Rip it up and start again

The on-going spat over the future regulation of legal services in England and Wales is yet another example of the never-ending turf wars between professional regulators.

As someone who is interested in lawyers’ regulation, but also in legal innovation and technology, I find the whole debate both self-indulgent and archaic. Just how is it relevant to making legal services more accessible and affordable? And, in an era where legal services are (finally) becoming widely available online, who cares about the governance regimes of a group of professions that have their roots in the 19th century?

And this set me thinking. We now live in a world of entity regulation and sector-specific accreditation. Therefore, why not embrace both concepts wholeheartedly? In doing so, we could scrap the vast majority of the current legal services governance framework, with all its duplication, expense, petty politics and dubious commitment to quality standards. Not only could we abolish the SRA and BSB, we could also axe state-sanctioned professional titles, restrictive entry paths into the sector, non competency-based CPD requirements for individual practitioners, and anachronistic rules governing rights of audience and reserved activities. 

In its place, all legal service providers could be placed under a general legal duty to ensure the legal services they offer are delivered in a competent manner. Not only would this duty cover traditional law firms and barristers chambers, but also online legal service providers and entities such as citizens’ advice or trade unions. 

Entities found to have failed in this duty could have a range of sanctions imposed on them, including the withdrawal of the rights of their advisors to appear in court, disbarment of individuals from working in the legal sector, and the closure of entire trading entities. 

To ensure quality standards were maintained, a beefed-up LSB could be reconstituted. However, the LSBs’ role would no longer be to referee between squabbling front-line regulators. Instead, it would accredit new or existing quality standards, institutions – even commercial enterprises - to ensure competency in the legal sector was delivered. These accredited entities would, in turn, periodically test the competence of all legal advisors (of any kind) that a legal service provider (of any kind) employed, on a legal-specialism-by-legal-specialism basis. 

For example, having first established that the regime was capable of ensuring quality, the LSB would be free to tender for a body to administer the new quality assurance scheme for advocates. The winner could be the existing BSB – but it could equally be a commercial entity with relevant experience. Additionally, the LSB could appoint legal specialism-specific institutions, such as the Chartered Institute for Personnel and Development, to be an approved body for accrediting individual legal practitioners – in this example, in relation to employment law.

Alternatively, where sector-specific quality standards already exist, such as those developed by the Council of Mortgage Lenders, the LSB could presume that legal service providers who had been approved by such bodies were competent in that particular legal specialism, unless compelling evidence to the contrary was offered. For both online services, and also providers of “exotic” legal specialisms, individuals or entities could be accredited to manage a peer review process among practitioners – quite a nice role for experts who are approaching retirement. 

For their part, all legal service providers would be required, on an annual basis, to self-certify the competence of every member of their staff who was involved in the delivery of legal advice – including the development of online legal services. It would not be necessary to test the competence of individual advisors on an annual basis – that would be too onerous. However, the provider should be able to confirm annually that all existing accreditations remained valid. 

The exact nature of the legal service provider’s self-certification obligations would depend on the range of legal specialisms they offered. For example, a single legal specialism provider would only be required to provide evidence of competence from a single LSB-approved accreditation scheme. By contrast, a provider offering a range of legal specialisms would be required to provide evidence of on-going competence from multiple LSB-approved agencies. An annual consolidated report, confirming on-going competence in all practice areas offered, would be filed with the LSB in accordance with defined reporting criteria. The self-certification report itself would be a public document. 

I freely admit my suggestion is leftfield, and advocates abolishing much of the existing framework for regulating lawyers that has grown up over many years. But so what? If ensuring quality standards is, genuinely, the key outcome of any professional accreditations scheme, then that outcome should be delivered in the most objective, and cost-effective manner, possible. And, if lawyers’ historical governance structures stand in the way of delivering that objective, they should be swept aside. 

Reinvent Law London – make a date for 2014

If, in June 2014, you get a chance to attend a half-day conference organised by Michigan State and Westminster Universities, I suggest you go. Known as Law Tech Camp London in 2012, and ReInvent Law London in 2013, this event has quickly become the highlight of my legal year. In just over half a day, you’ll see updates from legal market innovators, Dragons’ Den-style concept pitches and mind-bending blue-sky thinking.

