In August, 2014 the American Bar Association appointed a commission to examine the reasons why meaningful access to legal services remained out of reach to the vast majority of Americans.

The Commission on the Future of Legal Services was further charged with developing recommendations, including the use of technology, to ensure that both lower and middle income people would have access to legal services in the years ahead.

This week, at the ABA Annual Meeting in San Francisco, the commission released their “Report on the Future Legal Services in the United States.”

What struck me reading the report was that none of the 28 members of the commission were technology entrepreneurs who founded, guided or participated in legal technology companies or startups focused on the delivery of legal services. Most of the members appeared to be legal professionals from law firms, law schools and courts.

Technology and innovation is being driven in this country by innovative companies the likes of Facebook, Uber, Google, Amazon, Salesforce, Tesla, and IBM. Imagine a world without the value and conveniences they have brought us.

Maybe legaltech does not have such roster, but what about Avvo, LegalZoom, Fastcase, Justia and Clio, to name a few. Through the use of technology, these companies and their executive teams have done an awful lot in making legal information and legal services more accessible. They are going to accomplish a lot more in the years ahead.

Like other technology companies, legaltech companies not only work with technology day in and day out, they also look at how alternative technologies are being used by others. These companies abhor inefficiencies and look to technology to bring efficient solutions so as to improve people’s lives.

Yet no one from a legaltech company on the commission.

The commission’s findings were sound, perhaps obvious:

  • Despite sustained efforts to expand the public’s access to legal services, significant unmet needs persist.
  • Advancements in technology and other innovations continue to change how legal services can be accessed and delivered.
  • Public trust and confidence in obtaining justice and in accessing legal services is compromised by bias, discrimination, complexity, and lack of resources.

But among the eleven laudatory recommendations, there was only one reference to technology, that being that “All members of the legal profession should keep abreast of relevant technologies.”

Individuals should have regular legal checkups, the criminal justice should be reformed, the ABA should establish a Center for Innovation and resources should be vastly expanded were among other findings of the commission. But nothing specifically recommending the innovative use of technology and detailing how it could be done.

Though the concept of “legal startups” is acknowledged by the commission, their impact is dismissed by reporting that such companies providing innovative products or services to improve the delivery of legal services were “essentially nonexistent a decade ago” and that “little data exists to accurately assess the impact of legal startups.”

Legal technology startups sprang up twenty years ago. What about FindLaw, Prairielaw (later the legal information and community of LexisNexis’ lawyers.com), Richard Granat’s MyLawyer.com and FreeAdvice? These companies and others leveraged the net to deliver legal information and enable people to select an affordable lawyer in an informed fashion.

Little data exists to assess the impact of legal startups? Just turn on Mike and Mike on ESPN, where each morning millions of Americans are told to turn to LegalZoom for legal information, forms and, in 48 states, the name of an “independent lawyer” to speak with at a price you can afford.

What about Avvo with profiles of 97% of the lawyers in this country, 250,000 lawyers using the service, 8 million legal answers, the ability to talk to a lawyer for $39 and a legal services plan which delivers legal services at a low flat in a growing number of states. Avvo played a big role in driving a 150 year old legal directory (Martindale-Hubbell) out of business.

One reason that state bar referral programs are hurting are the alternatives Avvo and LegalZoom offer. Alternatives seamlessly and easily available on a smartphone in your pocket or purse. Services average Americans feel more comfortable with than calling a lawyer directly.

I am sure the commission membership plus special advisors, liaisons, reporters, and ABA staff worked countless hours over the last two years. Their findings and recommendations were well intentioned.

But without the active participation of technology innovators, entrepreneurs and leaders, how can you hope to make recommendations on delivering the future of legal services? It’s almost as if the ABA and the commission wanted to keep legaltech companies at bay.

The commission, in the introduction to their report, recognized the need for technology and innovation in addressing the legal services chasm.

The justice system is overdue for fresh thinking about formidable challenges. The legal profession’s efforts to address those challenges have been hindered by resistance to technological changes and other innovations. Now is the time to rethink how the courts and the profession serve the public. The profession must continue to seek adequate funding for core functions of the justice system. The courts must be modernized to ensure easier access. The profession must leverage technology and other innovations to meet the public’s legal needs, especially for the underserved. The profession must embrace the idea that, in many circumstances, people other than lawyers can and do help to improve how legal services are delivered and accessed.

However, I question their statement that the ABA is uniquely qualified to deliver.

The American Bar Association is well positioned to lead this effort. The ABA can inspire innovation, suggest new models for regulating legal services, encourage new methods for delivering legal services and educating lawyers, and foster the development of financially viable approaches to delivering legal services that more effectively meet the public’s needs.

Rather than let legaltech companies, who at times may have interests that conflict with the ABA and practicing lawyers, drive access to legal services through innovation and technology alone, why not seek the participation and guidance of legal tech leaders?

Otherwise the ABA is going to lose credibility on this front and ultimately fail lawyers and the people we serve.

  • Toby Brown

    My old post gives a short, but accurate description of the value of bar association task forces (a.k.a. commissions) This one performed “according to plan.” http://www.geeklawblog.com/2015/02/the-profession-is-doomed.html

    • It’s sad, but true that the ABA committees themselves to death. Good lawyers and other professionals who only know to lead by action get demoralized when working with the ABA and never return.

  • Will Hornsby

    Kevin, this will come as quite a surprise to legaletch entrepreneur Marty Smith (http://legalrefresh.com/about-us/) who was one of the most engaged Commission members throughout its two years.

    • No respect to Marty at all, Will. Bright innovative guy dating back to the days of Preston Gates through at least a couple legal tech startups and counseling other tech startups. He wasn’t on the roster of Commission members as presented by the ABA. I believe he was among the liaisons and advisors – not to diminish his views and engagement.