The Law Society of New South Wales (‘LSNSW’) has recently released its flip Report (the Future of Law and Innovation in the Profession). Through submissions and a series of hearings between May and November 2016, the Futures Committee has provided the profession with a readable overview of the contemporary environment for the practice of law in New South Wales. And, I dare say, in the rest of Australia and probably beyond.

 

The Report responds to the exponential rate of change faced by the legal profession, notably through the advent of new technologies. It provides not only a series of key findings, but also a series of recommendations concerning the role of the LSNSW in supporting innovation in the profession.

In this post I provide some initial thoughts on the overarching approach of the Report.

It is trite to say that the legal profession is facing rapid and profound change. This is inevitable, of course, as digital technologies pervade our lives. The reason though behind the flip report (and others like it, see eg England and Wales in 2016 and 2017; Christensen Institute 2016) is the particular challenge for lawyers in dealing with change. Not only are lawyers trained to look to the past, adhering to sometimes ancient doctrine, but we are also trained to be risk averse.

In responding to the concerns of the profession, the flip Report includes a chapter dedicated to ‘New Processes and Managing Change’. But additionally, I think it takes a fairly measured approach to identifying what that change might be, and how the Law Society will ‘[support] transition to the digital age’ (p39). A key recommendation that underpins most of the other recommendations, is that

the Law Society will establish a centre for legal innovation projects, to augment and focus the Society’s contribution to empowering its members to use technology well.

The flip Report does outline key technologies affecting or likely to affect the practice of law: AI, online dispute resolution, big data, blockchain, and so on. It gives a nod to networks also, though not in any depth. It notes – accurately in my observation – the risk for practitioners of becoming ‘overwhelmed by the diverse legal technology market’.

For this reason, the Report has been clever in its method. It has used witness statements about how real practitioners are delivering legal services using technology. This is far more accessible to a much broader audience than delving into the technicalities of diverse technologies. I think that this is a strength of the Report.

The structure of the Report however, reflects much broader concerns than technology per se – although it does situate these sometimes longstanding issues in the context of digital technologies. Thus the Report grapples with billing (the need for value over price), competition (‘new’ multidisciplinary practices, outsourcing, and unbundling services), globalisation, access to justice, litigation procedures, diversity, and regulation (intrinsically tied up with competition). None of these things is new and some seem to have been around forever. (As testament to the pervasiveness of these issues, many are reflected also in the Law Society of England and Wales Report of 2016.)

It’s important to remember also the role of a Law Society. In representing its members it seeks to ensure sustainable business practices. There is certainly an emphasis in the Report on promoting an ‘entrepreneurial spirit’ amongst lawyers, and a business case pervades much of the commentary alongside questions of justice and service.

My overarching impression however, is that for all its benefits this Report does not grapple sufficiently deeply with the way in which technologies will reshape legal services and importantly, that they already have. For example, the question is posed (p43) as to whether we ‘wish to see the standardisation of legal work’ (emphasis added) – where standardisation is (and always has been) the reality of a significant proportion of legal practice.

Despite the examples of new ways of working, of automation, and disruption of legal services, the Report still, I think, harks back to a perception of bespoke legal practice as the norm. This is in my view, a deficiency in the tenor of the Report. Consequently, I wonder whether the Report ultimately serves as a means of protecting the profession as it is rather than contributing as an ‘agent of change’ to its development. This is particularly evident in the chapter on legal education, which makes no recommendations but observes that (p77):

the information and testimony available to the Future Committee were in favour of the traditional black letter law areas of knowledge and lawyer skill sets being maintained. …No existing areas of law or skills were identified as being able to be removed from the law degree, PLT or CLE.

It is unclear to me how change will happen without re-imagining legal education. I will make some more detailed observations about this in a later post.

In an insightful comment, the Report points out that (45):

…futurists imagine not one but multiple possible futures; they evaluate interlinked trends across those potential futures. futurists articulate their own shared values, which underpin policies designed to achieve the particular version of the future that they hope will transpire…

[disagreement about disruption] raises fundamental questions about the nature of law and role of lawyers, a question at the intersection of jurisprudence, ethics and technology…

Although an excellent overview, and very well put together, the Report seems to indicate that the profession may not yet be at the stage of asking these ‘fundamental questions’. At the very least however, it provides a road map that highlights the landscape for the profession to navigate. How it will look at the end is still up in the air.