ABA’s ‘Toothless’ Future Of Legal Services Report

This first appeared in Above the Law as an interview with Robert Ambrogi. After Robert wrote about the ABA’s Report on the Future of Legal Services in the United States, I reached out to him about sharing my thoughts on the report. Over the course of several emails, the following conversation ensued.

AMBROGI: What is your overall impression of the committee’s report?

HARTMAN: I’m a dad, which means that I can separate good intentions from less-than-great outcome. I can distinguish, say, the fact that my child wants to play music from the sticky chocolate handprints she leaves on our piano.

The Future Commission clearly wanted to do the right thing. I applaud them for devoting sufficient time (two years) and resources, including the valuable attention of Judy Perry Martinez, William Hubbard, Andy Perlman, and others, some of whom I am lucky to count as friends. Many of the stated resolutions are important and point to the right direction for our profession.

And to be clear, I am not one of the many critics out there on the internet (or filling my inbox) who claim that the commission was just some kind of smokescreen. There is solid work here, real effort.

But I do not think we can be proud of this result.

Start by looking at what the report actually resolves to do. 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:

  • “Minor offenses should be decriminalized.” (ABA, you are not a state legislature!)
  • The LSC must be fully funded. (ABA, you are not Congress!)
  • “Individuals should have regular legal checkups.” (ABA, you are not on speaking terms with the public!)

But when it comes to things the ABA can actually influence, for their members, the resolutions are purely toothless, like this gem: “Courts should examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially-authorized-and-regulated legal services providers.” (Resolution 2.2)

Or make mandatory something no one has yet figured out how to do, like Resolution 11: “Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.” Evaluated how? To what standard? And by whom?

Then there is the wonderfully succinct Resolution 3: “All members of the legal profession should keep abreast of relevant technologies.” Crawl before you walk, dear ABA, and walk before you run. Your members are still using WordPerfect; do not insist they go read Satoshi Nakamoto.

AMBROGI: Kevin O’Keefe observed that none of the 28 commission members were technology entrepreneurs. Should the commission have included entrepreneurs such as yourself, and what would you have brought to its deliberations that was absent from the process or the report?

HARTMAN: Again, the people they had ON the commission were amazing: Hagan, Littlewood, Staudt, Kimbro, Knake — a great list.

However, the title of the paper is “Report on the Future of Legal Services.” They shut out the people actually doing it, those actively building the future of legal services delivery at scale. If they were trying to avoid controversy, they needn’t have invited a sharp-tongued fellow like myself, they could have brought in anyone — there are dozens of significant companies out there beyond LegalZoom.

Together, our companies represent a share of legal service delivery that is not just meaningful, but growing wildly. Why silence us completely? I don’t subscribe to the commonly held belief that the ABA is scared of us and hopes that if it has its head buried squarely enough in the sand, computers will turn out to be a hoax. Rather, I have two theories.

The first is an ingrained attitude in the legal community that non-lawyers do not really matter. Those outside the traditional model are lumped in the “not real law” bucket, so what could we contribute to navigating the future of the profession? Meanwhile, Modria– founded by Colin Rule, who is not a lawyer — handled more disputes in 2015 than most state court systems. I do not know how long our profession can continue to ignore the rise of alternatives to the traditional model, but with the Olympics on, I think the ABA has what it takes to medal in Denial.

There is just one problem with this theory, and the really solid Olympics joke I just made. It is Resolution 7 from the paper: “The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.” (Henceforth, The Irony Resolution.) What a shame they had not had these insights before forming the commission, but I guess that would have meant time travel.

The second, I don’t want to call “arrogance,” but look at the Charles Hamilton Houstonquote cited in boldface at the start of Part I: “A lawyer is either a social engineer or a parasite on society.”

Those are the only two choices? Seriously? Not someone’s GC? Not a wise counsellor to someone who is truly a social engineer, like an elected official? It does explain a lot. If the ABA sees itself and those in its orbit as industrious social engineers, then they don’t need any additional input. Really, they’re fine. Everyone waiting outside the door, you are covered in Resolution 2.

Yesterday, I had breakfast with a bright young man. He is not a lawyer, not even a U.S. citizen. He is just a lowly PhD from the Max Planck Institute. His algorithmic work (topological mapping and ordered logit and probit models, for those hoping to get an early jump on Resolution 3), applied to law, is brilliant. He doesn’t have the slightest clue what the ABA is. Maybe he never will.

AMBROGI: I agree with you that the people on the commission were amazing. You name some names but I honestly think the entire roster was a stellar line-up and I have little doubt they all contributed valuable insights. That is exactly why I am so befuddled by the final product. The first part of the report — the findings section — makes very clear that the members of this commission “get it.” As I wrote last week, the findings were frank in assessing the state of legal services and in acknowledging that the legal profession’s own resistance to change is a big part of the problem. But when the commission got down to its recommendations, it either failed to address issues head-on or it simply acknowledged the need for something to be done but passed the ball to someone else to figure it out.

So here’s my question. If this stellar panel — a panel with so many bright people who clearly get it and with all the resources of the ABA backing it — could not craft a definitive blueprint for bringing about change, then how will change come about? Is the ABA making itself irrelevant? What people or forces or events will drive the future of legal services?

HARTMAN: A cynic would point out that ABA revenues are plummeting, therefore the commission cannot be seen as encouraging options that reduce the number of dues-paying members.

There’s probably some merit to this. Half of the ABA’s executive director talk during the House of Delegates session was on what the ABA is doing to cut overhead in light of declining dues revenue. I read the commentary around the aborted Rocket Lawyer deal — particularly that the ABA ought to be focused on “bread and butter” lawyering, or members will leave. No doubt there is a lot of pressure to toe the line. That said, I do not think these commission members would cave easily.

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. It has no practical authority. Members — which include me — join voluntarily. 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.