In 2012, arguably the most left-field presentation came from Miami Law School’s Michael Bossone who delivered his eulogy to legal service innovation via YouTube. This year, the award for the most “out there” presentation was probably a toss-up between Olivia Zarcate and Lah Leutrim Ahmeti’s. Olivia Zarcate wanted us to understand the law with metaphors, and spread the law with images. Have you ever seen legal practice areas mapped onto the human body? Well, Reinvent Law audience members have.

Lah Leutrim Ahmeti, meanwhile, had a neat idea for a consumer law mobile phone app. The app would allow users to fight their corner with stroppy shop assistants when trying to return goods, by using location-based software to download the shops’ returns polices directly onto the phone. What made Lah’s presentation so different? It was delivered through the medium of interpretive dance. I’ve never seen that method of delivery at an IBA event.

In fact, Lah’s presentation went to the core of what Reinvent Law is all about – using technology to replicate, assist or replace much of what lawyers do in a more efficient way. For example, in 2012 Daniel Katz from Mitchgen State University had introduced the concept of quantitative legal prediction – analysing data contained in past court rulings to advise potential litigants about whether or not they had a case worth fighting.

This year, Don Philbin from Picture It Settled® showed how historical data from thousands of real-life litigated cases could statistically predict how the other side was likely to react to ongoing settlement proposals with up to 80% accuracy. Martin Langan demonstrated Road Traffic Representation, a website that allowed clients to self-diagnose - for free - their likelihood of success when accused of breaching England and Wales’ road traffic laws. RTR’s software could also automatically generate a detailed briefing note for a court advocate, should the client decide to proceed with their case.

Another strong theme of ReInvent Law London was the use of technology to crowd-source justice-related solutions. Westminster University’s Lisa Webley revealed plans to draw on the university’s pool of law and IT students to develop a computer aided diagnostic and legal advice system for members of the public who no longer had access to legal aid. Alice de Sturler, meanwhile, revealed how she used social media to try to generate new lines of police enquiry in “cold cases” – unsolved crimes that took place in the pre-internet era.

Although ReInvent Law was resolutely cutting edge in its outlook, it concluded in a way that reconfirmed the value of old-fashioned human interactions. Following onsite drinks, sponsored by LexisNexis, several of the participants decamped to a nearby pub to continue to debate. But of course, being techies, we’d organised the post-event drinks in advance, using socialmedia. Well, we would, wouldn’t we?

My unexpected Tesco Law experience

I’ve followed the Tesco Law concept since it was a glint in the OFT’s eye. And I also love Richard Susskind’s concept of the latent legal market – the idea that there is a wealth of untapped legal business out there, just waiting to be delivered to consumers at an affordable price by innovative service providers.

 

So, naturally, when my partner and I recently discussed moving in together, I immediately pondered getting a cohabitation agreement from an alternative legal service provider. I admit, that might not sound particularly romantic of me. However, having spent two years studying land and property law as an undergraduate student, I figured it was a no-brainer. We both own our own properties, and both want to clarify where each other stand by living together, both legally and financially.

 

I confess my “quick and dirty” price comparison yielded surprising results – and not in way I expected.

 

First up was good old Lawpack, a bargain-bucket PDF download for £10.20. It comes with some useful guidance about what a cohabitation agreement should contain. But, basically, I would be on my own, in terms of finalising the necessary documentation.

 

Next up was Halifax Legal Express. This provider offered a three tiered level of service. The most basic offering – an interactive, document assembled, solution - cost £99. That’s not cheap, compared with Lawpack alternative, but was certainly more high-tech than downloadable PDF. If I wanted the draft document reviewed by what Halifax ambiguously describes as “our legal team”, the price would be bumped up to £154. And, finally, having the draft document reviewed by a “lawyer” would cost £349 – with email and telephone support and advice thrown in.

 

In terms of more traditional providers, I was naturally drawn to Quality Solicitors – after all, there’s branch on a high street close to me. But here, I hit a snag. The website couldn’t offer me a fixed price up front. Instead, it wanted me to complete a three-stage contact form, so a firm representative could call me back to discuss my requirements. Personally, I’m not a fan of this approach. Ideally, I want to know roughly how much someone is going to charge before I speak to them to get a precise quote. I hate having to fob off potential service providers, when I discover their charge-out rate isn’t competitive. I find it all just too darned awkward.

