2017 Howard Lichtenstein Distinguished Professorship in Legal Ethics Lecture

Afternoon everyone and welcome, welcome to Hofstra and for those of you who are returning, we welcome you home to Hofstra and the ones who already, as I say, live here, we’re happy at Hofstra and welcome to a very special lecture this afternoon. It’s my pleasure as the interim dean of Hofstra law to introduce to you our very own Howard Lichtenstein, professor of legal ethics and the director of our Monroe Friedman Institute for the study of legal ethics. I like to refer to her as one in a billion. Hofstra is the beneficiary of her many talents and that is our very own professor Ellen Yaroshefsky. Professor Yaroshefsky teaches ethics courses as well as criminal procedure and organizes more events than anybody else I know here at Hofstra. Not only does she lecture and write and concentrate on issues in legal ethics, but also with a concentration on our criminal justice system. I could go on and on and tell you about all the awards that she has won an all the recognition that she has received, but what I think is essential that you do know is from 1994 to 2016, prior to coming to Hofstra, which was one of the best decisions she’s ever made, she was a clinical professor of war and the director of the Jacob Burn Center for Ethics in the practice of law at the Benjamin N.

Cardozo school of law in New York. And prior to being on a Cardozo faculty, she was an attorney who concentrated on constitutional rights in private practice. As I said, if you look at her bio, the awards are absolutely incredible I just mentioned one recent award which was the outstanding contribution in the field of criminal law from the New York State Bar Association, very prestigious award. But to me she is, and I hope to you, not only a fabulous professor, not only a fabulous teacher and mentor, but absolutely fabulous person. So it is my pleasure to introduce Professor Yaroshefsky. Thank you so much, it’s really an over the top gracious introduction, but if I’m one in a billion this is one in a trillion so I am so delighted.

So this is my inaugural Howard Lichtenstein lecture, this is the first time I’ve sponsored this at Hofstra law school. So before I introduce our terrific speaker Andrew perma, let me just tell you a little bit about Howard Lichtenstein. Howard Lichtenstein was a labor lawyer who was an expert in administrative law, and so for some 44 years he worked as a labor lawyer at the firm of Proskauer Rose. He was really committed to legal ethics and to legal education. And so when Hofstra was founded, he, along with with others, decided to sponsor a professorship and then as a result of that, this lecture. This lecture began in 1991 and we have had the country’s most distinguished legal ethicists come and speak to people at Hofstra law school.

So when I came here I thought “who do I want, who is the person I think?” and now in the field of legal ethics “who’s doing the most engaging, innovative and exciting work?” and there’s nobody better in my mind than Dean Andrew Perlman. And I was delighted and honored when he accepted the invitation to come here, he’ll be here today, he’ll be here tomorrow at a matrimonial summit. So let me just tell you a little about him.

You should google him, I want to just tell you if you go online and you see what people have said about him when he became the Dean at Suffolk in August of 2015, there’s just a level of excitement about who he is, both as a teacher, as a scholar, but as an innovator in legal ethics that just pervades all of the PR, as he would call it, online about him. I’ve known Andy for a number of years because we’re both in the field of legal ethics, and he is perhaps the most innovative person who has a vision, and he’s called a visionary, about what the future of this legal profession looks like and should look like. So he talks about technology, as you’ll hear today, talks about innovation, and he talks about globalization. Those are all of the reasons that at (Suffolk County that he at suffolk county) in Suffolk at Suffolk law school, that they enjoyed so much the idea that someone who taught Civil Procedure, who taught legal ethics, who wrote a textbook on Civil Procedure, a textbook on legal ethics, that those of you who are in my class, we use his textbook, right.

That’s among the reasons they decided he’d be perfect for this period of time going forward, to look at the future of legal education. And he’s won a number of awards. But I just want to talk to you that some of the work he’s done in the profession that’s so significant. The american bar association created various commissions. One of them is a new one, the center on innovation; he’s the chair of that. Before that, there’s the ABA commission on what we call in my field “ethics 2020” looking, it was years ago, looking forward to say what kind of rules and regulations do we need in 2020. He was the chief reporter, he brought notions of technology and globalization to the current rules that we have, to the current conversations around the country about the way in which we should regulate lawyers and what are the concerns about the profession going forward. On top of that, I don’t know how he does all of this in his spare time, but he’s got a deep commitment to access to legal services for people who can’t afford it, and so among the things he’s done in the last few years, he’s traveled around the country holding hearings where many people come and testify about the ways in which legal services should should be offered to people, what kind of rules should we create, what kind of regulations.

So he’s just done so many things. Now I can talk about him personally, but I have to tell you, I want him to have some time to talk, in addition to people saying he’s creative, he’s practical, he’s a visionary for future of the profession, he executes with clarity and precision, he leads law schools in a way that prepares grads to be innovative, highly successful, and a valued counselor to their clients. I can think of no better accolade for any professor or any Dean.

