Safe Harbors and Blue Oceans

The California State Bar’s Task Force on Access Through Innovation of Legal Services has solicited input on 16 concept options for regulatory changes.

I had hoped to think and write more expansively, but the deadline for comments is here so I will offer just a few half-baked remarks.

Short overall take: The Task Force deserves congratulations and thanks for its path-breaking work. The proposed innovations are promising. Like most policy choices, none portend unremittingly good or irremediably bad effects. The challenge is achieving a solid positive balance. It will be important to measure, to maintain a ‘before & after,’ and to proceed in a spirit of humility and empiricism. It’s hard to experiment with regulations, let alone do A|B testing. Still, we can look at experiences across jurisdictions with varying regulatory frameworks. (See the American Bar Association’s Legal Innovation Regulatory Survey.)

I’d mainly like to react to this idea: “Narrowing restrictions on the unauthorized practice of law (UPL) to allow persons or businesses other than a lawyer or law firm to render legal services, provided they meet appropriate eligibility standards and comply with regulatory requirements”

One aspect of which is as follows:

“2.2 — Add an exception to the prohibition against the unauthorized practice of law permitting State-certified/registered/approved entities to use technology-driven legal services delivery systems to engage in authorized practice of law activities.”

So it seems that only “State-certified/registered/approved entities” would be permitted to field “technology driven systems” without running the risk of prosecution. This implicitly endorses — or at least tacitly accepts — the validity of applying UPL rules to purely software-driven products and services. Would-be providers would essentially be told: “Certify or else.”

I recoil instinctively at perceived suppression of protected speech, and long ago talked myself into a First Amendment absolutist position regarding legal software. Lawyer groups elsewhere have tried to characterize software-driven tools and services as the practice of law in order to suppress them.

So when I first read the report I tweeted: “It doesn’t seem like progress for authorities to carve out a UPL exception for things that were never fairly characterized as the practice of law in the first place.” Some friends thought that was too harsh. This brief article expands on that point.

Rough Seas

Safe harbors sound attractive, but can pose hidden dangers. At least insofar as ‘technology driven’ is understood as describing systems that automatically interact with users without contemporaneous human assistance there are several problems with the proposed approach.

First, there are significant First Amendment freedom-of-expression aspects in play. See Liberty, Justice, and Legal Automata. For authorities to exempt some folks from UPL so long as they submit to certain regulations implies that similarly situated folks that don’t so submit are in danger. That seems a Faustian bargain, however advantageous it might be to some commercial players. One shouldn’t need certification to provide an informational service without fear of adverse governmental action, even if that service emits customized guidance and forms. (I realize that there are counterarguments! See e.g. Code is Not Speech.)

Continuing to define services that clearly aren’t premised on a trusted lawyer/client relationship as the practice of law is blatantly anti-competitive and violates rights of free expression (of both providers and consumers).

Second, this could seriously disadvantage startups and nonprofits. They may not be able to afford or justify the time and expense of seeking and maintaining certification. There may be pressure to strike out against those who don’t bend the knee. Allowing well-heeled providers to secure and trumpet certification will hurt new entrants.

Third, this could become an administrative nightmare for the bar. Reviewing and approving vendors and their products may require enormous resources both up front and ongoingly as websites, databases, and code stacks evolve. Might the certifiers bear at least moral responsibility for problems they miss? For picking the wrong ‘winners’?

More abstractly, it demeans lawyers to designate interaction with machines as the practice of law.

So I would urge the task force to instead push for clarity that pure software-driven services are not the kind of ‘practice’ that needs to be ‘authorized.’ Those of us involved in such services should be reassured, not intimidated.

Mild Blue Yonder

The alternative to regulation is not ignoring abuses. Deliberate abuses can be dealt with via existing consumer protection laws and other rules. Well-intentioned efforts that fall short of adequate quality, however, deserve proactive attention, and constructive criticism, not vetting processes, fees, and requirements.

Rather than, or in addition to, offering a safe harbor perhaps the task force could tackle head-on the current misguided UPL concept and take the courageous position that the writing and running of software is not the practice of law. Such systems should be encouraged, not burdened.

Bar energy could much more productively be put into helping lawyers compete on these new playing fields, by educating and supporting them. They need to learn how to survive and prosper as critical parts of the justice system. Part of that is helping lawyers understand and leverage advanced technology themselves. As I wrote in a short piece for the California Law Practice Management and Technology Section’s Bottom Line journal in 2013 : “Tools that resonate with the core structures of legal knowledge work perform best in the hands of lawyers who are reflective about its systemization. The future will belong to those who can choreograph optimal distributions of work across teams of humans and non-biological assistants.”

(Suggesting that lawyers learn to ‘code’ predictably triggers vicious debate, so I tend instead to say that lawyers should learn how to express their knowledge in artificial systems.)

That Oceanic Feeling

I’ve been a lawyer for over 40 years, and a teacher of lawyers for most of that time. Many of my good friends and clients are lawyers. But the legal market doesn’t belong to lawyers any more than the health ‘market’ belongs to doctors.

Automated legal assistance clearly raises potential harms as well as potential benefits. Quality control is quite challenging. (See The High Cost of Quality in Legal Apps and Substantive Legal Software Quality: A Gathering Storm.) But heavy-handed regulation would be net negative from a social policy point of view, and unconstitutionally encroach on the public’s rights both to express legal knowledge and to access it. Systems sometimes hurt people, including lawyers, but in our free society we let folks sell and use all kinds of dangerous stuff, and on balance its availability seems to offer significantly net positive social value.

The bar would do better to engage productively in these new forms of assistance, for example by mounting an ‘app watch’ that tracks and comments on them and by partnering with providers to facilitate hand-offs to private practitioners when self-helpers can afford them. The profession could help educate the public about the uses and misuses of online legal tools. And as the American Bar Association’s eLawyering Task Force often argued, lawyers can outperform competitors when they embrace advanced technologies themselves. We should up our game, not block other players.

Liberalize aspects of how lawyers can operate. Let them share fees and profits with people who are not lawyers. But don’t try to impose modes of professional ethics on business where they don’t fit. Leave privilege and confidentiality to the lawyers. Don’t expand the remit of the Bar to folks who are not lawyers and don’t purport to be. (Regulating lawyers is hard enough!) Prosecute egregious behavior under existing laws. Encourage good practice through approaches like the ABA’s recently passed 10A guidelines.

Lawyer-less ships have set sail on the sea of the law. But there are plenty of fish in that sea.

Kind of Blue — the 1959 studio album by Miles Davis — is regarded by many as the greatest jazz record of all time. The performers included saxophonists John Coltrane and “Cannonball” Adderley and my personal pianist-hero, Bill Evans. It opened up a whole new era of music.

Might we hope to see equivalent blockbuster innovations in law?

They are more likely to happen on the open ocean than in a safe harbor.