problems and revolve them. They look first to online services rather than to a lawyer. So lawyers must adapt if they’re going to continue to be significant players in addressing the needs of ordinary Americans.

MPRA: It’s interesting that you say that, because in some ways you’d think that if there’s any profession where resistance isn’t futile to all this disruptive technology, it would be the law. You’d think, when it comes to the law itself, you could say, “No, there are certain tasks that should be done by an attorney, and you shouldn’t be able to jump in here as a for-profit business and do them.” Do you think that a lot of a attorneys have that attitude, that they should try and resist these changes, rather than adapt?

WH: There have been lawsuits around the country against what is called the unauthorized practice of law, in various states. More and more, those suits have not been successful, because there is this huge public demand for more efficiency, and lower costs in dispute resolution and in the routine aspects of, say, creating a partnership agreement, or a civil corporation, or a will. LegalZoom has fought those battles in most states, and in every state except one, the rulings have been in favor of LegalZoom, saying that what they do is not the unauthorized practice of law, it’s simply providing the forms so people can do the work themselves.

MPRA: I know you mentioned you have some judges involved in looking at these issues. If you’re successful at educating the public, and making the law more accessible, won’t you end up with a much higher volume of people using the courts? Do you have any concerns there? I know in my home state, court budgets have been slashed, and getting through their existing caseload has been an issue.

WH: Well, I know in my conversations with judges, their primary concern is the high percentage of self-represented litigants which are essentially clogging the courts. In family courts across America, if you consolidate all of them, about 80 percent of the litigants in family courts are self-represented. And it’s a strain on the judges to try and figure out what the case is about, clerks of the court and other court personnel have to stop what they’re doing and try to answer questions and guide people through the process. So that’s the concern that judges have expressed to me, not whether or not this will create more cases. But whether we can have people represented in a way that streamlines this process. The judges would prefer to have lawyers involved.

MPRA: You talk to a lot of attorneys around the country. Are there any concerns they bring up with you that we haven’t touched on?

WH: We’re at an inflection point, and I think the target we need to keep our eye on is how to meld the technology with protections for the public that are currently there. If we don’t have some synthesis of the best technology with those rules and regulations that protect the public, we’ll have two parallel justice systems, one sort of stuck in the past, but with a great amount of protection built into it. And another system, that the public might start favoring — I think the signs are they already favor it — with the efficiency of these online dispute resolution services but without the protections that are built into the systems. So the challenge is the melding: Making the current system more efficient while maintaining those protections for the public.


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