Phoebe Churches

Tech Disruption and the Future Role of Lawyers (part 4)

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By Phoebe Churches

In the final post in this series on lawyers and tech disruption, we look at the way forward. If you missed the previous three posts, you can catch up on the first one here, part 2 here and part 3 here. This post looks at

The New Frontier

The Last Law of Robotics: The only real errors are human errors.

The traditional role of lawyers will continue to contract due to the interplay between the power of network technology and AI; the highly competitive legal market; and the innovative unbundling of legal services. The rise of the informed consumer, the development of the sharing economy, and the demand for cheaper and more efficient legal services has created a huge opportunity for tech savvy innovators. Overall there will be far fewer employed in the traditional legal profession, and those who remain will do so in much more specialised areas concentrated in sophisticated litigation and prosecutorial work.  In fact, there will be far fewer people employed generally, with the link between labour and wages weakening as machines do more and more of our work. [2] This means that now is the time to review legal education and the likely prospects for law graduates.

Issues for Legal Education and New Graduates

The role and utility of lawyers is shrinking. The attenuation of traditional legal work is reflected in data on graduate employment. [3]  Recent surveys indicate more than 10% of private firms did not recruit any new graduates in the preceding year,[4] and generally rates of employment for new law graduates has declined from 92.9% in 1999 to 75.3% in 2014.[5] While fears of a graduate oversupply ‘crisis’ are cyclical and tend to go lockstep with economic downturns,[6] in the past increasing demand has eventually taken up the slack. Currently however, the profession is facing unprecedented disruption and competition, and there is no doubt that opportunities for graduates in the profession as we knew it have diminished.[7] Moreover, for those already in the profession as newly minted lawyers, the opportunity to learn on the job has declined steeply, displaced by legal process outsourcing and in-house automation of routine tasks.[8]

Additionally, there have been various responses in the sector to the requirement to become more tech savvy and digitally fluent. Universities are offering subjects in App development and other applied technologies.[9] The Australian College of Law has just launched an innovation hub creating ‘new short courses and programs aimed at equipping lawyers to capitalise on opportunities created by industry flux’.[10] Some firms are trying to get ahead of the changing skillsets needed by providing in-house crash courses on coding.[11] However, perhaps most critically, current law students need to be taught about the future of legal practice so they can plan accordingly.

There is no evidence that law graduates will soon be unemployed or unemployable.[12] For many years law has been a generalist degree allowing graduates to find employment in diverse roles beyond the legal sector. There are also many areas in the community legal sector which struggle to find new recruits. However, given both the increasing specialisation of legal roles, and the likely utility of a law degree which is more generalist in nature, a requirement to learn more than 11 areas of law seems unnecessary.[13] Permitting more specialisation at law school in conjunction with a solid grounding in general legal principles, will better equip law graduates for the changing legal landscape.

Conclusion

Lawyers have enjoyed a role which they have largely constructed for themselves. This traditional role has been further buttressed by excessive and disproportionate regulatory barriers. Traditional legal roles must necessarily give way as many tasks can be performed competently, more cheaply, and effectively by professionals without a legal qualification. Technology, which can already outperform humans in many areas of legal work, will carve out its own role, and lawyers will need to concentrate on dealing with the arcane ways of court appearance work in this new world.

Change, especially rapid and dramatic transformation, brings fear and resistance. However, radical change to the traditional role of lawyers has the potential to bring many improvements. Technology-wrought automation will change the link between wages and labour, with paid employment generally decreasing over time. Tech innovation will bring greater access to the justice system by a wider range of people, and automation of many areas of life will bring the extension of leisure time and more meaningful pursuits. In the context of real potential for positive change, I for one, welcome our new robotic overlords.

Previously: SkyNet, Tech Singularity and the End of Lawyers

[1] Source unknown.

[2] The concept of a universal basic income has garnered increasing currency with both ends of the ideological spectrum; see e.g. Mark Liddiard, ‘Could the idea of a universal basic income work in Australia?’ (2 June 2016) The Conversation.

[3] Paul Young, ‘Are Law Schools Producing Too Many Lawyers?’(2014) 88 Australian Law Journal 367.

[4] Graduate Careers Australia, Graduate Outlook Survey 2012: Summary Report for Legal and Professional Services Employers.

[5] Graduate Destination Survey, Gradstats Reports 1999–2014.

[6] Angela Melville, ‘It is the worst time in living history to be a lawgraduate: or is it? Does Australia have too many law graduates?’, (2016) 50 The Law Teacher 1.

[7] Ibid.

[8] Richard Susskind, ‘Provocations and Perspectives’ A working paper submitted to the UK CLE Research Consortium

(Legal Education and Training Review) (October 2012).

[9] See e.g. The Melbourne Law School’s Law Apps subject.

[10] Samantha Woodhill, ‘College of Law launches innovation hub’ (6 June 2016) Australasian Lawyer.

[11] Samantha Woodhill, ‘Why this firm is teaching lawyers how to code’, Australasian Lawyer (27 May 2016).

[12] Melville, above n 54.

[13] Miller, Katie, ‘Disruption, Innovation and Change: The Future of the Legal Profession’ (December 2015) Law Institute of Victoria Report.