 

Finally, I reviewed the Co-op’s offering. After all, they’ve recently made a thing about their new family law service, “providing customers with greater accessibility to legal advice and better value for money.”

 

Unfortunately, the gap between the Co-op’s publicity and its actual offering appears to be a yawning chasm. The price of this provider’s cohabitation agreement? A whopping £660, including VAT. That’s almost twice as much as the most expensive Halifax offering - and you can’t even choose a cheaper, self-service option. Basically, you can either phone for advice or, erm, go elsewhere. So that’s precisely what I did.

 

So, there we go. I’m not going to use Lawpack because I’m worried it seems too cheap, however irrational that sounds. I can’t be bothered with Quality Solicitors, because their form-based system for generating a quote is annoying (and potentially embarrassing). And the Co-op? Sorry guys, you’re way too expensive for my budget. Halifax, by contrast, appears to have nailed it, in terms of their service offering and pricing structure. Who’d have thought this particular provider would be a paragon of the new legal market?

 

And there’s the lesson, I believe, for anyone who is interested in the manner in which the UK legal market is evolving. There’s the high level concept - new market entrants should be able to provide innovative legal services at a highly competitive price - and the reality - some don’t.

 

Indeed, in some circumstances, it is quite possible that new market entrants might offer a service that is every bit as inaccessible to your average consumer as the traditional law firms they aim to replace. And, in relation to the Co-op’s cohabitation agreement, this certainly seems to be the case.

 

How disappointing.

Why Richard Susskind should choose your EuroMillions lottery numbers

Way back in 2000, Professor Richard Susskind made a series of predictions about how the market for legal services might evolve, driven by the innovative use of IT. And, over the past few weeks, I’ve noticed that several of his predictions are showing signs of coming true - at least in the UK. If I ever get the chance to speak to Professor Susskind in person, I’ll ask him to pick my EuroMillions lottery numbers for 2024. He might not help me pick the jackpot. But I’ll happily settle for four matches and a lucky star.

 

In his 2000 book, Transforming the Law, Professor Susskind said (on page 29): “By 2015, the main way in which legal service is delivered across the world will be through access to online legal service as opposed to consultation with human lawyers. I still stick to that prediction.” At page 55, he added: “While the larger firms have the investment capability to develop all manner of systems of their own, I anticipate all manner of joint ventures, collaborations, and entrepreneurial exploits by the hungrier, smaller, and sometimes less profitable firms.” And, finally, on page 67, he said: “My prediction is that the great legal businesses of the future will…maintain a blend of online service and traditional service supported by physical meetings with clients.”

Last night, I attended the launch of Rocket Lawyer UK. Rocket Lawyer is a Google-backed combination of automated, online, self-service legal documents, supported by a panel of small and mid-sized law firms. This arrangement pretty much describes Susskind’s vision.

Weirdly, the launch of Rocket Lawyer was the second time in a month that I’d come across a convergence of online legal service providers and smallish, independent law firms. On 9 November, wearing my freelance copywriter’s hat, I attended the LawNet annual conference in Kenilworth, to produce a report of the event.

One of the advertisers at the event was Evident – Simplify the Law™. Evident provides self-service document assembly software to law firms, for those firms to use on a “white label” basis. In reality, the type of firms who attended the LawNet conference probably wouldn’t have the resources to build such software themselves. But Evident’s business model assumes such firms want to offer online legal services to their own clients, and would be willing to partner with Evident to make that happen.

And, of course, in September 2012, Quality Solicitors announced its partnership with the soon-to be launched UK operation of LegalZoom. “The partnership”, the announcement stated, “will see a wide range of legal products and services offered online, combining LegalZoom’s technology with Quality Solicitors’ expert solicitors, who will offer local support and advice from over 400 locations across the UK.”

I can only imagine the look of quiet satisfaction on Richard Susskind’s face when he heard that news.

In reality, it’s unlikely that, by 2015, most clients will use online providers for their legal needs – even in a dynamic legal market such as the UK. But one thing is for sure: we certainly seem to be moving in that direction. What’s more, it seems to be the smaller law firms who are be driving this trend, working in collaboration with legal IT software providers.

