Table of Contents
The Challenge
The Internet
Hurdles to Overcome
The Role of the ABA
Conclusion
Other sites that provide legal resources to the public
The Challenge
There is a misallocation of resources in the legal profession. On the one hand, there is the conventional wisdom that there is a glut of lawyers, and for many in the profession, the market is getting tighter and the economics of the practice are getting increasingly difficult. On the other hand, there is a large segment of society that is underserved by our profession. The unmet legal needs of the lower class are well documented, and although there are a number of legal services organizations attempting to address this problem, it is far from solved. Less publicized is the limited availability of legal assistance to the middle and lower-middle classes. Trapped between ineligibility for help from the legal services and pro bono organizations, and not being able to afford the substantial cost of hiring a lawyer themselves, this group has little or no access to legal help. Some have called this unmet demand a "latent market."
Resolving this misallocation of resources will not be easy. Funding for pro bono organizations is limited, and these groups continue to look for ways to serve more people with the money they have. Additionally, the costs of private legal services are not likely to come down until new efficiencies are injected into the practice of law. Technology can help on both fronts. It will allow legal services groups to continue to improve the dissemination of services to a broader array of people in need. And it will allow private lawyers to add new efficiencies to their practices, enabling them to provide legal services at a lower cost and still make a profit.
The purpose of this paper is to describe how technology is already being used to advance these objectives. It will also describe new technologies and applications that are being developed, as well as the hurdles that must be overcome in implementing these applications. Finally, it will describe what the American Bar Association is doing to help with accomplishing these goals. TO T.O.C.
The Internet
The Internet has radically transformed modern society, and the legal profession obviously has not been immune to this phenomenon. Much of the practice of law--from client communications, to legal research, to basic file and document management--is moving to the Internet. Unquestionably, the Internet will play a central role in the use of technology to improve the delivery of legal services. |
Generally, legal sites on the Internet fall into three general categories: (1) general legal information and research sites, (2) self-help sites, and (3) collaborative sites by which lawyers can harness the knowledge and talents of others outside of their own organization.
Legal research sites have been around for some time now, and they range from sophisticated private sites which generate advertising revenue to small, highly-specialized sites maintained by law firms. Among the more useful of the larger sites is FindLaw (www.findlaw.com), the Internet Legal Resources Guide (www.ilrg.com), and LawRunner (www.lawrunner.com), which is a powerful search engine with a legal focus hosted by AlatVista.
One of the more innovative private sites is the Immigration and Nationality Law site maintained by Siskind, Susser, Haas & Devine (www.visalaw.com). This site offers a vast amount of information to persons with immigration issues. Among other things, the site offers current information on recent federal legislation touching on immigration issues, as well as a weekly newsletter and links to other immigration resources on the Internet. Visalaw.com demonstrates the incredible potential of the Internet to private law firms--particularly those with a unique specialty or niche--in reaching and servicing clients.
The Maricopa County Superior Court established one of the earliest examples of a self-help site (www.superiorcourt.maricopa.gov/ssc/sschome.html). The objective of the site is to give clients with certain legal issues the information they need to negotiate the court system and resolve their issue without the need for a lawyer. It provides basic information about divorce proceedings, actions that can be taken in a domestic violence situation, and information about guardianships, conservatorships and wills. The site also provides downloadable forms to be used to handle basic matters in the judicial process. Finally, it provides a list of lawyers and mediators, organized by geographic area and specialty, for those clients who might need additional help in resolving their dispute.
A similar service is provided by the Peoples Law Library of Maryland (www.peoples-law.com/main3.asp). Sponsored by the Maryland Legal Services Corporation, this site provides a vast array of information and forms on a number of substantive topics. It also provides links to other resources on the Internet for conducting legal research, as well as help in finding and engaging a lawyer. Other sites, such as the Georgia Legal Services On Line Domestic Violence Protection Project, provide very specialized services, as well as forms that can be filled out on line and printed.1
There is considerable debate about how far these self-help sites can or should go. Some argue that demystification of the law is an admirable objective, and that providing people with basic information about the law and their legal rights not only facilitates the resolution of certain disputes, but may even help to avoid some disputes. Others argue that clients are incurring some risk when they choose to go it alone, and that the judgment of an experienced and qualified lawyer in many instances is critical to taking the appropriate action.
One site that has melded these issues together in a creative manner is the Desktop Lawyer site, a private service offered in the United Kingdom by Epoch Software (www.desktoplawer.com). This site offers a sophisticated document assembly feature whereby a client answers a series of questions, and a tailor-made document suitable for the particular needs of that client is generated. The service also provides an array of private lawyers on retainer available to the users of the Desktop Lawyer service who, for a fee, can answer any questions and assist with any issues the client cannot resolve himself or herself. Epoch Software is also licensing this technology to other lawyers, thereby enabling any firm in the U.K. to establish with minimal effort a sophisticated and fee-generating service on the Web.