 

 

 

 

 

Tech Disruption and the Future Role of Lawyers (part 3)

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By Phoebe Churches

This is the third post in a series on this topic. If you missed the first two, you can catch up on the first one here and part 2 here. This post looks at

SkyNet, Tech Singularity and the End of Lawyers

“I don’t blame you,” said Marvin and counted five hundred and ninety-seven thousand million sheep before falling asleep again a second later.[1]

So far this discussion has focused on the contracting role of lawyers, and the indications that this contraction will continue apace. Now I want to look at how close this event horizon might be. There are differing views on the immediacy of impacts of automation and technological change on the legal sector. From one side, a headline screams ‘Robots replacing lawyers a ‘near certainty’,[2] and a Deloitte Insight report claims ‘that 39% of jobs (114,000) in the legal sector stand to be automated in the longer term as the profession feels the impact of more “radical changes”’.[3]

On the other side experts at the Massachusetts Institute of Technology tell us that ‘[a]utomation is advancing, but we are still far from the day when machines can do complex physical and mental tasks that are easily and cheaply done by humans’.[4] Similarly, an attendee at the CodeX Future Law Conference at Stanford Law School in May this year recounts much discussion teasing out the difference between ‘what’s real and what’s marketing buzz in artificial intelligence’.[5] A quick survey of Twitter dialogue hash tagged #futurelaw discloses general agreement that the role of Artificial Intelligence (AI) for the foreseeable future will be to assist lawyers rather than replace them. There is some consensus that ‘the notion of the robot attorney is pretty much hype and we still have a long way to go to realize the potential of a fully AI attorney’.[6]

The Tech Paradox

One of the paradoxes of technology is that “simplification complicates”, that is, the more technology you throw at the problem in order to simplify it, the more complex it actually becomes.[7]

While automating transactional processes and other areas of simple decision making has already been a particularly effective tech intervention, complex decision-making processes are still not especially well suited to automation.[8] Moreover, some claims about technology really need to be properly put to the proof. For example, the facial analysis software which can purportedly pick criminals and terrorists by their visage sounds a bit too much like phrenology for comfort.[9] Similarly, apparently accurate predictions can prove to be a fluke. The potential for complex systems to rely on the wrong data is a stark reminder of the shortcomings of current AI. One anecdote which provides a good example is the AI system designed to detect the difference between dogs and wolves. After ‘training’ the system, it had a hit rate of close to 100%. Unfortunately, the system was simply detecting the presence of snow as a common element in all of the wolf photos, where the dog pictures featured none.[10] There are also troubling possibilities brought about by operator error and/or bugs introduced during coding of systems. These are not trivial concerns in the context of legal processes, and it may be a long wait for ‘the arrival of ultra-reliable and verifiably crash-proof code … a holy grail in the development of increasingly complex systems’.[11]

Ultimately though, these issues are about the rate of progress, rather than the inevitability of change. The writing on the wall is clear. Humans are no match for machine intelligence and efficiency in an enormous range of tasks. For example in the 80s and 90s, a large chemical company ran work done by its in-house legal staff through new data-mining software and found a human accuracy rate of only 60%. That is a lot of money spent on salaries for outcomes only ‘slightly better than a coin toss’.[12] It is indisputable that data-driven models can help make better legal decisions; yet, for the moment at least, and ‘for the appropriate tasks, the age of quantitative legal prediction is a mixture of humans and machines working together to outperform either working in isolation. The equation is simple: Humans + Machines > Humans or Machines’.[13]

The Regulatory Challenge

There is another factor limiting the speed of development in the sector: the full impact of rapid technological development continues to be throttled by slow regulatory change. Current regulatory barriers compromise services to consumers on both ends of the spectrum – on one end, entry barriers have created the monopoly which has facilitated a false market in legal services, and has limited competition from outside the sector which might otherwise weed out slapdash or underperforming firms. On the other end of the continuum, services in the unregulated space can enter the market unimpeded, providing all manner of products and services to unwary consumers with relative impunity.

While America is yet to reform its regulatory framework which enacts substantial barriers to entry and practise, the UK and to a lesser extent Australia have undertaken reforms to allow alternative business structures (ABSs). However, these reforms will need to go further as technology increasingly pushes the existing boundaries of regulation.[14] The Legal Services Board and the Solicitor’s Regulation Authority in the UK are actively promoting extensive regulatory reform to accommodate increased segmentation in the legal services market.[15] In Australia, incorporated legal practice and multi-disciplinary partnerships have been permitted for some time, however these models are still tightly confined by the regulatory framework.

The need to tread a careful line between freeing up the sector to embrace change, and protecting clients and society generally accounts in part for the sluggish rate of change to regulation. Witness the story of Justin Wyrick Jr who, in 2000 became the most asked for legal expert on AskMeHelpDesk.com. ‘Justin’, as it turns out, was in fact Markus Arnold, a 15-year-old secondary student who had never opened a law book in his life.[16] Mr Arnold was not prosecuted, to the American Bar Association’s abject horror, however his efforts are a pretty clear indication that consumers need some protection. Free online services are not currently regulated by consumer laws, so minimally we need some accreditation based regulation as assurance so the community can have some faith in what its (not) paying for.

At the other end of the spectrum, regulation unnecessarily interferes with potential improvements to the accessibility of the legal system. For example, in the US State of Florida, Rosemary Furman assisted people wanting a divorce by preparing and filing the necessary legal forms for $50.[17]  Ms Furman had previously done this work as a legal secretary under the supervision of an attorney who charged $300 to complete the same work. She thought the cost of filing for divorce was unconscionable, particularly for women unable to afford to leave violent relationships. [18] Unfortunately Furman was a victim of her own success, because her business attracted the attention of the Florida regulators who sentenced her to 120 days in gaol for her efforts. It was only by intervention of the Governor that she did not actually serve time.

