Analysis of the ABA Report on the Future of Legal Services

Episode Notes

Transcript

The Digital Edge

Analysis of the ABA Report on the Future of Legal Services

10/21/2016

[Music]

Intro: Welcome to ‘The Digital Edge’ with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers invite industry professionals to discuss a new topic related to lawyers and technology. You are listening to Legal Talk Network.

Sharon Nelson: Welcome to the 106th edition of The Digital Edge: Lawyers and Technology. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises.

Jim Calloway: And I am Jim Calloway, Director of the Oklahoma Bar Association’s Management Assistance Program. Today, our topic is ‘Analysis of the ABA Report on the Future of Legal Services’ in the United States.

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We are very pleased to have as our guest, Mary E. Vandenack, who is the Founding and Managing Partner of Vandenack Weaver LLC in Omaha, Nebraska. Mary is a highly regarded practitioner in the areas of tax, high-net-worth estate planning, asset protection planning, employee benefits, executive compensation, business succession planning, tax dispute resolution, and tax-exempt entities.

Mary served on the American Bar Association commission on the future of legal services, which is why we’re interviewing her today and she currently serves as Co-Chair of the Futures Task Force and Co-Chair of the Economics and Technology Committee of the ABA Real Property Trust and Estate Section.

Mary is a frequent writer and speaker on tax, benefits, asset protection planning, and estate planning topics as well as on practice management topics, including improving the delivery of legal services, technology in the practice of law, building sustainable law firms and developing profitable flat fees. Mary is currently co-authoring a book on asset protection that will be published by the AAL. Thanks for joining us Mary.

Mary E. Vandenack: Well thanks for having me Jim and Sharon. It’s really great to be here with you today.

Sharon Nelson: You know Mary, I’m sure you’re not surprised that many of our listeners are probably unaware of the American Bar Association Commission on the Future of Legal Services. A certain number of us are into this whole subject matter but not everybody. So could you give us a brief explanation of what that Commission was and is?

Mary E. Vandenack: I will. So the American Bar Association, it will put together commission to consider certain issues that are considered very important at the time and this particular commission was organized when William Hubbard was President and the Future of Legal Services Commission was given the charge of considering how legal services are currently being delivered, what the competitive forces are for the legal services, what the obstacles to delivery of services are and how we can deliver those services better and differently in the future.

There’s a particular part of the mission, there’s a real interest in the National Bar that there’s a lot of underserved of the population so there’s a lot of people who are just not getting the legal services, don’t have access to them. So the Commission was convened. It was originally a one-year commission. At the end or somewhat through the process of that first year, Judy Perry Martinez was chairing it and we realized that one year was just not really going to be sufficient time to take on this kind of study.

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And so the Commission ultimately was convened two years and during that two-year period, we held grassroots meetings around the country, a national convocation, which was a significant effort to seek information, it was really kind of exciting to listen to the different views; it was sometimes very overwhelming because we’d have hearings where a variety of people would speak and there’s just huge variations of the opinions and at times, I thought how are we going to ever really synthesize this information and put together something that’s workable.

But we did that through establishing internal working groups and organizing those by topic and at one point, there were, I don’t know, 500 ideas proposed, so it’s like, well, which ones do we proceed with and so we had a process to do that, finally resulted in a final report that we’ve provided in August of 2016, just at this last annual meeting to the American Bar.

Jim Calloway: Well Mary, let’s talk about that report, what were the findings of the commission?

Mary E. Vandenack: So there are a variety of findings and one of them was that there is a significant issue for your moderate and poverty level individuals not receiving the services they need. It’s probably in some senses there was a concern that a lot of poverty level type clients will have access to legal aid.

So one of the things that I thought was noteworthy was there’s this whole population that doesn’t qualify for legal aid type services that doesn’t really have ability to hire a traditional law firm so there’s a significant gap between available services and people being able to get to them.

And so as a result of that, there is a fairly significant population that just doesn’t get effective legal assistance. So we’re not really meeting the needs of the majority of the public.