But I have to tell you on top of that, he was the law professor for some of your favorite professors here. So Professor Sample was Dean Perlman’s student in his first year of teaching. Professor Austro was Professor promise. He doesn’t even look old enough to be their teacher, but he actually was, and Jen Gundlach, Professor Gundlach taught with Professor Perlman at Suffolk for many years. My final point is one of the things I love and appreciate most about Professor Perlman, Dean Perlman, is when Google decided we want to test out new technology for professors. They develop something you may have heard of called Google glass and they picked you… what is google glass? Believe it or not, professors stand up there with their glasses on with a little computer right as part of their glasses, and somehow you, I could never understand this, but you can see your computer at the same time that you’re looking out and teaching.

Who did they pick? Who did they pick as a person around the country with whom they were going to try google glass? Professor Perlman. So we’re so delighted you’re here, and thank you so so much Thank you for those extremely generous remarks. Excessively generous but I appreciate it, I’ll take them. I am so grateful to be here and be giving the Lichtenstein lecture. So many of my mentors, people I look up to, have given this lecture over the years and it is a real honor to be giving a lecture myself. I want to acknowledge a few people who are here, I’m especially grateful heard those remarks. First of all my aunt Arlene Kashkin is here; she lives nearby, and notably her son attended this very fine law school as a successful criminal defense lawyer, her partner, Don Sadowski, is also here, thank you for coming, my stepfather Lewis Wervalowski is here thank you very much sir, and the final person I want to acknowledge and am especially grateful she heard all of those wonderful things about me, is the person who, quite literally, I would not be here without her, and she gave me all of the support that I needed to achieve the various things that I’ve achieved throughout my life in my career, and that’s my mother Beverly Perlman.

It adds to the pressure of giving a lecture when your mother is in the room. So pretend that you’re enjoying it, even if you’re not. So I’m giving a presentation about the future of the legal profession, but I think in order to do that, we need to first understand where we come from, the history of the legal profession and what the delivery of legal services look like let’s say a hundred years ago.

Here is a picture that I think nicely captures it, I think, there we go, this. A couple guys, typically older guys, typically white older guys, sitting around the table with the books on the shelf shuffling some papers. This is the image that we have of what legal services look like many years ago and it’s pretty close to accurate. And there are certain words that would come to mind when we think of law practice in the past; books, physical offices, lawyer generalist, the idea that people handled anything that came through the door, there is not much specialization, and handled it from soup to nuts. They didn’t have the opportunity to delegate tasks to other people in their firms, they tended to handle it all themselves. When we think about law practice today, an entirely new vocabulary comes to mind. New words, new knowledge, new skills, a new way of doing things, and I think can best be characterized by two words and those words are rapid change.

Now unlike that rapid change, here’s a question I often consider, that is “what new competencies do lawyers need to have today that they didn’t need 20 years or so ago when I graduated from law school?” and here is where I’ve been able to do some work, and Ellen referenced the 88th commission on ethics 2020 that added some new language to a common to rule one point one, which has it for the readings taken Professional Responsibility will know that’s the duty of competence.

And the new language that was added is underlined on the screen. The idea is that lawyers not only must keep abreast of changes in law and its practice, but that necessarily includes understanding the benefits and risks associated with relevant technology. This was the first time that the word technology ever appear in the Model Rules of Professional Conduct, and it was very conscious decision to place those words in the context of the lawyer duty of competence. So in the few years since that change through 1.1, 27 jurisdictions have adopted that language or something very close to it, including New York. So now we have embedded in the rules of professional conduct the notion that lawyers, in order to remain competent, have to understand the benefits and risks associated with relevant technology. So here’s the question, what is the typical lawyer reaction? I am a law professor by training so I’d like to ask multiple choice questions. I will give you two possible answers. So is the answer to this question “somebody that looks like this?” now you heard me talk about google glass, this is pretty close.

Anybody just trivia question know who this is? what the context is?… Jean-Luc Picard when he was forced by the board to equip himself with technology and the phrase that was often muttered was “resistance is futile.” Is this the reaction that lawyers have, resistance is futile, they embrace technology, they become one with technology? OR is the typical reaction something that looks more like this? That. When lawyers’ heads in the sand. And for the most part on this, more often than not, is what the typical reaction is. The question I struggle with, as a lawyer who wants to see the profession move forward, who wants the team who embrace technology for the benefit of clients and the public, why is it that our profession has to be so slow in adopting new ways of doing things? And here is where i am going to blame myself, or at least symbolically myself, that is blame law schools.

I think law schools do not do a particularly good job of preparing future lawyers for the profession they are about to enter. So let me take you back in time once again to what legal education looked like during that first slide I had up on the screen. This man, Christopher Columbus Langdell, pioneered a new approach to legal education at Harvard a little over a hundred years ago. Prior to Christopher Columbus Langdell coming on the scene, the way that lawyers learned and prepared for the profession, if they went to law school at all, because you could apprentice and gain access to the profession that way, but if you went to law school, you simply read treatises, you read descriptions of what the law was. Langdell came up with a new approach, he said, why don’t we have students read primary sources in a particular legal opinion and be able to extract from those opinions basic legal principles and then apply those principles to a set of facts that students have not seen before.