Ultimately in the context of a disaggregated sector, regulators need to find ways to protect the interests of clients, but without erecting unnecessary barriers to entry, and constricting innovation. This has not proven a problem for the legal work increasingly undertaken by accountants and conveyancers. It is difficult to see why there is any barrier (other than the self-interest of lawyers themselves) to employing the same flexibility to encompass the increased segmentation of the legal sector. Mayson makes the case for ‘maintaining sector-specific regulation, rather than leaving legal services to be covered only by general consumer and competition protection’.[19] Where the stakes are particularly high for clients, such as ‘the potential for irreversible loss, misuse of clients’ funds, or abuse of a privileged relationship’,[20] there needs to be specific consumer protection, above and beyond the current regime. One way or another, regulators must recognise that the unbundling of legal work has at once opened up opportunities to address unmet legal need, and a potential space for the uninitiated and unannointed to wreak havoc.

Previously: The Contracting Role of Lawyers | Next Time: The New Frontier

[1] Douglas Adams, The Hitchhiker’s Guide to the Galaxy (1982).

[2] Miklos Bolza, ‘Robots replacing lawyers a “near certainty”’ (22 Feb 2016) Australasian Lawyer.

[3] Deloitte, ‘Developing Legal Talent: stepping into the future law firm’, Insight Report (February 2016).

[4] Timothy Aeppel, ‘Be Calm, Robots Aren’t About to Take Your Job, MIT Economist Says’ The Wall Street Journal (25 February 2015).

[5] Miguel Willis, ‘Robot Lawyers: Kill Law Jobs or Augment Expertise?’ (24 May 2016) The Innovative Law Student .

[6] Ibid.

[7] Frank McKenna, ‘In the zone: Is technology helping or hindering lawyers’ decision making?’ (September 2013) LexisNexis Australia Discussion Paper.

[8] Ibid.

[9] Debra Cassens Weiss, ‘Company claims its technology can pick out criminals by facial analysis’ American Bar Association Journal (24 May 2016).

[10] Ibid.

[11] International Legal Technology Association, ‘Legal Technology Future Horizons – Strategic Imperatives for the Law Firm of the Future’ (Report, 2014).

[12] Bregman, above n 18, 12.

[13] Daniel Martin Katz, ‘Quantitative Legal Prediction—Or—How I Learned to Stop Worrying and Start Preparing for The Data-Driven Future of the Legal Services Industry’ (2013) 62 Emory Law Journal 909, 929.

[14] Steven Mark &Tahlia Gordon, ‘Innovations in Regulation—Responding to a Changing Legal Services Market; (2009) 22 The Georgetown Journal of Legal Ethics 501.

[15] See e.g. Legal Services Board, A blueprint for reforming legal services regulation (September 2013); and Solicitors Regulation Authority, SRA Regulatory Reform Programme Improving Regulation: proportionate and targeted measures (April 2015).

[16] Clifford Winston, Robert W. Crandall and Vikram Maheshri, First Thing We Do, Let’s Deregulate All The Lawyers (2011).

[17] George C. Leef, ‘The Case for a Free Market in Legal Services’(October, 1998) Policy Analysis No. 322 – the CATO Institute, 1, 2.

[18] Ibid.

[19] Stephen Mayson, ‘Beyond the Legal Services Act’ (27 July 2015).

[20] Ibid.

 

Tech Disruption and the Future Role of Lawyers (part 2)

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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

Tech Disruption and the Future Role of Lawyers (part 1)

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By Phoebe Churches

Over the course of a few posts I would like to share with you some thoughts about the future of legal practice.  Specifically, I want to look at what future roles will be available to lawyers as technology develops at an increasingly rapid clip (tech disruption is the current buzz term). This rapid tech development has become a ‘disruption’, not least due to the multiple pressures on the legal sector coming from both within, and without. There’s much to consider, and I would like to set them out here over a few posts, so bear with me.

Without doubt, technology is driving change everywhere, and the current rate of technological advancement is unprecedented. We have entered the fourth industrial revolution which is both driving and driven by significant changes to the socio-political and economic environment. In this context, labour in all its forms will be irrevocably changed; and the role of lawyers is no exception. Undoubtedly the next few years will see these transformations multiply exponentially. In this context I’d like to explore what role Australian lawyers might  play in the future. I am especially concerned with legal work which involves relationships and disputes between Individuals and Individuals; Individuals and Corporations; and Individuals and the State. I’m m particularly interested in this part of the legal sector because – in contrast to disputes between corporations – or between corporations and the state, relations involving people potentially feature the most significant disparities in capacity to enforce legal rights.

Unfortunately much commentary on this topic tends to view the legal sector as a monolithic whole – without distinguishing between corporate (or BigLaw) business and the bread and butter of small practice, the community sector and the individual. Lumping the whole of legal practice into one discussion distorts the picture. I hope the following will offer a more focused opinion and a more nuanced view of one specific segment of legal work. Over the next month or two I hope to look at the context for the rate and progress of change in the legal sector, explore the impact of technologies on lawyers’ traditional roles, and close with an agenda for addressing future challenges.

The Context – The ‘Post’ Society

Tech disruption, the resulting changes to the way work is performed, and the environment which produces these changes aren’t separate or linear; they interact causally in iterative and organic ways. Historically the legal sector has been particularly change resistant, however the current economic context goes some way to explaining why disruption has finally come to the role of lawyers.

