President's Message July/August 2015

Facing Up to Change

Melissa E. Darigan, Esq.
President, Rhode Island Bar Association

The needs of the profession and the public for lawyers to work better, smarter, faster and cheaper are not going away.  To be successful, happy and productive in our practices we have to find a way to do just that. 
I really don’t like change.  My 23-year career has been with one law firm which is within five miles of where I was born and raised.  I still prefer reading something on paper versus online.  I have dated only two men in my life and married them both.  My dislike for change is no wonder.  Born in October, I am a Libra and Libras crave balance, harmony and stability – all of which are the antithesis of change.  So it is rather unexpected that I am a messenger for change, but as much as I want to resist it, I feel an urgent need for change in our profession.

Some of you have read the works of Richard Susskind who prophesies the profound changes threatening the practice of law:  “Tomorrow’s legal world … [will bear] little resemblance to the past.  Legal institutions, and lawyers, are at a crossroads … and are poised to change more radically over the next two decades than they have over the last two centuries.”  Tomorrow’s Lawyers:  An Introduction to Your Future (Oxford University Press, 2013).  The three drivers of change according to Susskind are: the impact of clients demanding more for less; competition with traditional lawyering, as new providers of legal services enter the market; and the new ways of delivering legal services created by technology.

Spend just a little time reading about the future of the profession, going to industry conferences or talking to colleagues, and Susskind’s warnings (and those of other commentators raising the same alarm) ring true.  From in-house counsel at large companies to owners of small businesses to individual citizens, clients cannot afford – or are simply refusing to pay for – legal services when delivered the traditional way.  Experts agree that client demand for value, quality and results at the lowest possible cost may be the greatest driver of change in our profession and which lawyers are most reluctant and ill-equipped to address.

This challenge is compounded by increased competition.  It is almost old-fashioned to point to clients out-sourcing legal services overseas.  A bigger threat may come from non-lawyers, such as accountants, financial planners, banks and insurance companies.  These industries have long faced the market demands now frustrating lawyers and have already made needed mindset, organizational and technological changes.  They are nimble and entrepreneurial enough to meet clients’ more-for-less challenge and are already nibbling at the edges.  In the United Kingdom, alternative business structures (ABS) are now permitted.  ABS entities may be owned by non-lawyers, seek private equity or venture capital investors and have non-lawyers as partners.  A fairly recent phenomenon overseas, commentators predict a ripple effect when it is realized these types of legal businesses are better able to meet clients’ growing demands.  Indeed, in the last year, Washington became the first state to authorize Limited License Legal Technicians (LLLT).  Designed to offer reasonably-priced legal support to those who can’t afford traditional lawyers, LLLTs will assist in divorces, child custody cases and other family law matters outside the courtroom.  Other states and innovations in other law disciplines will not be far behind.

Even lawyers who are resistant to the call to change pricing practices or dismiss the threat of new competition cannot legitimately dispute information technology is fundamentally changing how legal services are provided.  This has far greater reach than just electronic legal research platforms or research by Google.  Do-it-yourself websites, such as Legal Zoom, compete with us on an unprecedented scale and have expanded their services from simply providing forms to connecting the public with lawyers who join their program.  Advanced technologies could someday make much of our work obsolete.  Predictive coding in discovery is making headway and developments with artificial intelligence like IBM’s “Watson” mean machines may soon become problem-solvers not just data sources.  At a recent ABA conference, President William Hubbard noted that in 2012 venture capitalists invested $66 million in technology companies that support the legal services market.  In 2013, it was $456 million.  Investment in these technologies topped $1 billion in 2014.  These investors view change as a positive and they embrace innovation, disruption and the opportunity some say lawyers are handing to them on a platter.

You may be thinking that talk about change is clichéd or just hype.  I suspect more than a few dispute the premise – clients still call, the judicial system runs as it always has, new technologies are being incorporated into even the smallest of firms.  Plus, this is Rhode Island, and doesn’t everything come later to Rhode Island?  Lawyers as a whole are notorious for being skeptics and slow to react.  We rely on precedent and are trained to be methodical, poke holes in ideas, shoot down arguments, and mitigate risk.  We are also procrastinators, and even if these concerns exist, they are all in the future aren’t they?  I don’t think so.  “The future is here, it just isn’t evenly distributed yet.”  (William Gibson, author.)  Our first challenge is facing up to the need for change.

My message is that it is time to act.  The needs of the profession and the public for lawyers to work better, smarter, faster and cheaper are not going away.  To be successful, happy and productive in our practices, we have to find a way to do just that.  If we do not act, others – as has happened in England and Washington – will act for us.

To be candid, the Bar Association has little to gain (in the short run anyway) in pushing the need for change – there might be disagreement or discord, lawyers may push back, the message will be ignored.  But, as an Association and a profession – lawyers, courts, law schools alike – we have an awful lot to lose if we do nothing.  Are we going to sit on the sidelines, or will we do something about it?