Legal professionalism is prophesied an apocalypse with increasing frequency. The territory covered by The End of Lawyers? is the threat posed by IT.
Susskind’s big idea is that technology will create a future where lawyers are not the dominant interface between citizens and the law. Acting as a consultant to law firms on IT has confirmed his view that they suffer from conservatism, hostility to innovation and resistance to information technology. He chaired the UK Advisory Panel on Public Sector Information, currently sponsored by the Ministry of Justice, and remains the IT adviser to the Lord Chief Justice of England and Wales. His ideas are glimpsed in the directions that the UK government has taken since Susskind’s 1996 bestseller, The Future of Law. One of his predictions, online legal communities–cross between Facebook and Wikipedia–sponsored by government surfaced in the Community Legal Service. His ideas have more traction in the UK, but are as transportable as the technology around which they are woven.
My engagement flows from interest in the future of the legal profession and specifically for professional ethics, now, belatedly, a candidate for inclusion in the mandatory curriculum of UK law degrees. What it might look like in 10 years’ time–what lawyers ought to do or what they must do under business-like regulation?
The End of Lawyers? puts more flesh on Susskind’s earlier predictions. The thesis is that legal services have traditionally been conceived as bespoke services, but IT creates the potential for them to pass through stages of standardization, systemization, packaging, and commoditization. Lawyers are reluctant to embrace the full potential of IT, but are powerless to resist the impact of disruptive legal technologies (document assembly, online dispute resolution). They are forced to change how they handle legal work, utilizing outsourcing and off-shoring. Clients will eschew bespoke services, demanding more efficient, less costly points on the continuum to commoditization. Lawyers will pay more attention to recognition (of the need for legal advice), selection (of the source of legal advice) and service (the process of delivering legal advice and assistance), and IT will optimize each of these stages.
According to Susskind, there will be five types of lawyer in the future. Only “expert trusted advisers” continue to handcraft legal solutions, but their work is a luxury clients will not pay for, and numbers are reduced. “Enhanced practitioners” will support the delivery of the standard and commoditized packages produced by “legal knowledge engineers”. “Legal risk managers” are counselors who avoid legal problems and “legal hybrids”, schooled in complementary disciplines aligned to law, project managers, strategy consultants, etc., will emerge. The rest had better look out!
The title is an attention grabber, but no lawyer is exempted from his prognosis, even large firm and in-house lawyers, recent high-prestige, high-growth sectors. The current model of Big Law, where partners’ profits are leveraged by large numbers of associates, will be less viable. Custom work demands fully-fledged expertise. The drift to commoditization will exempt relatively few. Bizarrely, only barristers, one of the groups of lawyers in the UK regarded as most threatened by market developments, are secure because they offer consultancy and advocacy. Thus, Susskind is a little ambiguous on whether the end of lawyers is avoidable, but lawyers who offer routine services and resist rationalization will end.
Commoditization is represented by “…an online solution that is made available for direct use by the end user, often on a DIY basis” (32). Online guidance enabling less qualified persons to offer lawyerly advice is hardly the end of lawyers. Despite the wider availability of legal material, the public still needs interpretation and guidance through the “legal maze”. And what of the disruptive technologies? Will they really force lawyers to embrace IT? Experience suggests that only compulsion ensures transition to a computerised function. Consider electronic filing of claims. Change will only become embedded once firms are required to adopt particular systems for optimal engagement with courts.
What about impact on stakeholders in the legal services market? Susskind argues that law students must be encouraged to consider these “likely trends and to think deeply about the new skills that will be needed in practice” (277). In-house lawyers, as gatekeepers for referral to law firms, should start to work together more in online, closed communities. Again, bizarrely, Susskind exempts US law firms by suggesting that UK firms have stronger records of technological innovation than US practices, where “a group of millionaires with clear sight of retirement” (280) innovate only to avoid competitive disadvantage. These robber barons will “wring every last cent out of the increasingly unsustainable practice of hourly billing and steer well clear of innovative IT. Unless, of course, clients demand otherwise” (281).
There are underlying reasons for differences between the two countries. In England and Wales, government is breaking the legal profession’s capacity to resist change, and could be seen to be dismantling legal professionalism. At the very least the creation of a Legal Services Board to oversee the profession is a nail through the heart of self-regulation. The Board will permit “Alternative Business Structures”, which can see legal services being delivered even by supermarkets. Susskind allows the possibility of non-lawyers contributing capital to law firms spurring the technological legal revolution. He speculates that investors will be less chary of IT and will invest in the kinds of systems that law firms do not currently exploit. This will reconfigure law firms, with lay managers and capital puncturing collegial structures.
A criticism of Susskind’s book (not the thesis) is that he erects a straw man in lawyers who assert “computers cannot replace legal work” (274). The truth is that most enterprises adopt technology ahead of the time they need it, so avoiding damage, much less fatality. Lawyers are probably as open-minded about anything that benefits their business. Susskind himself predicts an “incremental revolution [where] lawyers and their clients will change their ways in significant steps rather than huge leaps…” (274). Not the end of lawyers then?
Susskind’s vision focuses attention on unpleasant possibilities for lawyers and academics. It clears the mind of “what is” and encourages thought about the future of law, legal services, and legal education. Some futures are very likely, for example, new investors in law whether or not they splash money on lawyer-replacing technology. They will view legal professionalism and the “professional overhead” from experience of their own industries, wondering whether costs, from courses to apprenticeships to partnerships, are necessary. As insiders they will have to be taken seriously, often with unpredictable and unpalatable results.