By creating millions of networked people…with the whole of human intelligence only one thumb-swipe away,
info-capitalism has created a new agent of change in history: the educated and connected human being.[2]

OECD countries have now passed the threshold of the post-industrial society. Fewer and fewer workers globally are involved in manufacture, and a rapidly growing number are employed in the service sector. In tandem, some pundits predict major changes to the political economy, asserting that capitalism has become increasingly unstable and unsustainable; potentially bringing the world to the verge of a post-capitalist era.[3] Undoubtedly technology is a significant catalyst for these changes. The ubiquitous spread of online resources, data, and information has created an inherent contradiction ‘between the possibility of free, abundant goods and information; and a system of monopolies, banks, and governments trying to keep things private, scarce and commercial’.[4] New forms of collaborative production – for example creating and sharing goods and services by network technology which only functions because it is free or shared – must definitively disrupt the market system.

The Sharing Economy

Law is too important to be left to lawyers alone.[5]

Sharing free information is hardly new. In fact thirty years ago, at the height of a burgeoning ‘knowledge is power’ movement, initiatives to freely share knowledge were everywhere. The hippies and lefties and other bohemian types were busy trying to level power imbalances between corporations and people, the state and individuals, and lawyers and laypeople. In 1976 the United States saw the advent of the ‘law commune based on destroying the mysticism which the law holds for many people and explaining how it relates to their lives’.[6] The same era saw the beginnings of the Community Legal Sector in Australia with an agenda of Community Legal Education squarely aimed at demystifying the law for the masses. These initiatives were (and continue to be) based on an understanding that the more informed people are, the more likely they are to either avoid legal problems, or alternatively, the better they can resolve issues without professional assistance.

More recently, a technology driven ‘sharing economy’ has emerged through our constant connectedness. The consequent ‘democratisation of knowledge’ has given birth to a new business subculture. Given markets rely on scarcity, the enormous growth of free and plentiful information “goods” ‘are corroding the market’s ability to form prices correctly’.[7] Tied with the rise and rise of collaborative production, the market for information has irrevocably changed. For example, Wikipedia is the ‘biggest information product in the world’ and it is collaboratively produced by around 30 000 people for absolutely nothing.[8] It is hardly surprising that individuals are questioning the hitherto high price of accessing legal information.

The Justice Gap and Non-Consumption

Meanwhile, the access to justice crisis for individuals in Australia has been deepening.[9] Australia has no safety net for legal help. While successive governments have eroded funding to legal assistance to the point that only those on very low incomes can access these services,[10] by virtue of the rigid system of legal practice regulation, the legal profession has retained a virtual monopoly across all types of legal practice; from advising through facilitation and transaction services to litigation. Additionally, geography plays a significant role, with regional and remote areas often suffering from very poor access to services.[11]

Even among those who can afford to pay, many resist or attempt to avoid engaging a lawyer in favour of self-service or alternative types of assistance.[12] Decreasing legal service consumption has many causes. Chief among them are clients’ declining confidence that they are getting good value for the price, and their increasing options to meet legal needs without engaging a lawyer at all by purchasing unbundled or online services. We are in an information revolution. Technology has put at our fingertips an unprecedented amount of responsive and organised information which potentially enables us to resolve many legal matters without involving lawyers. This is already a feature of many of the growing online legal presences – from blogs to document delivery services.

Next time: The Contracting Role of Lawyers (geddit?)

—

[1] Klaus Schwab, ‘The Fourth Industrial Revolution: what it means, how to respond’ World Economic Forum, Global Agenda (14 January 2016) .

[2] Paul Mason, PostCapitalism – A Guide to our Future (2016), 21.

[3] See e.g. Thomas Piketty, Capital in the 21st Century (2014); Mason, ibid.

[4] Mason, above n 3, 25.

[5] Eddie R. Hartman tweeting about the Future Law 2016 Conference at Stanford University.

[6] S. D. Ross, ‘The Role of Lawyers in Society’ (1976) 48 The Australian Quarterly 61.

[7] Mason, above n 3, 16.

[8] Ibid.

[9] Community Law Australia, Unaffordable and out of reach: the problem of access to the Australian legal system (Report, July 2012). According to the World Justice Project, Rule of Law Index 2014, this is equally an issue internationally, with the United States, Kyrgyzstan, Mongolia and Uganda all roughly ranked equally on the basis of the affordability and accessibility of its civil justice system.

[10] According to the Attorney-General’s Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, ‘98 per cent of legal aid recipients [receive] an income that could be considered below the poverty line. This leaves much of Australia unable to afford legal representation but nevertheless ineligible for legal aid’, at 52.

[11] Ibid.

[12] Legal Services Consumer Panel, 2020 Legal Services How regulators should prepare for the future (November 2014).

The Critical Lawyer

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by Phoebe Churches

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By this I don’t mean the senior partner you had during articles or clerkship or the Magistrate looking at you through semi-closed eyes during your very first appearance.*

I am talking about Critical Legal Theory in practice.

I came to the law after a lengthy stint in social work, working with some of the most vulnerable and disadvantaged in the community. Accordingly at law school – I was a bit of a fish out of water as a left, feminist, progressive type – and I really dreaded the impending requirement to complete core subjects such as Company Law.

When the first seminar of Company Law rolled around, I sat listlessly contemplating the weeks of boredom stretching out into eternity before me. The lecturer lost no time discussing the first piece of assessment. Ho hum. How would I wade through this miasma of…wait, what? A surprise. It was an essay, no, that’s not at all surprising – but the focus of the assignment was like a bolt literally out of LEFT field. The topic of that essay was: ‘It is often said the law is politics. This statement is applicable in corporate law as well. Explain and discuss this statement with particular reference to Australian case law and legislation’.