In all honesty, this is not a development I’d seen coming, even having read Professor Susskind’s book when it was first published. Instead, I’d pinned my hope on Tesco or the RAC as the main driver of legal service innovation. But I guess that’s because my name is Richard Parnham – and not Richard Susskind.

So, anyway, Professor Susskind, about that 2024 EuroMillions lottery draw….

A tale of two conferences

I attended two conferences on innovation in the legal sector last week. One, hosted by Fox Williams, discussed a survey on the future uses of ABSs, as predicted by 100 commercial law firms. The second, LawTech Camp London 2012, focused on technology as drivers of innovation in the legal market. Geographically, the two events took place within three miles of each other. In terms of mind-sets, with one or two notable exceptions, they were a million miles apart.

Large tranches of the Fox Williams report were shot through with conservatism. The survey revealed how there was little interest in raising funds for a stock market listing by the survey’s participants, and most felt no need to convert to an ABS in order to create a recognised brand identity. Law firm respondents were particularly hostile – or at least apathetic - to forming any kind of “one stop shop”, be that with accountants, insurers, other professions or claims management companies. Telling, the largest barriers to ABS conversion were felt to be “loss of control” (62%) and resistance from partners (51%). Some 50% of survey participants said they had not changed their firm’s management strategy as a result of the Legal Services Act.

By contrast, the LawTech event involved keynote speeches by those who intended to disrupt the UK legal market. Ajaz Ahmed from Legal 365 kicked off his presentation with the self-evident truth that most people dislike lawyers. And, quoting Henry Ford’s apocryphal approach to product development, he essentially told the audience he aims to give clients what they need, and not necessarily what they ask for. Richard Cohen from Epoq, gave a live demonstration of how his company’s document assembly-led system could build, review and deliver a couple’s joint will from a standing start in 45 minutes, at a price point that it could be given away for free as part of a wider bundle of services.

Even the conservative world of local government law was embracing change. Geoff Wild, Director of Governance & Law at Kent County Council, explained how he had turned his legal function from a cost centre into a profit-making organisation, by selling specialist legal services to hundreds of organisations. And, given that overall theme in many presentations was that innovators aim to deliver legal services to the (untapped) “latent legal market”, it was perhaps fitting that Richard Susskind was also a keynote speaker.

For me, one of the most surprising aspects of the LawTech event was the amount of effort that was being put into turning dispute resolution into a commodity product, with little or no lawyer involvement. For example, Tom McGinn, Director of Business Development, VirtualCourthouse discussed the rise of electronic dispute resolution services such as CyberSettle and Mondria.

At the top end of the value chain, Josh Blackman, assistant professor at South Texas Law, recalled how FantasySCOTUS was using crowdsourcing to predict US Supreme Court judgments. At a more granular level, the Harlan Institute and others, including Thomson Reuters, were effectively transforming legal rulings into countless data points, turning the “qualitative into the quantitative”. By capturing data on legal arguments, judges’ decision histories, lawyers’ success ratios and numerous other factors, the end result of this effort was clear: ultimately, technology will allow client to explain their situation to a computer interface, which will tell them whether, based on law and precedent, it would be likely that they would win a legal dispute. Think the iPhone’s Siri, but offering legal advice.

If this sounds like fantasy, several speakers pointed out that IBM’s super-computer, Watson, had recently beaten two past champions of US game-show Jeopardy in a special edition of the show. If computers can be more effective at answering quiz show questions than expert humans, then why can't they be better than lawyers at offering legal advice? And, to reinforce just how standard expert knowledge systems were in other industries, Daniel Katz, assistant professor of Law at the Michigan State University College of Law explained how farmers had been using “almanacs” for years to help them decide when to plant their crops, even though weather patterns are inherently unpredictable. Farmers didn’t expect their almanacs to predict what the weather would be on a particular day, he said. All they needed was a reasonably accurate guide to probability, based on past events, which would help them make informed decisions. Sound familiar?

A final point of comparison between the Fox Williams and LawTech events were their respective takeaways. At the Fox Williams meeting, I was given a glossy, paper-based summary of the report’s findings, and a collection of marketing literature. At the LawTech event, I took away a twitter feed, a blog of speakers delivered in real time by @legalaware, a memorable YouTube video, delivered online by Miami-based legal academic, Michael Bossone – and a headful of new ideas.