This is called the case method of legal instruction and it’s spread throughout the country to every, essentially every law school. Now a lot has changed as we know, since Christopher Columbus Landell did his work. So what does legal education look like today? Well I would suggest to you, it looks a lot like it did over a hundred years ago, still very Langdellian. For those of you who’d recognize the description of reading a case, extracted from the case of basic legal principle and applying it to a set of facts you’ve never seen before, we still do that. Now I want to be fair to law schools, after all I’m the Dean of one, and we have modernized legal education in a variety of ways. We have pushed Langdell off to the side and we have added certainly new subject areas, new dot trial courses, reflecting changes in society, more importantly we’ve added new skills, we’ve added more clinical instruction and professor Yaroshefsky has been a leader in the clinical education movement for quite some time. We’ve added more training and legal writing; all important developments. But the end of the day, the reality is law school and legal education is still inherently backwards looking.

We look to precedence, we look to the way things were done in the past rather than to the future about how legal services will be delivered in the coming years. So I’m fond of a quote attributed to Wayne Gretzky and a legal futurist named Richard Sustin quotes Wayne Gretzky this way. So this is me quoting Richard Suskin, quoting Wayne Gretzky, so it says “skate to where the puck’s going not where it is.” Now I think that’s really good advice for hockey players, but I would also suggest that it’s really good advice for lawyers and law schools. So the question that we have struggle with, where is the puck going for the delivery of legal services? And here is the answer suggested by Richard Suskin and with which I wholeheartedly agree. So these are the new competencies and what I want to focus on is new law, that is the puck is moving in the direction of all new competencies and among them the most important are the ones relating to delivery of legal services in new ways. So here’s the chart that Richard Suskin came up with, he is from the UK a pept is a British spelling so bear with me.

So let me explain what this is all about. On the left side, you see the word bespoke. How many of you know what the word bespoke means? Only a few people. It’s kind of a distinctly British word but let me tell you what it is. Bespoke being highly tailored and customized, unique to the individual. So the classic example of bespoke is if you buy a bespoke suit, that is the tailor takes your measurements exactly to your specifications and creates the suit that is meant for you and you alone. It’s suffice to say unfortunately this is not a bespoke suit, I’m got this, I don’t know, at marshals or something like that, so it’s not bespoke. Bespoke is specific to the individual.

Now, legal services can also be bespoke. Bespoke in the sense client comes in, you are preparing services for that individual, unique circumstances each time from scratch and it is custom tailored. That’s a bespoke legal service. Now over time, aspects of legal services can become standardized, so you don’t have to go through that same mechanism every time a new client comes in the door. So you can get certain standardized phrases or clauses that you might put either in a contract document or a litigation document, so certain features of legal services can become standardized. Eventually, the service can become so standardized that you can create documents in a very systematic way, you’re not just merely repeating certain phrases and clauses, but you can generate entire document by simply filling in some forms. Eventually, you can turn that around, make it available to the public to purchase on their own with very little involvement from the lawyer, and at some point, that legal service becomes so easy to produce, that the public can get it in effectively a commoditized way, for free, there’s no money really to be made for lawyers in that area anymore.

Let me give you an example of a service that has gone through this transition. Let’s take basic wills and we’ll start at nineteen eighty. Back then, if you were going to go get a will, it was a largely bespoke undertaking. You would walk in to a lawyer’s office, the lawyer would ask you a number of questions, would draft up a will, review it with you, maybe make some changes, now there may have been some standardized features, certain clauses and phrases and provisions that you would find in just about any will in a particular jurisdiction, but it was still largely a bespoke undertaking. Now if you fast forward and we think about what does it look like today in 2017, we are largely at commoditized basic wills, that is if you want a basic will, you can go online, answer a number of questions and get that service and an extremely low cost relative to what it would have cost you many years ago.

And if you think more generally about transactional services, what we see is a splintering of the marketplace, that is where some services are at the bespoke level, but you see other kinds of transactional work taking place at other points along the way. So let me give you some examples. A commoditized transaction, if you are going to incorporate a small business that is effectively no cost. You can go on a government website, you can get the forms, you can fill them out yourself, and it’s very easy to do. If you are a lawyer and your business, your practice, is all about incorporating small businesses, you might want to consider finding another area of work because that one is not going to generate much revenue for you in the future. Moving along, package legal services. The classic package legal service provider is legal Zoom.

They take technology, they are providing a service, they are developing all of the questions and answers, or the questions that the public can answer and for a fee generating that document. So it’s taking the service, packaging it to the public for a fee, driving down the cost of various kinds of transactional services. The leading provider of incorporation in California right now is Legal Zoom, and it’s not even close. They are dominating in packaged legal services of various kinds of transactions. Systematize, if you’ve ever closed, gotten a home mortgage, or refinanced, you’ll have a lawyer who shows up at your home or you go to the lawyer’s office and you get a stack of papers.