My paper read something along the lines of: it is an absolute legal fiction that the law is blind and it certainly does not operate in a social vacuum; on the contrary – the law works to preserve and entrench social and political inequality.‡ So, one award winning† Marxist analysis of the theory of the corporation and the doctrines of separate legal personality and limited liability later – my faith in the potential for the practice of law to be a tool for social change was restored. I was encouraged that I could perhaps become a happy lawyer, ducking the angst and depression so endemic in the field by making a meaningful contribution towards social justice.

So, how can working for social change make you happy? The practice of gratitude has been championed by the mindfulness movement for some time as a way to help bring happiness and balance into our lives. If you are looking for ways to keep perspective and feel gratitude, I recommend spending time with people who have had it much harder then you. Critical Legal Theory looks at strategies for getting the law to work towards social change and more socially just ends.

My journey was not a long one. I came from the community sector so I didn’t have a Road to Damascus moment. However my journey did go via the Critical Lawyers Handbook which must be a roundabout to Damascus St for many. In any event, regardless of what else I may do, I cannot foresee a time when my life will not be anchored by work in Community Legal Centres or not for profit services for the most vulnerable in our community such as the ASRC.

What will you do?

[*] The one who scratched red marks and annotations over every single word in your letter of advice or contract clause.

[†] I really did win the Company Law prize that year.

[‡] If you find this notion challenging or resonant and would like to explore further – here is a select reading list to get started: Hugh Collins, Marxism and Law (1984) and R.W. Connell, Ruling Class Ruling Culture – Studies of Conflict, Power and Hegemony in Australia Life (1977).

Lawyers of the world unite – trade unions and the legal profession

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by Phoebe Churches

Chains

Lawyers and Unions+

When I say ‘lawyers and trade unions’ in the same breath, you might immediately think of one of the big labour law firms. You know, the firms which have historically backed the union movement and focused on employment law – for other workers. Indeed that is an interesting history…but perhaps for another time. This time I want to talk about lawyers and trade union representation.

There is a great deal of commentary on the eternal work-life balance battle in the legal profession. Is it particularly bad for lawyers or are we lagging behind in this area?

It would be overstating it to say that the battle has been won in other fields, however the trade union movement has been collectivising and fighting on a number of fronts in the battle for work-life balance since early last century. Trade unions were originally started by workers to collectivise and create a stronger voice in the workplace to improve a range of conditions, not just for themselves, but also for other non-unionised workers.

When you think of our current struggle for work-life balance in the legal profession, you might also consider how life was for all workers before the 8-hour day, holiday and sick pay, superannuation, workers’ compensation and equal pay for equal work. Yes, that was your friendly trade union achieving all that.

So where is the lawyer’s union? There is a Finance Sector Union, a union for any number of other professionals – including engineers, pharmacists, airline pilots and scientists.

A bit of research uncovers that there once was a specialist union for lawyers employed in the public service at least – the Australian Government Lawyers Association which existed from 1974 – 1991, to eventually be subsumed by the CPSU, the Community & Public Sector Union. Now there is nothing.

So why is there no union for legal professionals in Australia? The Law Institute of Victoria and similar associations across the country fulfil some functions of a union – they have information on work-life balance on their website, which is great… but that’s it. If you work in the Community Legal Sector, you have the Federations of CLCs to provide collectivised advocacy and support for vital issues in the sector such as funding and promotion of the CLC model. There is no specific focus on the conditions of its workers, however.

There is also no body to campaign for private employers to improve their conditions and implement good work-life balance policies. There is no representation in enterprise bargaining to improve conditions and entitlements throughout the workplace. Yes, many legal professionals are self-employed, but so very many also work in large firms. So who is looking out for the vulnerable in these firms: those with family responsibilities, people with health problems and other issues which put them at a relative disadvantage?

Currently – that’s all up to the individual. At least at the moment. Unfortunately historically –  without collectivising – changes to these fundamental conditions in the workplace have not come easily (or at all).

In the UK this seems to be changing. There is a fledgling group setting up a Legal Workers’ Trade Union. They aim to ‘forge a unified profession and establish better working environments’ and ‘fight for fairness and equality across the industry’.

If that sounds like a good idea to you – maybe it’s time we collectivised and set one up here in Australia?

You have nothing to lose but your chains billable hours.

 

 

+A tip o’ the pen to Mr Dean R P Edwards for suggesting this topic

Crowdfunding Community Legal Centres– saviour or saboteur?

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by Phoebe Churches

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Sitting at work in my pleasant corner office a few weeks ago, one of my staff came to the door and said, “I need some help replying to an email in the general inbox”. The subject line read ‘Potential new funding model’. The email was basically a ‘cold call’ invitation to support and promote a new crowd funding project to help fund community legal centres (CLCs). A quick look at their site discloses only moderate activity so far.

I manage a tiny CLC based at the Student Union at Melbourne University. We are as vulnerable to the vagaries of public funding as the next not-for-profit, although our tenuous grant comes from the pockets of students via the (currently) compulsory Student Services and Amenity Fee. We are therefore not subject to the present round of fund slashing that the razor happy Commonwealth Government has enacted and threatens to further enact on most CLCs. So it was from a slightly arm’s length seat that I read the email asking us to support Lawfunder.org.

