Sandboxes and the Legal Ecosystem
On Tuesday, August 31, 2021, Professor Kevin Lee, Director of the Innovation Institute, discussed changes to the Rules of Professional Conduct recently proposed by a study committee of the State Bar, which has been forwarded to the Bar Council for further consideration.
Citing a 2017 study by the Legal Services Corporation that suggested the over 86% of the need for legal services among the organizations they serve are only partial met or not met at all, Lee explained that similar studies suggest that about 2 million North Carolinians qualify for pro bono legal assistance, and about 76% of them do not receive the legal services they need.
The opportunity to advance reforms was occasioned in February 2020, by a Resolution of the ABA House of Delegates, which called on all jurisdictions to consider regulatory liberalizations that would allow for new business models and expanded roles for paraprofessionals. In March 2020, North Carolina formed a study committee to consider reforms.
Two proposed changes were advanced by the study committee. One would allow for expanded roles for paralegals in handling routine matters in several practice areas. Another proposal calls for the creation of a regulatory sandbox in which is an isolated space for experimentation that is free from existing rules. The sandbox allows for bounded testing of innovations under the oversight of a regulator. Novel technologies and business models can be tested in the sandbox while maintaining close supervision and safeguards. There are several such sandbox projects underway across the country.
In his talk, Lee describes the proposed changes and suggested that the reforms draw from a mistaken approach that viewed the legal system as a mechanism that can be reformed simply and predictably by amending rules and monitoring lawyers, paralegals, and new business entities. He suggested that a better approach would be to view the legal environment and consider the profession to be like an organic, growing thing. Drawing from Manuel DeLanda’s Assemblage Theory, he argues for considering the Access to Justice problem through the conceptualization of society as a complex system, with emergent behaviors and unpredictable relations. This approach should focus on history and the relationship between law and other social systems. Regulators should consider the causes of the disparity and work to overcome them. They should consider the wellbeing of the communities in which the underserved are present and pay close attention to the particularities of the communities and differences among them.
Also, he noted that AI and related technologies have environmental consequences that might be particularly consequential for low-income and traditionally marginalized people. Any plan that includes extensive use of AI, should be aware of the environmental impact. He also focused on mediating institutions, which are the churches, clubs, public services societies, and schools which are essential to the formation of strong identities, particularly in Black communities and other communities under racial attack. These institutions deal work to provide legal assistance and deal with the consequences of social distress. How, he wonders, will the regulatory Sandbox impact these communities?
Focusing on outputs, he asked whether the proposed reforms strengthening the argument for external regulation of the profession since non-lawyers will have legitimate stakes and interests. Also, he questioned the impact that these measures might have on the perception of the rule of law and its role in our democracy. Will it strengthen confidence in the rule of law to have created a two-tier legal system where the underserved communities are intentionally given a set of alternative legal service providers? Will it deepen the divide between rich and poor that is already at a high point in the history of the nation?
Specific recommendation by Lee called for consideration of the possible negative impacts of the Sandbox on the people it is intended to serve. These might include bearing the risk of non-compliance and failed experiments. He noted the irony of assessing the success of the program by looking for consumer complaints, given the underserved population may have little experience or interest with complaints and my shy away from contact with the legal system.
He also calls for reforms in legal education, noting that if the State Bar is anticipating expanded use of artificial intelligence in the forms of machine learning and natural language processing, there is an immediate need to educate lawyers about these technologies. In particular, the ethics of artificial intelligence should be added to the law schools curricula as a required course.
Finally, he argues for reforming the Bar Exam, which has racist origins and does not test for competency to practice law in today’s world. There is no empirical evidence that supports its function and given its racist heritage, why does the legal establishment fight so hard to keep it? Why not take up the ABA’s call for meaningful reform by seeking to alter the system of licensing which contributes to the problem in the first place?
The talk and Lee’s slide deck can be viewed here:
