The ABA Model Rules of Professional Conduct make fairly clear that lawyers have a duty to bring about access to the legal system on behalf of the public. Today, this means seeing that technology that can help bring access to legal services be used to do so.
The preamble to the ABA Model Rules of Professional Conduct makes it the duty of lawyer entrepreneurs driving innovation and technology, like me, as well as lawyers in regulatory bodies do all we can to deliver access to legal services to the American public. Not just for the impoverished, who may or may not be entitled to legal services and pro bono services, but for the vast majority of Americans who have no effective access to legal services.
These are model rules, until adopted by individual states, and this is a preamble. But it would be a sad reflection on our profession if lawyers interpreted gaps in ethical guidelines to avoid addressing a problem we’ve arguably created.
From the preamble:
[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. (emphasis added)
When I shared paragraph six with my comments about lawyers in general and those in legal tech companies over on Facebook, Dan Linna, who’s been a leader on the legal innovation and technology front, commented:
I agree that we lawyers should live up to these ideals. I’m afraid that this preamble and lawyers’ commitment to the public and justice generally ring hollow to most people as mere platitudes. We lawyers can change the narrative. There are many opportunities to lead, work with other professionals, and help create a better future!
Linna’s right. We can’t reduce to a mere platitude a lawyer’s comittment to seeing that the public has access to legal services. When it’s done, we need change the narrative and work to create a better future.
Legal tech entrepreneurs, at least those who are lawyers, have a duty to seek access to legal services in the work they are doing. Many are doing so. Other legal tech companies are focused on large dollar transactions and litigation among large law and corporations, all of whom already have access to legal services.
Legal tech entrepreneurs are not alone in their obligation. Lawyers, particularly those in regulatory and licensing bodies, have a golden opportunity to improve access to the legal services. More than an opportunity, they have the duty to do so, per paragraph six.
Rather than meeting their obligation, some bar associations, presumably guided by their lawyers, have taken stances against innovation and technology that could have improved access to legal services.
Look at Avvo’s fixed feed fee legal services which a number of bar associations brought to a halt by telling lawyers it would be unethical to render legal services as part of the Avvo service. The reason being a bit of a stretch — that lawyers would be splitting fees with a non-lawyer as a result of Avvo’s marketing fee.
Rather than meetIng their duty of improving access to the legal system and legal services, the bar lawyers turned the other way.
Bankruptcy trustees, also lawyers, are standing in the way of legal technology expediting the processing of bankruptcy filings in the name that doing so would be improperly unbundling legal services.
Rather than debate legal technology and split hairs to prevent its use, let’s change the narrative and focus on our ethical obligation to effectively use technology to bring access to legal services.
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