Proponents of crowd funding say that the goodwill of the online community can be harnessed to plug the gaps left by receding Government support. However critics regard ceding responsibility to private individuals for access to justice as backdoor privatisation.

Crowd funding as a model clearly has efficacy and a positive contribution to make in some areas. In many ways it is a modern, internet enabled form of traditional financing models used in the social economy – commonly called co-operatives and mutuals. These models all rely on an interested community who is willing to collectively fund joint ventures and to share the profits. In general social enterprises are characterised by a not-for-profit ethos and emphasise democratic governance and collective ownership.

Similarly the litigation funding model is not new. The most common model of litigation funding is as a business enterprise predicated on securing a satisfactory investment return. Crowd funding of legal actions is therefore potentially a community-based version of something with which those involved in class-action work are already familiar. Yet the question remains – how will crowd funded litigation be free of bias or interest in a return of some kind? Crowd funding has the disturbing potential to be a populist funding model.  It is hard to see how it might avoid becoming a system which funds only well-regarded or high profile individuals or fashionable legal causes seen as ‘worthy’. How will this help the most vulnerable in society?

Moreover, when the model is used to effectively replace shrinking government funding, there are real risks that it is simply another form of privatisation in the public domain. Directly seeking to fill funding gaps left by the Government will not only cement the loss of that funding permanently but also risks giving a green light to further withdrawal of responsibility for the provision of social services.

What is wrong with privatisation as long as there are funds? I am of the view that privatisation of services providing social welfare benefit to the community at large is not in the public interest for a range of reasons.  History and the experience of many privatised economies tell us that privatisation of public services tends to create unregulated monopolies – in direct contradiction to the free market argument that privatisation increases competition and gives consumers better choice and quality of service. Consider the current state of job seeking networks and the vocational education and training sector for example.

Rather, the privatisation of public services aligns with a neoliberal agenda of centralisation, managerialism and bureaucracy. This is totally at odds with the purported ethos of crowd funding and social enterprises.  A crowd funding initiative in this context has the potential to end up being another mechanism for the State to shift the burden of community legal funding.

Ultimately I replied to the email indicating that, while the initiative sounded interesting, we were wary of actively supporting a shift to private funding of CLCs or moves towards the privatisation of access to justice. We suggested however that we would wholeheartedly support a crowd funding campaign to raise funds to lobby governments to increase funding to the sector.

I was pleased to see a thoughtful response indicating the feedback was well-received and thought would be given to using the platform to crowd fund campaigns to increase Government funding.

Additionally there are some absolutely critical services, such as the Asylum Seekers Resource Centre (ASRC) which deliberately and almost comprehensively eschews Government funding because of the highly politicised nature of their work. The ASRC is dependent on donations, fundraising and philanthropy because one of its core values is to remain an independent organisation at all times and not to accept funding that will compromise their independence or quality of their work.

Accordingly, campaigning and lobbying for appropriate government funding levels to the sector and the funding of politically sensitive services which must operate free from governmental influence, such as the ASRC, is the logical milieu of crowd funding.

Perhaps this is where independent community funding – free of Governmental or business interests – could really come into its own.

Pachydermal Paranoia

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by Phoebe Churches

Elephant and dog

You need a ‘thick skin’ to be a lawyer – but is this sort of resilience purely dispositional or can it be acquired?

My brother quipped recently that his every utterance contained ‘layers of meaning, and meanness’. Growing up with this, I have developed both a thick skin and the expectation that almost everything has a hidden meaning.

This started me thinking about environments where there is positive survival value in becoming immune to many provocations. I am not impervious to all types of needling of course, as my partner will readily attest. However in the cut and thrust of my professional life – shields are up and you will have to work very hard to get a rise out of me. No doubt my years working as a social worker also honed my ability to keep ‘other people’s stuff’ at a safe arm’s length.

Firstly, why do I suggest that thick skin is an essential quality in a lawyer?

Working as a lawyer has many challenges – but one of the biggest tests for many is remaining confident in the face of criticism. That doesn’t mean rejecting all feedback. Confidence is not arrogance. Self-confidence allows you to recognise weaknesses and fix them. Reframing criticism as something that will just make you better, both disables its debilitating sting and fuels self-improvement.

However, facing down criticism in an adversarial milieu is a different matter. I am talking about learning to zone out the white noise that is simply designed to undermine your confidence and get you to give in.

Your competence, skill and judgement will often be challenged. Even during negotiation in an alternative dispute resolution setting – you need to be resistant to the games which will inevitably play out as each party tries to get their best outcome. In the typical day of a working lawyer, we may need to remind ourselves that our clients are generally not misleading us, we are not thick or gullible and the claims we represent are not querulous. So when our opponent suggests we should just drop our case, that we are wrong and there is no merit to our claim – will we give in?

Well, not unless they are right.

How do we build this resilience, if you didn’t grow up with a troll for a sibling?

There are really two ways you can deal with criticism as you develop – you can absorb it, let it soak into your bones, weaken your confidence and sap your desire to challenge yourself. Or you can create a barrier which protects your inner world.  These are decisions we often fail to make consciously – but there is nothing stopping a conscious decision to develop or enhance our resilience to criticism at any time in life.

Number one tip – is that life is not a popularity contest. We don’t need constant approval to be happy. That’s it. Move on.