Another finding was just that there is a continued issue with unemployed and underemployed lawyers, there is a fair amount of study on that, there’s currently a fairly common knowledge that employment out of the law school can be somewhat challenging.

There’s a lot of discussion about the traditional model of practicing law and how that restrains innovation. And I can speak to that – I spoke to that at the Commission personally because I was at a law firm who said, it would be really great if we could just pay you to sit around and think about innovating.

And of course — but this is the reality of practice of law, we really can’t do that. And so that’s kind of your traditional model is your focus is billable hours, times the rate and let’s go to create the revenue so not a lot of attention is given in the traditional law firms to innovation.

And the legal profession also is very resistant to change and that restrains innovation. We have pretty much law firms have cultures, the legal profession has a certain way of looking at how we practice law and what it’s about so that gets in the way of really making some changes in the profession.

One of the things I got asked numerous times as I was working on the Commission is well what are the market forces that are driving change and in some cases you have a lot of law firms who are doing really well, whether or not we’re in another bubble or not there so we really have no motivation, we have no reason to do that, so you have that type of resistance as well as people are just really busy.

There’s a lot of advances in technology that are available to change how legal services are delivered. There really aren’t the availability of those technology are not really catching up with law firms so there’s a lot of opportunity there. There’s new providers and types of providers that are being authorized in some states and so that’s another finding of the Commission and so we really need to look at this and decide whether and how that should be regulated, whether this should be more common, whether that’s a value. And particularly, whether providing some alternate providers helps in terms of serving the underserved.

Sharon Nelson: Well I understand that the final report proposed that the ABA establish a Center for Innovation, which you’ve spoken a lot about. What exactly is the center and what is the goal of creating it.

Mary E. Vandenack: And I have to tell you that I am most excited about that particular proposal is spending two years on this commission, the thought process was wow, we can write a report but unless there’s something that’s going to carry on the mission of this report, I am not sure that any change happened.

So at one of the meetings, the proposal was we need some bricks and mortar to go with this so that there’s really an active part of the American Bar Association that’s going to assist and facilitate innovation.

And particularly from the perspective that sometimes we have different sections, we have a business section, a taxation section, we have a law practice division, and we are try and collaborate that they all function somewhat separately and as you know I am active in the law practice division and some substantive sections, and I am like let’s try and find ways to bring this more together.

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So the Center for Innovation, they are going to have a director and they are going to have an advisory council, and I spoke with Judy Perry Martinez this week who indicates that they are getting some significant interest from some real innovators in participating on that.

The intention is that we will have a great resource for ABA members, so that if they are interested in innovation or just interested in learning about innovation or what’s going on in the world of legal innovation, that we will have a resource, keep an inventory of what’s going on.

One of the other things is to have some fellowships so that individuals can be law students, we are also talking about mid-career lawyers who are interested in changing the way they practice can come participate in a fellowship at the Center and then take that back.

Jim Calloway: Well, according to Twitter a director has now been hired, he will start next week, so we are excited to see that progress for the Center. Were there any recommendations for the court system?

Mary E. Vandenack: So there were and those recommendations particularly were about some model regulatory objectives, trying to get everybody some consistency across the country in the way that things are being handled. But there’s a particular interest in providing some rules and procedures that will help provide greater access for litigants.

So there is a lot of evidence, there is a lot of pro se litigants, a lot of people who don’t get to court at all, or because of the cost of the system or the structure of the system just aren’t getting served and so the recommendation was that courts should really focus on that by providing different platforms.

Sharon Nelson: How about online dispute resolution, was there anything in the report about that topic?

Mary E. Vandenack: And one of the recommendations was developing an online dispute resolution. There’s a fair amount of evidence over the couple of years in the Commission that alternative dispute resolution generally reduces the cost and creates better access for litigants. The thought was that if you do a little more focus on the alternative dispute resolution and develop some online dispute resolution systems, that’s going to make access much easier, improve the efficiency of the system.