There’s not somebody at a computer typing up each and every page of those documents. Those documents are generated in a systematized way using technology, using the basic information that inquired it, and you can spit it out in a systematized way. That’s the only way that you can actually make any money in home closings. Now plenty of people do and if they have the right technology there’s still a lot of money to be made there, but it is largely a systematized approach. At the end of the day though, law schools, most lawyers, we’re all focused over here, we’re still thinking about libering legal services of a bespoke way because that’s how we’ve been trained.

That’s a mistake, because the market is quickly moving along in other points along the way. If you, as future lawyers, or as current lawyers, can learn to deliver legal services using technology at other points along the spectrum, you will in very short order come out ahead of your competition and be much more successful. And I can give you lots of examples of that that I’ve seen around the country. And it’s not true just of transactional documents, it’s also true of dispute resolution. Once again in my dispute resolution I mean is very broad to include litigation of various times including dispute resolution outside of court. Let me give you an example of a commoditized dispute resolution service. There’s a company called Modria, how many of you have heard of Modria? That’s okay, just a couple of you and it’s not uncommon to only see a couple of hands go up. But here’s what’s remarkable, Modria resolves more disputes in the United States then the entire US Court system combined.

And nobody knows of them. It’s pretty remarkable that it would be a company that is so involved is resolving disputes that a room full of law students and people of the legal industry and don’t know who they are. So let me tell you who they are. Modria is the platform developed for ebay and paypal to resolve disputes between customers who use the service. I’ll give you an example because I’ve had this happen. I bought a television and received a best buy gift card. I wasn’t planning on going to bestbuy so I decided to put it up on eBay. Somebody bought it, I received the payment electronically, and then I put the best buy gift card in an envelope and I sent it to the buyer.

A week later, the buyer says I never received it. “I don’t know what you’re talking about, I put it in the mail” and the person says I want my money back. Well we’ve got a little bit of a problem. With that I did some research, turns out the gift card had been used, so how do we resolve it? Well I’m not going to go to small claims court, that doesn’t make any sense, the person lived in Canada, and there’s no way that ebay has the human resources to resolve small level disputes like this in a bespoke manner. So what Modria was, was a technology platform that sits on ebay and paypal and resolves disputes of this kind. And what you see happen is a series of questions and answers that are posed to the people who have a dispute. Question that was asked to me was did I have a return receipt? The answer was no because I was a fool and put the giftcard in an envelope and just mailed off, had no confirmation that it had been received.

Now according to the terms and conditions on ebay’s website which I could have read if I had bothered to do it, I was supposed to get a return receipt for exactly this reason in case somebody called me out on it. So at the end of the day, I lost the dispute. Now I can tell you as a former litigator this was infuriating. I wasn’t pleased that the outcome in that regard, but at the same time I thought it was fair. It was fair, I couldn’t prove that I had sent this out and that it had been received; I’m the one who should bear the associated cost.

Now Modria is doing this not only for ebay and paypal but provides a lot of other services as well throughout the country and the world. And court systems are moving in this direction, so I’ll give you an example right here in new york. New york is developing a pilot project for consumer debt cases to resolve them online, it’s the very early stages of development but it’s this idea of trying to resolve disputes and driving down the cost as much as possible to the benefit of consumers. Okay so package if you walk into some courthouses you’ll see Kiosks. This is the idea of turning around court services making them available to the public using technology. And there are other examples as well, systematize the dispute resolution services, you can generated complaints, responses to interrogatories, you can do document requests, in a systematized way using technology. But the end of the day, and I’ve taught civil procedures so I know this well, for the most part, we’re teaching future lawyers how to deliver dispute resolution services in a bespoke manner.

Okay, on top of all this, bespoke legal services themselves are now under threat through increasingly sophisticated artificial intelligence. Great example here, you may have heard of IBM Watson which got so sophisticated that can now beat the best jeopardy champions ever, and just think about how remarkable the AI has to be to listen to a question understand what it means in a jeopardy file format and beat the best jeopardy champion in the world. That’s how sophisticated AI is becoming and if AI can do that, it’s not too much of a stretch to think that there might be some legal applications. One company has developed a solution in legal research context using AI, there’s a company called Lost Intelligence, and if you were looking and reading the news just last week you’ll see in this report on literally the end of February, JP Morgan has developed a software solution in a particular context of financial deals that kept legal teams busy for thousands of hours, can now take seconds, seconds.

So what does that mean for the future of bespoke services? We are facing a very significant change in how legal services are going to be delivered in the future. So to compete, to serve the public effectively, we need to think outside that bespoke box, we need to understand how to deliver legal services in new ways. Now how can we do that? For those of you who are still in law school, there’s still time and I want you to understand how law firms are responding, because if you’re going into a firm, whether it’s a small firm or a large one, you’ll be better prepared if you understand some of these new concepts. Legal project management and process improvement techniques, these are concepts from the business world that have been employed in any number of ways to drive down the cost of various kinds of production and services.