Next – nothing is personal. People generally act in self-interest – they aren’t really trying to tell us something we need to know about ourselves, they are trying to get what they want. Why do some things just roll off the proverbial duck’s back and other things cut to the quick? This is about knowing your ‘red flags’. The tiny (or sometimes screaming) inner voice which articulates the beliefs we have about ourselves. If you grew up thinking you were gullible, not good at logic or too emotional for example – criticisms on these points are going to score direct hits. If you have a strong inner belief that you are intelligent and rational – being called stupid and emotional is going to just seem silly.

It’s that simple. No, really it is. We can always question our unexplored self-beliefs and reality check them against what we know to be true. It is the unexamined character of the little inner voice that makes it so destructive. These things are no more than cognitive-emotional habits. Practice makes perfect.

Finally, could a thick skin be the enemy of empathy and compassion in our work? It would be easy to see someone like Julian Burnside as a bundle of porous empathy. However he has to face fierce criticism for his efforts. Thick skin is also about a boundary between you and everyone else. Perhaps paradoxically, when you are involved in the most empathic types of lawyering – you will need the best boundaries. I volunteer once a week in the Human Rights Law clinic at the Asylum Seekers Resource Centre and the risk of burn out is all too real.

We can be of public service only as long as we have resilience in the face of manifest systemic unfairness and the raw horror of some people’s lived experience.

Ultimately I don’t know whether it was growing up with a mean brother or 25 years of social work which thickened my skin the most.

Maybe I was an elephant in another life.

 

 

 

 

 

 

 

I have an Admission to Make…

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by Phoebe Churches

Courtroom

Unlike Mike Ross,* I am an Australian Legal Practitioner, fully admitted to the Supreme Court of Victoria and the holder of a current Victorian practicing certificate. However it wasn’t always so.

It was only at the beginning of last year in fact that I finally finished my Practical Legal Training and scraped up the (not inconsiderable amount of) cash for my admission fees and membership of the Supreme Court Library. Then came the paperwork. If someone tells you there is quite a lot of paperwork to organise for Admission, they really aren’t kidding. There is a lot.

I started off pretty cocky, filling out my Notice of Intention to Apply for Admission and schlepping down to the Board of Examiners to lodge it. Naturally everything needs to be done in person. Oh, and between 10:00 am and 4:00 pm. No, only on week days. Although if it’s busy, well…why not come back later. But NOT TOO LATE, cripes this is the last day! Just stand in line and forget going back to the office now.

So the nice woman at the Board of Examiners checks my Notice, finds it is set out acceptably in conformance with Schedule 5 and then I’m directed over the road to the back of the old Supreme Court. Oh good, it’s a court so I have to brave security scans of my crumpler bag and have my bike tyre confiscated as a dangerous weapon. Oh well, small price to pay – just so I can go and pin my Notice up on the board. My, it looks so good among the 3000 other flapping Notices festooned across every pinnable surface.

Take a breath – that was the easy part.

The next few months involve me trying to organise my law school to send my qualifications directly to the Board of Examiners. This is remarkably difficult now in the age where universities do not give direct contact numbers for anyone who can help you do anything. Hours can be spent waiting in the phone queue of the main info line just so you can speak to someone who doesn’t have a clue what you are asking about. ‘Send your transcript to who?’ ‘Examiners – what, staff in the law school?’ NOOOOOOOOO. Wait…no never mind. Look is there anyone else there who I can speak to? Call again later? Deep sigh.

Then there is the chasing of conduct reports from every tertiary institution at which I have studied. That’s quite a few. They don’t have direct contact numbers for anyone either. More waiting in phone queues ensues.

Even after all of this, plus emails sent to confirm, and deadlines mentioned again and again – when I present to the Board of Examiners to personally lodge my Affidavit of Disclosure and my two Character Affidavits – they tell me one of my conduct reports has still not arrived. Ugh. Oh, and this affidavit is no good – you need to put that they are a JP and therefore an authorised person to make the Affidavit of Character. See you again soon!

OK – now here are my affidavits – all ready to go. There are only days left to the deadline. Great, no queue at the Board of Examiners. Here you go. Wait. She points to the bottom of both of my Affidavits of Character. When they were signed, the deponents didn’t specify whether they had sworn or affirmed. There is a brief, still moment where her eyes meet mine and we both know what I am thinking. She can see me weighing the option of asking if we can just cross one of those words out now. Sworn/Affirmed.  Just one small stroke of the pen. Here, now, in the quiet back office of the Board of Examiners. She can see that thought take shape in my mind. I see her reading it on my face and then – I let that thought-bubble burst and stand up and walk out.

On the last possible day to file these documents – finally they pass muster. All of my conduct reports have shown up and my file is in order. I almost can’t believe it. Several months later I am parting with my hard earned, getting not much change from a grand, paying my dues and picking up my guest tickets for the Admission Ceremony. It is now the end of the year.

One last nagging thought – the mover of my admission needs to be fully frocked up in court garb on the day. It seemed impossible to hope that she might have a jabot tucked away in her wardrobe. Yeah. No.

With days to go, I am unsurprised to find all places in Melbourne who might rent court kit are completely out. Thank the founding fathers I know a barrister! She so generously hands over wig, waistcoat and cape. Oh, and the jabot – don’t want to forget that.

It seems like only 112 years ago that the very first sitting of the High Court of Australia unfolded in the Banco Court room of the current Victorian Supreme Court. In fact it was 112 years ago and the Banco Court is still infused with the musty gravitas of that occasion. It is also way too small and very hot and uncomfortable in my new Hugo Boss suit in the tight company of about 700 of my closest legal peers.

