2016 year in review: The ABA Future Commission report and its discontents

Some of the most provocative statements of 2016 came from one of the highest profile bodies in legal: the American Bar Association. The ABA Commission on the Future of Legal Services issued The Report on the Future of Legal Services at their Annual Meeting in August in San Francisco. For a while it seemed nearly everyone was sounding off about it. The heated online dialogue that resulted bears discussion for a couple of reasons: it unearthed, once again, that we need to ensure access to legal to make any significant headway. And that we are all going to need some very thick skin to get it done.

Here are some of the Greatest Hits in rough chronological order.

The dissenters:

My verdict on the commission’s report is mixed. No one can deny that the future of legal services hinges on how we . . . answer critical questions about evolving business models, evolving service-delivery models, and emerging technologies. Yet on these questions, the commission falls short of taking bold and decisive stands, instead recommending further study and consideration.

Bob Ambrogi
ABA Future Panel Calls For Broad Changes In Legal Services
Above the Law
August 8, 2016

[N]one of the 28 members of the commission were technology entrepreneurs who founded, guided or participated in legal technology companies or startups focused on the delivery of legal services. . . . [W]ithout the active participation of technology innovators, entrepreneurs and leaders, how can you hope to make recommendations on delivering the future of legal services?

. . .

Otherwise the ABA is going to lose credibility on this front and ultimately fail lawyers and the people we serve.

Kevin O’Keefe
No legaltech entrepreneurs on ABA Commission on Future of Legal Services
Real Lawyers Have Blogs
August 9, 2016

There is solid work here. . . [b]ut I do not think we can be proud of this result. . . . There is a stark absence of substance. Resolutions that demand actual work, or actual commitment of funds, are only directed at those over whom the ABA has no influence . . .

. . .

At some point, it becomes meaningless to ask what the commission’s motives were. It is more important to focus on the impact of their failure to produce a work of substance.

The ABA’s influence is in peril. . . . With this report, it has missed yet another shot at relevance. I do not think there will be many more. Until the ABA invites in all meaningful voices – including those it finds threatening – it will continue to fail both the public and the membership it is supposed to serve.

Eddie Hartman
LegalZoom Co-Founder On ABA’s ‘Toothless’ Future Of Legal Services Report
Above the Law
August 15, 2016

In defense of:

As Mr. Hartman knows, the problems facing the American justice system are far too pervasive for a single entity to solve . . . . but just because the ABA cannot itself implement [all the solutions proposed in the report] does not mean that the report lacks substance.

Elsewhere, Mr. Hartman says that the Commission “shut out the people … actively building the future of legal services delivery at scale.” This statement is puzzling, given that LegalZoom was a major sponsor of the Commission’s signature event: A National Summit on Innovation in Legal Services at Stanford in 2015. In fact, LegalZoom’s CEO was a speaker at the Summit. Other speakers included Mark Britton, the founder and CEO of Avvo; Richard Barton, founder of Expedia, Glassdoor, and Zillow; Colin Rule, founder of online dispute resolution company Modria; and Richard Susskind, author of The End of Lawyers? Rethinking the Nature of Legal Services and the UK Civil Justice Council’s report Online Dispute Resolution for Low-Value Civil Claims.

[W]hat cannot be denied is that the report contains wide-ranging recommendations that, if fully implemented, would make an important difference in how legal services are delivered and accessed in the United States.

Judy Perry Martinez and Andrew Perlman
ABA Future Panel Chairs Respond To LegalZoom Co-Founder
Above the Law
August 22, 2016

More dissenters:

Sam started his piece by calling out the ABA for limiting reproduction of its Model Rules without paying a substantial fee.

In its report on the future of legal services, the ABA Commission on the Future of Legal Services found . . . that attempts to introduce technology as a way to solve legal problems are often met with heavy resistance. And hefty price tags from the ABA, it turns out.

. . .

The ABA should be a champion of open access to law, the foundation on which the future of access to justice will be built. And it should start by opening up the law it controls.

Sam Glover
The American Bar Association Should Be a Champion of Open Access to Law
Lawyerist
August 29, 2016

From my point of view, the Commission’s Report on the Future of Legal Services is an important starting point. It’s a bold statement but it remains to be seen how much is hat and how much is cattle, particularly in light of some of the ABA’s previous challenges in successfully implementing innovative projects. The jury is definitely still out.

Access to legal and thick skin

Some final thoughts.

While a lot of the action about the report circled around who was or wasn’t on the Commission, I think Sam Glover’s criticism of the Report didn’t get the visibility it deserved.

“[T]here is another obstacle to using technology to increase access to justice: the lack of open access to law. . . . You can’t built (sic) great software on top of nothing. Often, you need to incorporate the law, either as law or in the algorithms that power the software. And if you have to pay for the law, you have to charge for the software, which often means you are going to build software for big firms, not for the public.”

Again, this is not something over which the Commission had or has direct control, but kudos to Sam for calling lawyers out for a monopoly that, if they didn’t create, they were certainly complicit in creating. The law belongs to all of us and to innovate in law we’re going to need access to it.

Finally, innovators can’t listen to haters. If Steve Jobs, and Mark Zuckerberg, and Bill Gates tried to set the record straight with every critic, they’d never have gotten anything done. If the Commission can truly be taken at its word, to “seek innovative answers to enhancing access to, and the delivery of, legal services” then its members are going to need a thick skin. They’ll make lots more enemies before they make any friends.

So, in 2017 let’s all stop worrying about what everyone is saying about what we said or how we said it and let’s all get busy building the future.

It’s about time.

Others who put together quality reviews of the report or contributed to the discussion above include Erika Kubik at 2Civility and Renee Knake.