It’s now coming to law. Law firms now have legal project management departments, they are mapping the processes of how various legal services are delivered, and they are finding ways to use either technology or people in ways that make that service more affordable. At the same time, law firms are also automating the creation of documents in much the way that legal zoom does, but they are doing it in house.

They have expert system tools where the lawyers are providing the substance knowledge and through questions and answers you can find the information you’re looking for. So imagine you’re a company and you have human resources department and you want to know whether somebody is an employee or an independent contractor. Through a series of questions and answers, with lawyers providing the substance, you can quickly find out the information without picking up the phone, without speaking with a lawyer, an expert system tool can be created by law firms to generate that kind of service. We will process outsourcing, so law firms that don’t have the capacity to develop the technology themselves are sometimes outsourcing it to an increasing variety of companies that have that ability to provide that service.

And some law firms, an increasing number of them as I’m talking terms, are moving away from the billable hour, set up building by the tenth of an hour, you go to a AFAs which is known as alternative fee arrangements and the benefit of doing that is it creates a much stronger incentive for lawyers and law firms to find better ways, more efficient ways, to deliver their services. Think about what it means if you’re a law firm billing your services almost entirely by the hour. What incentive do you have to do the work more efficiently? Because at the end of the day, it will make you less money if you are more efficient. By using ASA’s, it creates a different kind of incentive that I think will produce more efficiency in the long run. So those are some of the law firm responses and larger law firms are really embracing this, creating resources development departments within their law firms. This is something that you would put in a realm of science or pharmaceutical companies, right? Research and development. law firms are investing in research and development to create solutions that will help their lawyers deliver the services more efficiently and become more competitive.

In house legal departments are doing the same. The corporate legal operations consortium called CLOC, was just created within the last year or so. Legal operations is becoming a huge area… I think I said ‘huge,’ I apologize. A huge, with an H, area inside of legal departments and they’re using legal process outsourcers and they are focused on legal project management and process improvements. So lawyers who want to do work for companies better be aware of how the clients are changing their expectations as well. Responses by law schools. So even though I made a little bit of fun of law schools for not doing much to change, in a task force on the future legal education reached a similar conclusion saying that changes and delivery of legal services and more related technology import, only a modest number of law school currently include developing this confidence as part of the curriculum.

Now fortunately, it may be modest but it is growing and I’ll know two schools on this list that I think we should be proud of. Of course one being Hofstra any other one is my own law school, Suffolk. So here at Hofstra, as many of you might know, you have a law logic and technology research laboratory that is really trying to push the ball forward in this regard. At Suffolk we have an institute on law practice technology and innovation that is trying to do the same thing, we have a concentration in the area where we’re teaching students legal project management, process improvement, legal design, we’re trying to teach them about automated document assembly and expert system tools, and it’s paying off. Our students are getting new kinds of internships in legal project management, areas like knowledge management, and it’s leading to some pretty cool results.

So here’s a story of a relatively recent graduate who went through our concentration. So as we created this program, I got call from a law firm in Seattle. Alright so Suffolk is in Boston, although by the way, Ellen said Suffolk County. I can’t tell you when I’m on the road how many people think Suffolk law school is on Long Island because of Suffolk County. We’re not, we’re in Boston. So Seattle-based law firm reach out to me, this is before I became dean when I was a director of our institute, and said we hear that you’re providing this kind of training, we’re going for people who have exactly this kind of skill set and we can’t find anybody. Do you have someone? And this young woman was somebody who had that skill set because she came through our program and we have lots of little stories like that of recent graduates would because they not only know how to practice law in the traditional way, but they are supplementing that knowledge with new ideas, new skills that will make them more competitive no matter what career they may choose.

So that is the future of the legal profession as I see it; innovation and technology. One last help because this is a legal ethics lecture and by definition I want to talk a little bit about regulation. And in particular what the future of legal services regulation should look like in light of this emerging new reality. If you go back 40 years or so ago, you saw the birth of something called the law of lawyering and the Institute, Monroe Friedman Institute.

Monroe Friedman was a leader, a pioneer in this area of developing the law of lawyering. And since that time it has become a really robust area with many different features governing what lawyers do. So here’s a chart that may help you understand the basic point I’m going to make. Here’s the law of lawyering over on the left side, that is the law governing what lawyers do. Rules of professional conduct are one obvious example of law that governs lawyer behavior. Malpractice law, tort law can govern lawyers behavior. Rules of Civil Procedure to some extent, rule 11 and other kinds of rules govern lawyers behavior. There are administrative regulations; sarbanes-oxley, IRS regulations that have some provisions that are directly targeted at lawyer behavior. This is the law of lawyer. But in light of the emerging reality of all of these new players in the industry, some of them I’ve already referenced, we need to think more broadly about the regulation of legal services, more broadly about what legal ethics actually is.