One of the more exciting aspects of the Internet is its ability to facilitate collaboration, both within and outside of established organizations. Lawyers can use these "virtual communities" to harness the talents and resources of other professionals around the country with similar interests. Collaboration in the legal context occurs on two levels: the public level with open access, and a private level where access is limited. A good example of a collaborative site on the public level is the Equal Justice Network's web project (www.equaljustice.org). This is a group of legal professionals focused on providing civil legal assistance to low-income people. It provides a platform by which ideas and thinking on relevant issues can be exchanged among the group. By using technology such as listservs, this group can maintain a virtual conference of its participants without having to assemble everyone together in one place for a single meeting.
This same model has tremendous potential within the traditional attorney-client relationship. The development of extranets, which are simply private, password-protected internet sites accessible to a limited number of people, provide a host of possibilities in enhancing the exchange of information and synergy between clients and their lawyers. An extranet can serve roles ranging from providing a confidential repository for pleadings and important documents that both the client and attorney can access anywhere through the Internet, all the way to a central platform by which corporate legal departments can centrally coordinate their various outside counsel around the country. TO T.O.C.
Hurdles to Overcome
Lawyers, and the legal profession generally, are finally starting to catch up with other professions, such as accounting, in their innovative use of technology. Unquestionably, these innovations will play a critical role in improving the delivery of legal services to the poor and middle class. Already, technology is being used in ways that will substantially improve this process. But there clearly are a number of challenges to tackle before the advantages of this technology will be fully realized.
For one thing, a degree of coordination and an exchange of ideas is going to be critical. What is apparent is that various organizations around the country, within their discrete geographic areas, have implemented exciting programs using creative technology to better serve their lower and middle class clients. However, with limited exception, these programs have not been conducted on a national scale. The process of expanding the scope of these programs and spreading the ideas around will happen in two ways.
First, public judicial and legal services organizations must assume a leadership role in expanding the pro bono use of this technology. The Legal Services Corporation is already playing an important part in this process, and will continue to do so. As discussed below, the American Bar Association is also playing a role in this process. At least as important will be the involvement of state judicial systems and state bar associations. Until the innovative technology that is being developed is integrated into the management and formal distribution of public legal services by organizations at the state and local levels, its availability will continue to be limited.
An obvious, and related, challenge is funding. The research and development involved in the creation of these systems is time-consuming and expensive. Beyond that, implementation will require a degree of computer resources that are not yet available. It is one thing to develop better technology to provide legal services to the needy, but unless those clients have some means by which to access those systems, the effort is doomed to failure. The ongoing process of improving bandwidth and the efficiency of information flow through the Internet is critical to this issue, but equally important is the more pedestrian concern of simply making hardware available through which these clients can access that information. Again, state judicial and bar associations will play a role in this, as well as schools and libraries; it will also be important to enlist the assistance of private enterprise.
The process of expanding these innovations on a national level to the middle class is perhaps less daunting, largely because it will be driven by private lawyers pursuing a profit. As the legal profession begins to appreciate the impact of sites like the Desktop Lawyer program or the Immigration and National Nationality Law site discussed above, other lawyers and law firms will realize the importance of adopting similar innovations in their delivery of services to their own clients, whether it be through licensing the technology, as Desktop Lawyer offers, or the development of their own applications. The hope is that as further development of this type of technology brings down the costs of delivering legal services, the latent legal market of clients that formerly could not afford legal services will emerge, inspiring even further creativity.
The use of technology to serve clients raises a whole host of interesting ethical issues, as well. For example, does the inability to partner legal providers with non-legal providers impede the development of this technology, and interfere with innovation that may benefit clients? Will the developing rules on unbundling legal services help facilitate this process, and enable lawyers to provide discrete tasks for a discrete fee in a limited engagement with their client? How will the evolution of the multi-disciplinary practice affect these issues, and will it spur yet greater innovation? For an interesting and thorough examination of many of the ethical issues to be addressed in this context, please see Zorza, Re-conceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity, 67 Fordham L. Rev. 2659 (1999). TO T.O.C.
The Role of the ABA
The President of the ABA, Richard Paul, has identified as one of his priorities the goal of improving the use of technology by lawyers to deliver legal services to the poor and middle class. President Paul commissioned a task force, known as Tech 2000, chaired by Richard Granat, whose charge it is to assemble the most advance thinkers on these issues and develop a list of recommendations for the ABA in advancing these objectives.
The task force met in Chicago in March 2000, and developed such a list of recommendations. The recommendations were broken up into three categories: (1) ethics and rules; (2) technology and standards; and (3) lawyer competency. The task force made the following recommendations with respect to ethics and rules:
- The ABA should fund an entity to review existing ethics rules to identify those that impede the use of internet technology to deliver legal services to low and moderate income Americans, and, on an accelerated basis, to submit appropriate recommendations, consistent with the core values of the profession, to the appropriate rule-making authorities.