Jim Calloway: Mary, I am reminded of a quote by Jordan Furlong who says, unless they are forced otherwise, people are generally going to do what they want to do, and what lawyers want to do is the same thing they did yesterday. Did the Commission address the need for lawyers to stay current on new technology?

Mary E. Vandenack: We do have a model rule that requires attorneys to stay current on technology, exactly what that’s about is not really defined. So the report is, let’s do a little bit better job of that and let’s figure out how to help lawyers to stay current.

So the thought process is that we need to do a better job with CLE, part of that’s making sure that CLE on these type of issues that they get credit for going to that, that lawyers need help with, website content, newsletters, articles that we need to do a better job of particularly providing some mentoring to lawyers in this area.

Sharon Nelson: Well, before we move on to our next segment let’s take a quick commercial break.

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Sharon Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is Analysis of the ABA Report on the Future of Legal Services in the United States, and our guest is Mary E. Vandenack, the Founder and Managing Partner of Vandenack Weaver LLC in Omaha, Nebraska.

Mary, can you explain the recommendations in the report concerning Legal Checkups?

Mary E. Vandenack: So Legal Checkups is an idea based on the concept that a lot of individuals simply aren’t aware of their legal needs, so when it comes to say heart issues, we have days for in the medical world that say, okay, here is the kind of stuff that you need, you should have a colonoscopy when you are age 50, you should have your cholesterol checked, all those things that we provide in the medical world.

The thought processes that we haven’t really done a good job of advising individuals about what checkups type of things they might need in terms of legal service, so, do you have a power of attorney for healthcare, have you dealt with a general power of attorney, do you have a will, do you have a trust, is your insurance in place, and so the thought is to do the same type of thing in the legal world as we do in the medical world and other areas that really help advice and help people be aware of their needs.

And again, particularly with the underserved there’s a fair amount of the population that doesn’t have access to the legal system may often not really know that they have a legal issue or that something should be handled, so the goal is to both create some checkup lists and then to do some things like have a legal checkup day and provide some information and access through the center and other avenues.

Jim Calloway: Collaboration has been a topic of discussion in the ABA recently. Was this addressed in the report?

Mary E. Vandenack: Collaboration was addressed. It’s one of my personal favorite topics, because I think if we did more collaboration, we can make a bigger difference faster. And the thought process there was, again, that sometimes we as lawyers sit around and give thought to, okay, what do we as lawyers want to do instead of what is the real need out there. And there was a lot of conversation that said, okay, sometimes it’s really easy for us to sit here behind our desks or wherever we might be working from without really considering what’s going on.

So for example, one of the collaborations that was considered at length was doing more collaboration with the medical community. So you have the whole healthcare changes that are going on in a whole lot of ways, and so coming up with different types of collaborations with the medical community, whether it’s healthcare providers, pharmaceutical companies or whatever. And that same thing is true with the technology industry, with engineering. There’s a lot of opportunity to go out there and say to a particular industry, most industries have groups, so if we look at those industry groups and say, how can we collaborate so that what we are providing is really what is needed in your particular industry?

Sharon Nelson: And how about diversity and inclusion, which we seem to hear about all the time and everywhere, was it also addressed in the report?

Mary E. Vandenack: That was addressed. Diversity and inclusion in the legal profession simply continues to be an issue in that the diversity of our profession isn’t really reflecting the diversity of our society, in both terms of those providing services and those receiving delivery of services. So that is one of the report recommendations that we need to address that issue.

Jim Calloway: Mary, I know we have covered a lot of ground and the Commission covered a lot of ground. Is there a way you could summarize how the Commission’s work will help lawyers deal with the changes ahead?

Mary E. Vandenack: And I will, and I would say that this is personally my concept of having spent two years and talking a lot too, I care a lot about other lawyers in the profession and what’s going on for them. And in one of the conversations in relation to the Center we said, well, what really matters going forward? So, part of the future is now, the breath I just took is already the past and the next breath is the future, so it’s coming quickly.