Legal ethics can’t just be about lawyers anymore, we need to think about all of the other new service providers. And so this category in an article I recently wrote suggests that we need a law of other legal service providers and that we need to conceptualize this whole area more broadly as the law of legal services. And under that umbrella includes the law of lawyering, but these other kinds of law as well. And there are two different sub parts to this law of other legal services providers; there are court authorized and regulated and then there are market created new players and I just want to talk briefly about those two categories. So let me start with court authorized and regulated, and actually before I dive into that I want to ask a different question why is this ship important? One I’ve already alluded to, but I want to talk briefly about the second, Ellen also mentioned the important role of access to justice and a lot of the work that I’ve been doing and that we should all be doing.

So first of all the shift in regulatory thinking is important first because of the sheer number and growing number of other kinds of legal services providers, we need a regulatory framework for thinking about what they do, for appropriately regulating what they do. But secondly, and even more importantly because when I posed that first question people sometimes say well why should other people, people who are not lawyers, be allowed to deliver legal services at all? Why is that not just the unauthorized practice of law? So I want to make the case for you that other legal services providers should exist, should exist alongside lawyers and the two are not mutually exclusive. Why do I think these other kinds of legal services providers should exist. The reason I think that is for a few different reasons. Primary among them is that there’s an enormous access to justice gap in this country. We know that eighty percent of the legal needs of before go unmet. We know that in a significant number of courts around the country, a vast majority of people who show up there do not have lawyers, they’re representing themselves per say.

There’s a huge problem with people not getting access to the legal services that they need and the lawyer based solutions that people have been proposing for decades are simply not enough. Here are the three lawyer-based solutions that people have advocated for. Number one, civil Gideon. So we are familiar with Gideon versus Wainwright, the idea that you have the right to a lawyer in a criminal proceeding where you’re facing potential jail time. People think the case ‘well there are lots of other legal issues that people may confront that are almost as equally important and they deserve representation in those contexts as well’ Called the civil Gideon movement and there has been some progress but not nearly enough to ensure that everybody has access to legal services that they need. Other people say ‘well we just need to advocate Congress to increase funding for civil legal aid.’ Well I don’t know, you may have a different view but right now there’s a proposal to actually eliminate the Legal Services Corporation which is the primary source of funds for legal services at the federal level.

I am not at all optimistic that we’re going to see increases in funding for civil legal aid. Other people have argued ‘well lawyers just need to do more pro bono work.’ Lawyers are already facing incredible competitive threats. The idea that they should ramp up their pro bono work, while wonderful, it’s a great idea, very unlikely or auburn in order to meet the need of the American public in terms of their legal services, lawyers would have to perform, each and every lawyer, would have to perform something in the order of 250 to 300 pro bono hours a year.

It’s just not going to happen, it’s not realistic. So what do we do, how we approach this issue given that the traditional solutions are not cutting? I think the two court-authorized regulated legal services providers and embracing they’re appropriate in regulating, new market-based solutions is the way to go. So coming back to my diagram, I’m talking here about court authorized and regulated. Just give you a couple of examples, triple LTs they’re called limited license legal technicians. They exist in Washington State; took them about 14 years to make it happen because there was so much resistance to it and the idea behind it is they are people who got very specialized training, thousands and thousands of hours of training, in a very particular area, in Washington it’s family law, and they are allowed to deliver legal services in family law and they are considered lawyers for purposes of that type of service and so that is regulated by the court in Washington state. All sorts they are subject to the rules of professional conduct that look almost exactly the same as they do for lawyers, so that’s one solution.

More modest is our courthouse navigators, so you can go into a courthouse and you have this in New York where you can go somebody will be there and help guide you to the information you need and those are regulated by courts. You’ve got document preparers in some jurisdictions in the world and help people prepare legal documents but they are constrained in terms of what they can do. Again, regulated by courts. At the same time, we also have a market, and let me just talk about this recommendation from the ABA commission on the future of legal services endorse the idea that courts should be looking at these new kinds of legal services providers, and if they determine that they are beneficial to the public, should be adopting them.

So it was an important finding in people that were interested, I could tell you a little bit more about the process that lead to that recommendation. And then we have market-based solutions. So the market-based solutions, there are some that are entity facing that services are delivered to, for example, in-house legal counsel more law firms and then there are some that are public facing and the classic example here would be legal zoom but you can also think of Abo for those of you who have seen Abo, they provide legal information to the public, they’re also into the marketing arena for a lawyers. What do we do about them? Well the typical reaction has been binary and what I mean by that is that states have gone one of two directions. They either try to shut them down, so legal Doom has been subject to unauthorized practice of law litigation in the number of states, Legal Zoom has won every single case. Sometimes they had to a make a few changes here or there, but they are permitted to operate everywhere so that has not thrown it to be a particular wise approach or an effective approach.

