Does the legal profession have a moral duty to innovate?

Do lawyers have a social and moral duty to embrace innovation to ensure access to justice?

Matthew Peters thinks so. At a panel discussion in Vancouver Dec. 4, McCarthy Tétrault LLP’s national innovation leader raised the issue for consideration.

“We have to remember that we as a profession have a social licence and I actually don’t think we treat that social licence with the respect that we need to,” said Peters, who is based in the firm’s Vancouver and Toronto offices.

Peters was speaking at the BC Legal Innovation Forum conference along with Carla Swansburg, vice president and general manager at Epiq Canada, Michael Walker, managing partner at Miller Thomson LLP’s Vancouver office, Karim Amlani, managing counsel at Hootsuite, and Corinne Zimmerman, general counsel, Department of Justice Canada and chairwoman of the DOJ’s Canada’s Innovation Council.

As an example, Peters referenced the profession’s slow consideration of alternative business structures, particularly at the law society level. The Law Society of Ontario’s Alternative Business Structures Working Group has been looking at the issue since 2012. The group shelved a proposal to allow non-lawyer majority ownership of law firms in 2015. And while it approved a motion last September to allow non-profits and charities to provide legal services through practitioners, some lawyers have remained wary of introducing any form of ABS to the profession.

“If you look at demographically where the votes came from, it was a protectionist vote of the profession to prevent other people from coming in and ultimately preventing access to justice,” Peters said. “This is a very serious issue for us in the context of innovation in the legal profession because innovation is actually going to help us reach a moral obligation we have with respect to access to justice.”

By not considering ABS or non-lawyer ownership, Peters says it is an example of preventing innovation.

“If we are preventing innovation we are going to lose our social licence because, quite frankly, if I was an elected official, I would actually pass legislation soon if the profession didn’t wake up and say: ‘We need to solve this in a different way because you’re too self-interested.’”

Peters noted that, in particular, the Vancouver market has not done a lot to advance the discussion on innovation in law.

“This is the biggest opportunity that the industry has been presented with, I would say literally, in its history. This is the first time we’re having this discussion [on innovation] in the Vancouver market,” he said. “In Toronto,  we were having the discussion six years ago, and so if you want to talk about an area that really needs to wake up to be totally blunt, this is an area that needs to wake up and realize there is a whole lot going on. This was happening 10 years ago in London [U.K.]. Facing this as a problem is quite frankly going to be a problem for you, whereas seeing it as the best opportunity for your firm that’s the right attitude. This market quite frankly needs to do a lot more.”

The panel was moderated by Peter A. Allard School of law professor Jon Festinger, principal at Festinger Law & Strategy, who had posed the question: Is the practice of law a profession, a business or both?

Walker, managing partner at Miller Thomson, said lawyers “think of ourselves as being on a different plain; I don’t really accept that and we work with lots of other professionals who have professional obligations very similar to ours and I would say, for people who are successful at it, it has always been a business and that will continue to be the case.”

As the voice of in-house counsel, Karim Amlani of Hootsuite said it often falls to the legal group to be the “ethical backbone of a company” and “it is increasingly important” as the profession changes and innovates to make sure lawyers maintain their ethical backbones.

“There’s also a greater magnitude of spotlight shone on you if you are revealed to have done something unethical,” he said.

Zimmerman said research shows lawyers are risk averse and score poorly when it comes to resilience, according to Dr. Larry Richard, a psychologist specializing in lawyer behaviour.

“All of these things explain to some extent why we haven’t fully embraced innovation,” she said. “It’s not an excuse not to go there but important to note why it’s taking so long to go down the path.”

In her opinion, it is more interesting to look at what kind of capabilities make the most effective lawyers. 

“T-shaped legal professionals — those with deep legal expertise coupled with basic knowledge technically, business and data analytics and human-centred lawyering skills — that deep legal expertise is the base line; it’s the foundation, but it is augmented by another skillset,” she said.

“Lawyers need to collaborate with lawyers, with clients, across disciplines — the full range of professionals to ensure we’re delivering the best product.”

Swansburg argued that enduring businesses realize good ethics can actually just be good business.

“To capture and take advantage of changes in technology and changes in the profession using business skills to translate that into better margins equals successful law firms and better legal service providers. In translating change into success for lawyers, [it] is to be more business-like and to learn those business skills,” she said.

Walker said lawyers in a large firm will often resist innovation, while the business people, if given licence, will develop innovations and bring them to the lawyers, but [it's] not always with success.

“If you look at project management, most of our big firms have to give lip service to it and most of our partners will do anything to avoid using it,” he said. “And yet we bring in project management experts who are not typically going to be lawyers. If we wanted to use that effectively, we would have them all organizing the work and maybe one in 10 of us would work with them and even switch over to that side of the practice.”

When asked to project to what the future of law firms will be like in 50 years, Swansburg said the business model has to change.

“I think in a law firm the whole staffing structure and business model has to change. Historically, it’s been elite partners at the top and junior lawyers who generate the revenue. I say this all the time — the technology and alternative e-service providers are moving up the value chain and it starts with commodity work. There are more and more ways to get that work done,” she said. “It may have stated with legal research and document review, but now it’s due diligence and legal research.”  

She referenced tools such as LegalMation, which automates early-stage litigation work by leveraging the IBM Watson platform. It was recently adopted by Wal-Mart for all new lawsuits as part of the company’s initial case assessment process.

Swansburg recalled when Microsoft Excel was entering the world of accounts.

“There was a big debate. Accountants said: ‘How are we going to train our junior accountants if they aren’t inputting the formulas? I see a great parallel to that,” she said.

And while many think law schools aren’t keeping up with providing graduates the skills they need to be more competitive in today’s world, Peters disagrees.

“Law schools have been beat up in the profession a bit, but the reality is law schools are doing a very good job producing complex problem solvers,  and we as a profession are very good complex problem solvers,” he said.

“By Q1 of next year, McCarthys will have launched six different divisions, all non-legal, things that facilitate us helping clients solve complex problems and not just in Canada but around the world,” he said.

He noted that there needs to be greater efficiency in the profession, for example, by using Big Data to determine the probability of winning a case.

“There’s going to be an obligation to point to the data available. We need to take the view that AI enables our ability to do document view and know AI is 99.5 per cent accurate and humans are 97 per cent accurate.

Walker said the capitalization of law firms will be an important driver of change, more so even than the introduction of technology. Firms would also benefit from bringing more non-lawyers into their organizations who are treated with respect from lawyers.

“In 50 years, there may be pockets of owner-operator boutique advisors — the main body of the profession may be capitalized differently and driven by shareholder discipline and financial discipline and you may see the profession turned on its head. We may have to fight to establish value in the kind of moral voice that Corrine was talking about,” he said.

Swansburg said there is an expectation that law firms will “disaggregate and disintermediate where it makes sense to do so and have a full suite of options” for their clients.

The panel also discussed the fact that more than 30 states in the U.S. have adopted the American Bar Association’s model rule that imposes a duty of technology competence on lawyers. The Federation of Law Societies in Canada is said to be looking at changing the model code of professional conduct in Canada to impose a duty of technology competence similar to the ABA’s rule.

“It could in less than five years be a professional responsibility,” said Zimmerman.