So the future is a little bit about what are we doing now, what are we going to do as the next breath, what are we going to be doing two years from now, five years? There were a lot of conversations about, well, how long into the future should we be looking? And it was really interesting the discussions on that, it would be two years, five years, ten years, and there was a lot of passion about that.

So my theory became, if all of those are correct and what we need to look at in terms of the practice of the law is we need to have law firms that are sustainable, and what does that look like. A sustainable law firm addresses all the aspects of practice.

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So part of that is innovation, and innovation isn’t technology. So some people when you say innovation think that means technology, but innovation is, how do we practice law, how do we apply technology to do things differently, really creating law firms where innovation is supported, encouraged, where we have leaders who are willing to support innovation, send a lawyer to the Center.

There’s workplace structure, so that’s changing. So instead of a traditional law firm, you might have a traditional law firm and that might work for one law firm, but what we want to look at is say, okay, different types of law firms, different types of lawyers, what type of structures work so that this law firm is going to be here five years, ten years from now. And that might be firms that are remote. It might be firms that have some combination of a physical structure and remote.

The diversity issue that we just talked about, finding true diversity in law firms. The research is saying, for example, my gender is still not making inroads into management of a lot of the law firms, and the same is true for other minorities. So again, our law firms are just not reflecting what we look like societally or even in terms of law firm graduates, so how can we really address that in law firms going forward?

And just applying strategies, like a lot of law firms, you talk to them and some are doing this, engage in strategic planning as a process. I met with somebody here this morning and their law firm has actually taken a retreat and they do strategic planning. I think that’s becoming more commonplace, but it’s really important that that be part of the process and we include innovation and consideration of the alternative business structures and the other issues that we are addressing in terms of sustaining our law firms.

And then technology is huge. We really do need to consider how to apply technology. Law firms do seem to be a little dinosauric about really embracing and using technology. And I talked to, I had a conversation with a Chicago law firm about that yesterday, I am just like, well, why are we not, why are — and it was, well, you know what, we are really busy, we are like in this, and we are just going to make as much money as fast as we can and we are busy so what do we care.

I said, well, you care. And it was a really interesting conversation, but I think a sustainable law firm to survive the next dip in the economy maybe needs to have efficient systems and technology. So that’s one of the things out of the future that we are trying to address is that delivery of systems.

So one of the things we are trying to address is that delivery of legal services through technology more efficiently, and again, the leadership of law firms being comfortable with diversity, innovation, knowledge management, putting all those things in place. So that’s kind of the summary is just how do we create sustainable law firms and those are the aspects that really make that up.

Sharon Nelson: Well, I had to real quickly look dinosauric up. It is in the urban dictionary.

Mary E. Vandenack: I just made that one up.

Sharon Nelson: But I like it, Mary, I like it, it’s really good. So what the report is really saying become sustainable or become extinct is that its underlying message?

Mary E. Vandenack: That would be the massage.

Sharon Nelson: Then dinosaur is exactly the right word.

Mary E. Vandenack: Right. I personally think it’s really basic that we move forward with technology and innovation, that that is — like that conversation I had yesterday, that’s not the way everybody views it.

Sharon Nelson: No, absolutely, we agree. And thank you for bringing us up to speed on the report. Like I said, there are those of us who are heavily invested in looking at the future in innovation, but a lot of lawyers are just struggling doing their day-to-day work in their law practices. So I think some folks probably came up to speed today listening to you and your expertise from serving on the Commission and being so familiar with the report.

So thank you very much again for being our guest today, Mary.

Mary E. Vandenack: You are welcome. Thanks for having me Jim and Sharon, I really appreciate it.

Sharon Nelson: And that does it for this edition of The Digital Edge: Lawyers and Technology. And remember you can subscribe to all the editions of this podcast at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or in iTunes. And if you enjoyed our podcast, please rate us on iTunes.

Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.

Sharon Nelson: Happy trails, cowboy.

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