Other jurisdictions have just said ‘well we’re not going to do anything about Legal Zoom.’ They’re just going to let consumer protection provisions govern. That seems to me to be under appreciating the kind of services that a company like Legal Zoom may provide. So I think there may be a third way and that third way is what a Professor named Jillian Hatfield has called right regulation. The idea of thinking about regulating in a meaningful way these new kinds of legal services providers, and what this means is liberalizing the marketplace for legal services does not mean deregulating. We can provide appropriate regulation, we can embrace these new providers and appropriately regulate them at the same time and the Commission on the future of legal services essentially reach the same conclusion and suggested regulations in this area should be governed by what are called model regulatory objectives for the provision of legal services.

These are brand-new within the last couple of years listing what are the relevant considerations when we are thinking about new kinds of regulation. Nowhere in this list will you see protection of lawyers as one of the objectives, that was quite intentional. The idea is it is about protection of the public and we should be regulating companies like Legal Zoom and other competitors with the public at the forefront of our mind. Now this is a threat to lawyers and I care very deeply about the future of lawyers and my own graduates, I’m sure you all do too, but when we’re thinking about regulation we need to be, especially because we self-regulate, we need to be thinking about what is best for the public that we are all privileged to serve.

And so these principals, I think are really important to follow. Okay, are there any other regulatory invasions? I’ll just mention one and then I’ll close. There is a recommendation from the Commission on the future of legal services that states should continue to explore where call alternative business structures. So rather than thinking about lawyers over here and other legal services providers over here, why don’t we allow them to work together more readily? And for those of you who have taken professional possibility you know that in the United States there are severe limitations on our ability to do that. Rule of the rules of professional conduct prohibits lawyers from sharing fees with people who are not lawyers and this dramatically limits the ability of law firms to bring on as partners or as equity investors, people who want to help law firm innovative, to compete with the Legal Zooms of the world.

This puts us at a competitive disadvantage and I think rule is not doing law firms a great service and it’s not doing our clients a great service and one of the recommendations was continued exploration of this idea of eliminating that law and allowing lawyers and people who are not lawyers to work more closely together. So what’s the bottom line? I hope I’m leaving you with the message that we need to think in new ways, we need to think in new ways about how we deliver legal services, we need to think of new ways about how we regulate legal services.

This is about our future as a legal industry. I think if we don’t embrace these changes we are going to see regulation taken away from us as has been the case in other parts of the world. The UK had regulation taken away from them. I think we as profession need to focus on making sure that we are doing whatever we can to aid our clients and the public, and I think innovation both in legal services, delivery and regulation is the way to go.