- The President of the ABA should designate an appropriate entity to engage state rule-making and rule-enforcement authorities so that interpretations and enforcement do not needlessly inhibit innovation. To that end, convene a multi-state (virtual and live) conference of state bar ethics policy makers and disciplinary officers, NOBC, NCBP to encourage internet delivery of legal services and information.
- The President of the ABA should designate an appropriate entity to facilitate the immediate creation of safe harbor rules to facilitate technical and practice innovation, while protecting consumers, lawyers and providers.
The task force made the following recommendations with respect to technology and standards:
- The President of the ABA should delegate to an appropriate entity the responsibility to develop collaborative relationships between non-profit organizations and entities engaged in electronic commerce and services, with a particular focus on those engaged in the delivery of legal services over the internet.
- The President of the ABA should designate an appropriate entity to play an active role in developing and sponsoring the legal XML standards. In that role, the ABA will encourage the use of the standard among its members, private industry, courts, and government agencies. The ABA will adopt this standard for all ABA publications.
- To improve law practice efficiency and enable lawyers to provide better legal services, the President of the ABA should designate an appropriate entity to facilitate private sector development of low-cost, comprehensive internet practice tools for lawyers. These tools should be especially targeted at small and solo practitioners.
- Finally, the task force made the following recommendations under the lawyer competency category:
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1. The President of the ABA should delegate to an appropriate entity the responsibility to establish standards and policies for E-Lawsites and provide ABA stamp of approval for E-Lawsites. Such standards should include, but not be limited to, privacy standards, disclosures, disclaimers, confidentiality, due-diligence, security, consumer information, and consistency of business models with professional norms.
2. The President of the ABA should designate an appropriate entity to revise the MacCrate Report's statement of fundamental lawyering skills and values to reflect new technological advances and enter disciplinary developments as standards of lawyer competency.
Conclusion
There is little question that technology can make us all better lawyers, and can help make our services more available to those in need. There has already been considerable innovation in this area. Lawyers and legal services organizations are already using creative technology to reach more and more clients who formerly were forced to go without legal help. But with the new technology comes new challenges, both technical and ethical. Pursuit of the latent market of low and middle class clients, as well as collaboration by legal services organizations around the country, will help in tackling the technical issues. Leadership by bar associations and ethics panels will help to resolve the ethics questions. While the problem will probably never be fully solved, properly applied technology should go a long ways in resolving the misallocation of resources in our profession, and in meeting the significant unmet need for legal help in our country.
Endnotes
1Other sites that provide legal resources to the public include the following:
1.The Atlanta Legal Aid Society (http://www.law.emory.edu/PI/ALAS/)
2.Alaska Legal Services Corporation (http://www.ptialaska.net/~aklegal/)
3.Center for Arkansas Legal Services (http://arkansaslegalservices.org/)
4.Arizona Justice Institute (http://www.azji.org/)
5.California Rural Legal Assistance (http://www.crla.org/)
6.Connecticut Legal Services (http://home.earthlink.net/~clsadmin/)
7.Florida Rural Legal Services (http://www.frls.org/)
8.Maine - Pine Tree Legal Assistance (http://www.ptla.org/)
9.Maryland Legal Services Corporation (http://www.mlsc.org/)
10.Massachusetts Legal Services Programs (http://www.neighborhoodlaw.org/)
11.Michigan Poverty Law Program (http://www.mplp.org//index.htm)
12.Minnesota - Southern Minnesota Regional Legal Services (http://homepage.rconnect.com/smrlswi/index.htm)
13.Montana Advocacy Program (http://www.mt.net/~advocate/)
14.Nebraska - Legal Aid Society (http://www.las-omaha.org/)
15.New Hampshire - Legal Advice and Referral Center (http://www.mv.com/ipusers/larc/)
16.New Jersey - Legal Services of New Jersey (http://www.lsnj.org/)
17.Legal Aid Society of New York (http://www.legal-aid.org/)
18.North Carolina Justice and Community Development Center (http://www.ncjustice.org/)
19.Ohio State Legal Services Association (http://www.iwaynet.net/~oslsa/)
20.Legal Services of Eastern Oklahoma (http://www.lseo.org/)
21.Philadelphia Legal Assistance (http://www.philalegal.org/)
22.Rhode Island Legal Services (http://www.rils.org/)
23.West Tennessee Legal Services (http://www.wtls.org/)
24.Texas Legal Services Center (http://www.tlsc.org/)
25.Legal Services of Northern Virginia (http://members.aol.com/lsnvmain/)
26.Legal Foundation of Washington (http://www.legalfoundation.org/)
27.Legal Action of Wisconsin (http://www.legalaction.org/)
TO T.O.C.
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PORTAL
Todd Miller is a partner with Holland & Hart LLP in Denver, Colorado. Mr. Miller earned an economics degree from the University of Washington in 1982, and a law degree from the University of Colorado in 1986. He practices in Holland & Hart's litigation group, with a focus on commercial and tort litigation. He is an avid user of technology, and speaks and writes frequently on the use of technology in the practice of law. He is also on the Technology Committee of the Torts and Insurance Practice Section of the ABA.