My admission is moved by a solicitor work mate. Kitted up in borrowed garb – she looks the part. She stands when the Chief Justice asks if ‘Phoebe Churches is in the Court today’. Of course I am – as if I’d miss this excitement!  She casually leans into the microphone and barks ‘May it please the Court, I appear to move that Phoebe Churches be admitted to the legal profession as an Australian Lawyer and as an officer of this Honourable Court and I so move on the certificate and recommendation of the Board of Examiners’. Well, she didn’t just appear to move it, it actually really happened!

Approximately 30 minutes later, we filed from the Banco Court through a small ante-chamber where we were handed our Certificates of Admission and we signed the dusty bar roll. So, now I am admitted to the legal profession as a ‘barrister and solicitor and officer of the Supreme Court of Victoria’. This officially makes me an Australian Lawyer. Still, I cannot practice law without one – final – step.

At the beginning of this year my Practicing Certificate arrived in the post – that makes me a “Australian Legal Practitioner” and officially allowed to practice law. Phew. That was a lot of hoops and hurdles.

My first work as a newly minted Australian Legal Practitioner – certifying documents. Lots of them. And Statutory Declarations. So. Many. Stat Decs. Form an orderly queue.

At least when it comes to witnessing my first affidavit I will know I need to check if they are swearing or affirming.

*Suits reference – check it out!

Value added volunteering

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by Phoebe Churches

phoebe blog 4

Here we are – the last (for now) in this series of posts about building capacity in a small Student Union Community Legal Service. You may recall from previous posts that I have been ruminating on the best possible model to increase the capacity of our tiny legal service to meet its mission as a Community Legal Centre. Law students are asking almost daily if we can take them on and it is impossible to ignore the potential benefits. If we can get the model right, student volunteers could meaningfully contribute to public policy and law reform submissions, develop website content and self-help resources, or write a regular column in Farrago. In terms of case work assistance, student para legal volunteers can conduct intake interviews; do case research and even some basic drafting under supervision.

However, in the context of the preceding posts about ensuring we do not exploit free labour or offer a substandard learning experience to volunteers, the question remains – can we harness the resources of local education providers to deliver an academic context to service delivery and make sure students are well prepared and properly equipped to make the required commitment and observe their ethical duties?

The primary focus of academic clinical programs is the development of practical lawyering skills in a closely supervised environment. The student has the advantage of both practitioner and academic supervision.  According to the Griffith Law School, Clinical Legal Education Programs Strategic Plan 2003 ­2007, the typical model is:

An intensive small group learning experience in which each student takes responsibility for legal and related work for a client (whether real or simulated) in collaboration with a supervisor. The student takes the opportunity to reflect on matters including their interactions with the client, their colleagues and their supervisor as well as the ethical aspects and impact of the law and legal processes.

First and foremost – this model puts the educational experience of students at its core.

When I first started recording my thoughts about this capacity building project I mentioned that the Melbourne Law School (MLS), part of the University in which the tiny legal service is located, did not run a clinical program. Within a few days of that post going live, I was contacted by the (then relatively) new Director of the MLS Public Interest Law Initiative (PILI). She alerted me to the development of a varied and exciting public interest law clinic, through which clinical legal education subjects would be delivered. This could be the answer to our prayer for adequately experienced and well oriented student volunteers who are already inducted into the ways of good legal practice. It may well slot the final piece of the puzzle into place. If the MLS can provide this practical experience to its students with all the attendant educational focus and instruction, perhaps we can draw our volunteers from a pool of students who have successfully completed one or more subjects in the program.

The National Pro Bono Resource Centre defines student pro bono in the following terms:

‘student pro bono’ is where students, without fee, reward or academic credit provide or assist in the provision of services that will provide or enhance access to justice for low income and disadvantaged people or for non­profit organisations that work on behalf of members of the community who are disadvantaged or marginalised, or that work for the public good.

While students at Melbourne University are unlikely as a class to be ‘disadvantaged’, they are nonetheless generally on low or no incomes and will not otherwise have ready access to justice on a fee for service basis. The spread of matters presenting to the service also offer good opportunities for law students to be exposed to real world legal issues in a fairly contained way. There is no shortage of good reasons to have a small but lively group of volunteer law students, but the problem with past ad hoc attempts to recruit and maintain paralegal volunteers was that many simply had no idea of the commitment required and frequently failed to attend rostered shifts or cancelled with very short notice. More troubling, many appeared unaware of the critical ethical and other obligations within a legal practice. These things need to be taught and learned – but our tiny service is just not well enough resourced to do that from first principles. If we are able to recruit students who have completed a clinical subject as part of their studies – we may have solved that problem.

There is considerably more the service could do with greater resources and there is a substantial demand from students for volunteering opportunities. It is difficult in this context to ignore the obvious fit between increasing service capacity and the use of volunteers. The time certainly seems right – the Student Union is currently reviewing the best model for a centrally coordinated volunteer program and this too could inject considerable resources into the establishment of a functional program in the Legal Service.

So where do we begin? Literature on the subject suggests that program establishment is aided by starting small and informally. However a strategy needs to be developed for moving from the informality that enables establishment in uncertain times to the more structured and integrated approaches that are likely to foster longer-term sustainability. At this stage the plan is to establish a small steering group to garner the expertise and experience of others in this area and to get student input into the opportunities they would like to be offered. We will need to develop a suite of policies detailing our obligations with respect to the supervision of students; confidentiality; and conflicts of interest. Finally, a volunteer manual needs to be developed and a set of appropriate precedents generated. Perhaps our inaugural volunteer or intern can work toward this? Any takers?