So thank you very much, I look forward to getting your pleasure. Questions. Oh I thought it’s my mom’s hand just not Jen. I know, you were very close to her so I wasn’t sure. Audience member: I noticed I wasn’t the one who taught you. Anyway, so at the beam what do you do giving that faculty grew up in an age of the Mendelian method of teaching and probably very beautiful are had any exposure a lot of what you were talking about as far as the destruction of the legal profession and so what you do with faculty who need to get on board with training in students for the next generation profession when they are themselves not part of that necessary well this is being recorded so I’m very careful and how I head for that question so I I consider myself one of those people the line was in law school the big innovation except people have black not in the classroom it’s big destruction as idea that people were tapping on Keys and pull my goodness so distracted so not like I came with age at a time well as divisions taking place I did but I invested the time and energy to learn because I think a law faculty we have an obligation to ensure that you are is aware as possible about what’s going on in the market signal everyone’s you that unrealistic to note that again so so what games a lot school do and put on a Dean tab I can tell you what we did at Suffolk but we created the Institute and create a concentration the idea behind it is what I would call a parallel track of destruction that is we had all these courses we were not required and faculty to do anything different that they want to participate great we have various sources of income each but we weren’t asking to do anything new we were building these courses and miss Lawson’s wanted capable wonderful and we were fortunate enough to be in a location like downtown Boston dedicated huge number of innovators we could draw on teach those courses as a jump and we have enough members of the faculty who are willing to participate that we would have been able to create a robust program so it means initially I think that’s the way to go about it I think over time as these changes are taking place more and more faculty will embrace them but from now on how I think I’m also a photographer yes what do you think the unbundling you from the spoken it’s done and what kinds of the separating service on computers yeah so unbundle and i think is the concept from my perspective and over it and i think should be permissible I mean carefully structure to protect client interest but the concept of unbundling this idea that a lawyer should not feel obligated when a client comes in to handle the entire matter and might be able to handle it discreet matter for the client and the client can handle the rest on his or her own I think is a very important development and one that does move the needle a bit on access the jumps up to come remotely close to solving problems but using from an ethical perspective should be allowed in most jurisdictions these days yes more think they’re not wanting to be linearly or generally nothing is lost right so i wondered that what is lost in shipping on the traditional Italian model PP acknowledgement info palette kneeling occurrences 40 yeah so there are a number of arguments against this red and they turn on/off questions thought we meeting with the reality happening right so we could either resist it or be a part of it but let’s ask the question is this all recruitment it’s something I do you think something is lost forever hear the argument that I’ve heard against many of these development is that is one way or one science of the sole legal services is so valuable clients really do benefit and they have a competent lawyer representing them that is the ideal solution that is wonderful and yet somebody do that work for you some of the most important work ever done in our nation has been because of that very important relationship and I’m not suggesting that we should never happen I’m suggesting that there are so many people who will never have the opportunity to have that kind of relationship that we need to help them to and innovation is really in my view the only way to accomplish that goal so I don’t want to be the proposed model or the lawyer-client relationship this is here they’re still won’t for it but I think we need to supplement we are really going to serve the public the way that you have an obligation yes you start off by claiming the law and then you’re laying if I stand that you need to promise what plane before was the way that lawyers are being taught or beef but isn’t there another aspect to it when you throughout your bb bb assistance graphs or charts and everything on the right are things that are provided by non-lawyer technology or other professionals maybe one of the things with the law cooler air bubble bath is not cutting down lawyer rad for these you know over the last however many years putting 25 laps double in the market is change the number of law schools of numbers law students is greatly fantasy of making people annual for passion where arguably there are not dispute you’re gone to be additional warriors so I completely agree with you that there will be a need for fewer lawyers in the future relative to the number of lawyers we needed ten years ago and law schools have an obligation to reduce the number of people they are taking it and graduate reality is that we have adjusted so over the last seven to eight years law schools across the country have brought in thirty percent fewer first-year students than they were bringing in at the same point seven or eight years ago that’s a pretty remarkable and dramatic drop my own law school uh drop I think thirty five percent because we feel that we have an obligation to make sure that the people we are getting sure there’s been a decline in applications true and that is driven a lot of it but i do think what we’ve seen over that same period of time or all of these innovations that are going to make it harder for our lawyers in the future and we won’t be as much of a needs with that larger number now i think in the future just thirty percent reduction is that going to be the right number i think we could debate that and I’ve recently put up a blog post analyzing whether that’s the right number and it’s very very difficult to predict with great certainty as it always is about just what the demand is going to be so if you google my name Perlman future of legal education you’ll see my analysis in more detail but i think that percent decline is in fact responding to this development and if we hadn’t done that I think that would be another area for law school bling yes somewhat related to that question very few people grow up looking to deliver some beluga liver we’re on helping bill to income wall but should what we’ll be looking at is if complaining marketing themselves to those who are out there connect out to something and they way through never want to come learn about the wall but also on the thing how you pick that out yet yes yes yes so should lock up so we market ourselves that way we can you get people who are technologically inclined we think they will be a particularly good position there will be fewer jobs for what you are going to be the best position see so we’re marking ourselves that way and some other applause removes all as well in terms of what people imagine that they’re going to do yes we want to help people but I help as many people as possible bottled water the 11 look so relationship sure that’s helping people but might help 10 people but they don’t have a bespoke relationship as those other nine people are helping like that otherwise now Pat earlier I’m feeling pretty good about that and the only way that I can accomplish that and still have a financially sustainable wall practice is if I come up with ways to become more efficient so I think is what I’m suggesting is very consistent with the idea of players who come to law school with the vision of helping people I think you can actually help people more effectively what what how does that no yes where the question was if it’s court authorized and regulated legal service providers how mind that affect people who argue that they received ineffective assistance of counsel and the implication of the question is that you’re talking about criminal law and these new areas for people who are not lawyers they’re not used for criminal law that’s because of the constitutional matter you could not do that so that would be the answer the question I think that there are certain areas from a lot of example recap with the people enough lawyers if you notice i’ve been using the phrase people who are not lawyers as opposed to non-lawyers it’s very deliberate there’s a lot of criticism out their employers using the phrase non-lawyers never hear doctors talk about non doctor or i can take non account and it’s great that I’m not criticizing you in any way so several people use the phrase not lawyers but an interesting that we use that phrase because when you ourselves is really different some other people attention what they do I think we need a really conceptual ship much the medical profession is gone through a shift in thinking about health care service sure doctors are important but there are an array of other professional service providers we should work with doctor.

Zoo when you go to a minute clinic you can get all kinds of health care services without being a doctor I didn’t we need to think that we like that not in the context of law yes white hair wave language this is what about them out right what if we hope doing or malpractice it’s probably an answer really yeah so the example limited license legal technicians in Washington what’s interesting about that program is Washington state required whether the license legal definitions have malpractice insurer how it’s interesting about that is how many states in the country require lawyers to have malpractice insurance you may know the answer 11 state in the country requires lawyers out malpractice insurance oh we are genuine in our concern that clients in the public are protected from people are practicing without malpractice insurance better look at ourselves because we don’t require it avoids except an organ so these new providers at the very least in Washington State the limited license legal technicians if you’re concerned about malpractice your ordinary member of the public you’re better off going to the triple LC this is a lawyer from a malpractice respected much more lovely the personalized health back so I really is an important consideration but there are regulatory ways around it and we also need to think about doing it for ourselves if we were on to second search services okay good i was gonna say we it’s time for you to stop so thank you so much.