Regulating for the Real World

February 24, 2022

By Bob Glaves | CBF Executive Director

Last fall, I got an email from an animal rescue charity our family supports that threw me for a loop. It apparently was National Make a Will Month–who knew?!–and they were promoting a free online tool where you can make a will on your own, presumably make provision for your pets, and maybe even consider an estate gift for the cause too.

I had never heard of this tool or the company behind it, and I immediately had questions about whether it was any good or had any connection with lawyers in Illinois who know what they are doing on these issues. Given my support for the charity’s goals here and my concern that people should not be doing wills on their own without understanding what they are getting into, my first impulse was to call the charity and ask WTF? But after a moment of reflection, it dawned on me: how would they know how to vet this tool, and where could I even point them to find out the answers to my questions and concerns?

I shared this story soon afterwards with one of our board members, who it turns out had just received a similar email from her alma mater, but with a different online tool we had never heard of, and she had the same questions. 

Reflections of a Growing Trend

These anecdotes are a microcosm of a growing trend. When an average person encounters a legal issue that does not involve imminent peril to their safety or liberty, in increasing numbers they do what we all do for a whole range of issues in our lives: they turn to Google and do a search. And if they find there are technology-based options that can allow them to resolve the issue on their own, either for free or for a reasonable price, you can bet that most people at least will be interested in considering that as one of their options.

These trends raise three fundamental questions our profession needs to ask ourselves as the trustees of the justice system. First, what are we doing to help people understand if these technology-based options are reliable products? Second, how can we help people determine when these options are potentially valid legal solutions for their problems? And finally, closely related to the first two, what are we doing to help lawyers collaborate with these entities to offer technology-based solutions as part of their law practices? 

The answer to all three of these questions is, practically speaking, just about nothing. And we are doing a deep disservice to the public we serve, to our system of justice, and to our own profession by ceding this growing share of the legal market to others.

A Key Piece of the Larger Access to Justice Puzzle

To be clear, technology-based solutions are just one component of the larger puzzle of ensuring access to justice for all. But they have an important role to play, particularly for more routine and lower stakes legal issues people face and for the many procedural elements of interacting with our legal system.

Even for more complex or higher-stakes issues where people really need a lawyer, these tools can help educate people about how a lawyer can help them and then seamlessly connect them to a lawyer if they do not already have one.

And we know that people want these options and are flocking to them already.

Don’t Blame the Companies Stepping into the Void

You are probably familiar with the adage that the market abhors a vacuum. It could not be more on point to what we are seeing on this front. Our profession and our justice system are not connecting with large swaths of the public when they have a legal issue. Instead, we are clinging to our traditional ways of doing business and continuing to regulate the delivery of legal services as if lawyers were the only game in town and everyone else must be completely separate. And for good measure, we call everyone else “nonlawyers” instead of addressing them by who they are.

Meanwhile, in fast increasing numbers, other companies are looking at this huge unserved legal market and seeing big opportunities to design and market technology-based tools to help people facing a range of bread-and-butter legal issues. And this is an increasingly lucrative niche.

LegalZoom is one of the better-known players in this space, and last year, they were valued at a cool $7.5 billion after going public. And they are just one of the more prominent examples, with the “make a will” companies I referenced at the outset are just some of the latest examples of the growing number of companies jumping into this market.

Over on the Tax Side, a Much Better and More Integrated Regulatory Model

As lawyers watch a whole parallel infrastructure for the delivery of legal products and services develop around them, tax and accounting professionals have a much broader range of business options to build these tools into their delivery system, and consumers are much better served as a result.

As we near tax time once again this spring, millions of Americans including yours truly will turn to TurboTax or one of the other online tax tools to help prepare their taxes.  These online tools provide a tremendous service to people like me who do not have complicated tax lives.  

These tools are regulated by the IRS and are allowed to operate in the market by meeting some basic conditions like making their core products free for lower-income Americans and agreeing to adhere to quality control and accountability standards.

Rather than drawing bright lines between these online tools and tax and accounting professionals, these services are offered as an integrated package where the consumer has a continuum of options to choose from to best meet their needs. Along with the straight self-help package, there are options to consult tax professionals by live chat with discrete questions during the online process, to have someone assist you in preparing it, to have your return reviewed by a professional before filing, and even to purchase legal insurance at the end to assist you in case you are later audited by the IRS.

We Can and Must Do Better

The solution to responsibly integrating these technology-based solutions into the larger legal services delivery system does not involve rocket science. We simply need to acknowledge that our Rules of Professional Conduct were literally written for a different era, modernize those rules to reflect the real world around us, and learn from our fellow professions who already are far ahead of us in this regard.

First, we need to develop a regulatory structure that allows entities offering technology-based legal solutions to do so in way that consumers, lawyers, and courts can know has been responsibly vetted. Right now, unless these solutions are found to cross the line into the practice of law (which has been exceedingly rare), our legal and professional regulatory structure does not touch the work of these entities. And while they are regulated to some degree by state consumer protection authorities, those regulatory bodies are not set up to realistically vet whether the legal solutions being offered by these entities are legally accurate or responsible solutions for the consumers.

By creating a path for entities to voluntarily become certified to offer these technology-based services in a way where they are vetted for legal accuracy and other protections, we can encourage responsible entities to offer these solutions and give legal consumers the ability to know these are legitimate tools they can use.

Second, we need to modernize the ethics rules so that lawyers can more realistically and responsibly collaborate with these companies and offer these technology-based solutions that consumers clearly want as part of a continuum of legal services for their clients.

The CBA/CBF Task Force on the Sustainable Practice of Law & Innovation has submitted a proposal to do these very things to the Illinois Supreme Court that is currently under review.  

Utah and Arizona already are ahead of the game in developing new regulatory structures to enable lawyers and entities to offer these innovative new solutions, and other states are considering similar proposals as well.

The real choice for the real world

The question is not whether technology-based legal solutions are a good idea for everyone in every legal context. They clearly are not, but these tools are good solutions for many legal issues, people already are using them in droves, and that has only increased during the pandemic.

The real questions are:

  • Are we going to do anything to help people determine whether these are reliable products and reasonable solutions for their problems?
  • Are we going to let lawyers be a part of it?

The status quo is a lose-lose-lose proposition for consumers, for lawyers, and for access to justice, and as the trustees of the justice system, it is incumbent on us to fix it.