By Phoebe Churches

If you missed my first post on this topic, maybe head here and read it first. This post takes up where I left off – looking at how the sector is already changing very quickly.

The Contracting Role of Lawyers*

Historically, in Australia and similar common law jurisdictions, ‘legal work’ has been the exclusive domain of ‘lawyers’, and a ‘lawyer’ is generally defined as someone who undertakes ‘legal work’. This circular, self-serving definition has created a closed loop and the creation of a monopoly-based false market for legal work. Unfortunately this market, rather than ‘protecting clients from the exploitation of the inevitable asymmetry of knowledge and power … has actually encouraged and condoned an exploitation of the privilege’.^[1]

Not all legal systems share this definition of course. In contrast to common law’s concept of a lawyer as ‘a single type of general-purpose legal services provider’, civil law systems ‘consist of a large number of different kinds of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts’.^[2] The distinguishing feature of civil systems is their reliance on statute, with judges applying, rather than creating law. The common law system not only creates law, but its dispute resolution process is primarily adversarial, where it is the legal representatives who must research, investigate and present arguments supported by evidence before a passive fact finder. This makes the adversarial system especially opaque and characterised by significant asymmetry in power between client and lawyer.

Technologies’ Role in Equalising Alignment, Balance, and Equivalence

There are three types of asymmetry in the justice system: unequal information about the services a client is seeking and what it is worth; unequal knowledge in the area of expertise for which assistance is sought, and unequal power – which is a function of the preceding two. However, the inequality of information between lawyer and client is beginning to level through the electronic marketplace, with a multitude of start-ups providing prospective clients with accurate and reliable reviews of law firms.^[3] Additionally, big-data driven quantitative analysis can illuminate costings of complex matters to provide far greater cost certainty from the outset.

Lawyers have traditionally played a role as ‘equaliser’ – specialists required to balance this asymmetry of knowledge. However, exploitation of this role has established a market for lawyers that is clearly disproportionate to its need. For example, if lawyers maintain the rule of law, the fact that the United States has ‘17 times the number of lawyers per capita as Japan’, ^[4] should mean that the American rule of law is 17 times as effective, and Americans 17 times more protected than Japan. This is an assertion which appears to be wholly unsupported by evidence.  In fact, a recent study of 30 years of legal development in 22 countries ‘shows that in every instance, the population of lawyers is growing faster than the underlying population’.^[5] In response to this oversupply ‘lawyers have created an artificial market for their services’,^[6] creating work to do ‘by encouraging the spread of law into areas that were not necessary … and in which they have been protected by unnecessary and unreasonable regulatory barriers’.^[7] Ultimately, this oversupply and the attendant over-reach of the legal market has created fertile grounds for disruption and the previously monolithic legal sector is segmenting in a way which means there is no longer any reason for many of these disaggregated tasks to be restricted to lawyers.

Increasingly advisory, facilitation and transactional practice is being subsumed by other indemnified professionals: accountants are providing tax advice, conveyancers are conducting property transactions, employment and industrial relations matters are handled by Human Resources Consultants. Many facilitation services have already been integrated into a range of technology enabled companies providing online access. It is possible to set up company structures or create self-executing smart contracts stored on the blockchain faster and more securely online than ever before. In the near future we can expect to see more platforms allowing a growing range of online transactions; from the resolution of consumer or welfare rights disputes; the creation and facilitation of wills, probate, and estate matters; to complete property transactions and company management.

That leaves litigious and prosecutorial work as the last bastions of the practicing lawyer – yet even this space is contested.** Reform of civil litigation legislation has curtailed personal injury work, ^[8]  eDiscovery is encroaching on many pre-trial tasks, and legal research, also a backbone of litigation, can be largely automated. Court appearance work is also being eroded by the increasing spread of tribunals and commissions, including the Fair Work and Human Rights and Equal Opportunity jurisdictions, ^[9] and alternative dispute resolution in which lawyers are often regarded more as a hindrance than a benefit.^[10] The private sector is also eroding the litigation domain, with online platforms such as eBay and Airbnb containing their own arbitration systems, displacing as far as they can, the jurisdiction of local courts. In the near future there is no reason that a range of civil dispute resolution tribunals cannot also move their functions to online platforms which ‘can adjudicate small claims … as an alternative to court’ and without lawyers.^[11] Additionally, there are a range of ways in which the sorts of issues currently giving rise to liabilities will no longer eventuate in the first place. For example, legal requirements are becoming embedded into our working and social lives,^[12] including building designs which pre-emptively identify and correct environmental hazards, and plant equipment which automatically conforms with OHS requirements.

It seems inevitable then that increasingly the role of lawyers will be confined to officers of the court addressing only ‘David and Goliath’ issues.^[13] That is, those disputes between individuals featuring significant power disparities, and disputes between individuals and more powerful institutions which remain tied to the adversarial system.^[14] Likewise lawyers will remain needed in the prosecutorial space – where the potential tyranny of the state puts individuals’ human rights at stake. Beyond that, here come the robolawyers.

Previously: The Context – The ‘Post’ Society | Next time: SkyNet, Tech Singularity and the End of Lawyers

*See what I did there?

** Oooh, I did it again!

[1] Stephen Mayson, ‘Restoring a Future for Law’ (October 2013), 3.

[2] Balin Hazarika, ‘Role of Lawyer in the Society: A Critical Analysis’ (2012) 1 The Clarion 148, 149.

[3] See e.g. D. Casey Flaherty, ‘Client-led Change: Toward a More Perfect Legal Market’ (9 May 2016) 3 Geeks and a Law Blog.

[4] Rutger Bregman, Utopia for Realists (2016), 5.

[5] Marc Galanter, ‘More Lawyers than People: The Global Multiplication of Legal Professionals’ in Scott L. Cummings (ed), The Paradox of Professionalism – Lawyers and the Possibility of Justice (2011), 72.

[6] Mayson, above n 14, 3.

[7] Ibid.

[8] Commonwealth of Australia, Review of the Law of Negligence (2002) – commonly known as the Ipp review.

[9] See e.g. Fair Work Act 2009 (Cth) s 596, which limits representation of applicants and respondents in the Fair Work Commission.

[10] Michele R. Pistone & Michael B. Horn, ‘Disrupting Law School: How disruptive innovation will revolutionize the legal world’ (March 2016) Clayton Christensen Institute White Paper, 6.

[11] Ibid.

[12] Richard Susskind & Daniel Susskind, The Future of the Professions (2016).

[13] Australian Government Productivity Commission, ‘Access to Justice Arrangements’, Productivity Commission Inquiry Report Overview (No. 72, 5 September 2014).

[14] Such as federal discrimination law system, matters can only be heard in the very formal Federal Courts or Federal Magistrates Courts