Few things make us more nervous than rapid change and uncertainty. Companies like Uber seem poised to upend not just the taxi industry but the whole paradigm of car ownership. Online video services mean a whole generation has unplugged the cable TV company. Nurse practitioners perform tasks traditionally reserved for doctors, and a radiologist in India may have interpreted your last X-ray. These developments fall into a category that Clayton Christensen calls “disruptive innovations.”
Jeff Brown, Harvard 1989, is manager of the State Bar Pro Bono Program, liaison to the Legal Assistance Committee, and staff for the Wisconsin Access to Justice Commission. He can be reached by email or by phone at (608) 250-6177.
One controversial project being watched intently by lawyers is Washington state’s first class of limited license legal technicians (LLLTs), who will sit for their licensing exam this spring. Once licensed, these LLLTs will be allowed to provide a range of family law services to Washington residents. As Bob Ambrogi noted in his recent article for the ABA Journal, risks and opportunities arise from allowing people other than lawyers to deliver additional legal services. A similar proposal is percolating in California, while New York has a new court navigator program and Arizona has welcomed certified legal document preparers. In Ontario, licensed paralegals have been allowed to represent individuals in some courts and agencies since 2008.
For new lawyers with educational debt to repay, more market disruption and increased competition probably are not welcome. At the same time, we generally welcome (or at least tolerate) innovation and increases in economic competition outside the legal field. But those changes don’t feel so personal.
“Risks and opportunities arise from allowing people other than lawyers to deliver additional legal services.”
Many states are grappling with how to maintain professionalism, protect the public, and provide a greater measure of equal access to justice. Here are some basic facts to keep in mind when thinking about disruptive innovation. A huge number of Wisconsin residents are priced out of the legal market. The State Bar’s 2013 Economics of Law Practice survey reported that the average hourly rate for attorneys in private practice was $229 per hour (probably mainly driven by the median overhead cost they reported: $102,050). According to the Center on Wisconsin Strategies, “Between 1979 and 2011, the average income of the top 1% in Wisconsin grew by 104%, while the average income of the bottom 99% dropped by 0.4%.”
Funding for civil legal aid programs that serve low-income people has steadily declined. According to the State Bar’s 2007 Bridging the Justice Gap report, more than 500,000 low- and moderate-income residents likely need legal assistance each year. But only 15,000 lawyers are licensed and allowed to practice in Wisconsin (the number actually practicing is considerably smaller). It’s an environment primed for disruption.
The full impact of the challenges facing the legal profession won’t be clear for many years. But the implications are worth thinking about now. If you’re wondering what you can do to help shape the future (beyond being the best lawyer you can be), review and periodically monitor the ongoing work of the ABA’s Commission on the Future of Legal Services. It has many important items on its agenda and its recommendations will help shape the pace of change.