And that just about sums up the difference between "innovation" by lawyers, and "innovation" by everyone else.

LETR – don’t waste time suggesting quality standards for unregulated legal advice

Even before the Co-op’s recent announcement that it intends to create 3,000 new jobs in the legal sector, I did wonder whether the Legal Education and Training Review (LETR) work would be overtaken by events. In taking an evidence-based approach of its review of legal education and training, the review is clearly taking a laudable approach to the issue of lawyer standards. But its fundamental problem is this: in England and Wales, like in many other countries, a large percentage of legal “work” is not reserved for solicitors or barristers alone.

In practical terms, this means the LETR can make whatever recommendations it likes to improve legal education and training. But, if the LETR encourages frontline legal regulators to impose new training burdens on their members, the consequences will be eminently predictable. Individual practitioners who advise on unregulated legal matters can simply abandon their membership of their professional body, and carry on exactly as before. In such circumstances, the LETR’s recommendations would have no impact.

So, I have a suggestion for the LETR, which may make their recommendations more likely to have a lasting impact on the legal market: forget about trying to set standards for unreserved legal activities. Rightly or wrongly, parliament, the LSB and clients have already decided that professional accreditation is not needed by advisers who deal with such matters. Instead, focus solely on addressing standards concerns in those areas of the legal market which are reserved for regulated lawyers – and practitioners cannot avoid complying with.

If the LETR follows this narrow approach, then what skills are required from the undergraduate law degree, the GLD, LPC, and the BPTC suddenly becomes much clearer: in future, the focus of both academic and vocational training for solicitors or barristers should be explicitly tailored to give students the skills they need to advise on or more reserved areas of law – even if other topics are also taught.

For students who followed such courses, the ultimate prize for demonstrating their expert knowledge would be a protected professional title, be it solicitor or barrister. And, unlike the more narrowly focused legal professions, such as licenced conveyancers, students who became solicitor or barristers via this route could then have their pick of which reserved activities they could specialise in, so long as they had previously passed the relevant exams. The one requirement for this ongoing flexibility would be that these regulated professions should undertake regular – and meaningful – reaccreditation, either as they switch between reserved specialisms, or as they continued to offer existing ones.

Of course, building a professional title purely around those advisors who offered reserved activities would mean that many legal advisors would never be entitled to call themselves solicitors or barristers. But, in an era when MDPs are now permitted, one has to ask – is this really a problem? After all, in MDP-friendly Germany, the number of generalist “lawyers” is relevantly small – possibly because other, more narrowly-focused “legal” professions, also do “law work”, but still work in partnership with their more generalist lawyer counterparts.

Here in the UK, it’s very easy to imagine a “law firm” where the technical competencies of its advisors are assured by a range of specialist bodies – or none at all - depending on whether or not they offer reserved legal advice. For conveyancing matters, for example, advisors could choose between being quality assured by a (slimmed down) solicitors-led regulator, or via the Council for Licensed Conveyancers. Lawyers who wished to move into unregulated areas may wish to drop out of the regulatory framework altogether. Alternatively, they could demonstrate their ongoing competence via membership of a relevant trade association, professional institute, government accreditation scheme, or by taking industry-specific exams. If one looks hard enough, there is no shortage of both statutory and non-statutory organisations capable of testing legal advisors’ technical skills, many at a highly advanced level.

No-one likes to lose control of quality control standards, especially lawyers. After all, it took years for the Law Society to surrender operational control of solicitors’ vocational training – but standards did not plummet when new providers entered the market. However, the simple fact is that, even before “Tesco law” takes full effect, mainstream legal regulators already have no control over the quality of vast number of unregulated legal advisors. And, by relying on the widely discredited CPD system as a tool for maintaining ongoing competence, it’s even doubtful whether the mainstream English and Welsh legal professions currently regulate the quality standards of their own membership to any meaningful degree.

The LETR review process is an ideal time to the profession, collectively, to admit these facts. Once it does so, then it stands a chance of devising a quality system that bears some resemblance to the way legal advice is actually delivered in this country.