The Data-Driven Ethics Initiative

Episode Notes

Transcript

The Digital Edge

The Data-Driven Ethics Initiative

06/26/2018

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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.

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Sharon D. Nelson: Welcome to the 126th edition of The Digital Edge: Lawyers and Technology. We are glad to have you with us.

I am Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity and digital forensics firm in Fairfax, Virginia.

Jim Calloway: And I am Jim Calloway, Director of The Oklahoma Bar Association’s Management Assistance Program. Today, our topic is “The Data-Driven Ethics Initiative”.

Sharon D. Nelson: Before we get started we’d like to thank our sponsors.

Thanks to our sponsor Clio. Clio’s cloud-based practice management software makes it easy to manage your law firm from intake to invoice. Try it for free at clio.com.

We would like to thank Answer1, a leading virtual receptionist and answering service provider for lawyers. You can find out more by giving them a call at 800 Answer 1 or online at answer1.com.

Jim Calloway: Scorpion sets the standard for law firm online marketing with proven campaign strategies to get attorneys better cases from the Internet. Partner with Scorpion to get an award-winning website, ROI positive marketing programs today. Visit scorpionlegal.com/podcast.

And thanks to ServeNow, a nationwide network of trusted prescreened process servers. Work with the most professional process servers who have experience with high-volume serves, embrace technology, and understand the litigation process. Visit serve-now.com to learn more.

We are very pleased to have as our guest Erin Gerstenzang. In addition to running her boutique criminal law practice in Atlanta Georgia, Erin is dedicated to helping other lawyers succeed in their practices. She is a regular speaker at CLE Events across the country and helps lawyers understand legal ethics in a technology enabled world. And I’ll note she did a great presentation I sat through at ABA’s TECHSHOW 2018. She also lectures on Design Thinking for law firms, automation and paperless systems, and using social media to build a legal brand.

Thanks for joining us today, Erin.

Erin Gerstenzang: Thank you. I am so glad to be here.

Sharon D. Nelson: Well, we have this wonderful title here, Erin, “The Data-Driven Ethics Initiative”, but I am guessing, that’s mysterious to a lot of our listeners than they probably haven’t heard of it. So, could you explain what that initiative is?

Erin Gerstenzang: Absolutely, I would love to. So, the data-driven ethics initiative is a research project where we are compiling, analyzing and organizing data about today’s world of legal services in order to better dress rules of professional conduct which will hopefully embody traditional legal ethics and relate them to our modern world.

Jim Calloway: In your view, and of course, this is a question asked by somebody who works for one of these regulators; but in your view, what are the problems with the way in which attorneys are regulated?

Erin Gerstenzang: Well, that is obviously a little bit of a loaded question, because I think that there are a lot of opinions around this particular topic.

I think to start — let me start answering that question by looking back a little to see we have come a long way. It wasn’t that long ago even in the 70s where attorney regulation was done on a hyperlocal level where there weren’t professional staffs and offices set up. There were a lot of opaque hearings and not a lot of transparency about what was happening.

And 20 years later we had moved very far past that in the 90s and we had sort of statewide jurisdiction and agencies with staffing and a lot of national guidance. And so, here we are now no longer in the 90s, about 25 years later, and so, I think questions around what are we doing to keep moving towards — keep evolving and keep improving our system.

And I think one of the ways that lawyers get stuck in regulation because it is a privilege to be part of a profession where we do self-regulate and that is a blessing and a curse.

A little bit of a curse insofar as lawyers tend to be insofar as you can sort of group us altogether, we tend to be a group of people who do not like change and we like to stick to the tools for problem-solving that we have that lead to consistency, and like a sorry just like this for one looking back and relying on precedent to solve any problem that may arise in the current space.

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I think that that can be one of the things that holds us back in moving forward and evolving a regulatory system, is an over-emphasis on this or over-reliance on this tool that can help these problem-solving tools that can be very useful in a lot of different situations relying on precedent, but can really also handicap us in a way that prevents us from moving forward.

There is a lot of good examples of where this particular tool isn’t so great at answering questions in the modern world. One of my favorite examples is we see a lot of a trial lawyer, so a lot of my examples go back to things that come up in trial, so one of the things that all lawyers will remember from law school is an exception to hearsay, excited utterance rule, and it’s based on this notion of even if the witness can’t come to court to talk and to say what they observed if they made an excited utterance, near the time of whatever the incident was, the burglary, the crime, whatever it was, well, then that can come in as evidence because it’s a reliable statement that wouldn’t necessarily need to be cross-examined because people wouldn’t lie if they were talking about something they had just experienced because there wasn’t enough time to formulate a lie.

And this is really sort of something we held on to since the 1800s that was based upon what frankly probably the modern thought of how this human brain worked and probably driven by older White men who decided, well, this is how the human brain works and so we will develop this exception.

The problem is, now we have — in today’s modern world, we have a lot of data where if you ask experts in how the human brain works and how people interact, there’s no real data to support this notion that excited utterance is somehow more of a reliable statement than any other, and in fact, the human brain doesn’t take any time to lie or come up with something deceptive.

So, this exception that remains on the books based upon precedent, really doesn’t have any data to support it, and it is fundamentally flawed, and our system is not very well-equipped to address something that’s been on the books for so long. So, when I think about attorney regulation, I think about this as a set of rules that have evolved in we have come up based upon the best information we’ve had at the time in understanding what the public needs were at the time these rules came up, but now we sort of live in a world where we have experts, we have data, we can look at what’s happening in the world and we should have a system of regulation which allows more — allows us to look outside those tools through these other industries and other sources of information to make sure that these rules and systems that were designed by a very small part of the community with a very one particular viewpoint make sure that that actually holds water in today’s world with the data that we have.

Sharon D. Nelson: Well, I certainly agree with you, Erin, that we do tend to cling to the past, it is a lawyerly way, but it’s been my view and like Jim, I have been close to legal regulation, even though it seems slow I am sure particularly to those who may be younger. the evolution of this whole ethics reform, that has come extremely quickly for law. And I know, in industry it’s probably much faster, but it’s funny because I think it’s been very fast and moving quicker every year. I am not sure you describe it the same way, but I’d be really interested in hearing how you would describe the current landscape of ethics reform.

Erin Gerstenzang: I do think that it’s moving faster and I think it’s picking up pace every year. I think it’s a really exciting time to be a part of it, and as a late-comer I am very cautious to be critical of people who have come before me because so much great work has been done. So, I don’t disagree with you, Sharon, I think that that change is moving very quickly, and that’s what’s so exciting to be part of this, and part of this project, because one of my favorite things about working on this project has been connecting with so many other groups and organizations who are all very closely aligned and working towards the same goal, and really, genuinely just trying to improve the legal system and not necessarily pushing an agenda.

And I think that was my expectation was that there was going to be so much agenda pushing whereas I think that there are a lot of really genuinely good people out there who want to make improvements all around. So, I think it is picking up pace, I think it is moving, and I think we are going to continue to see it move much more quickly.

But on the other hand, I do think when you look back and I would say, when I started — I am somewhat of a newcomer to this space, when I started really paying attention to what was happening in the legal ethics space, I was right as the 2020 Commission was coming up maybe and that was in 2012, and they have taken three years, I think it had started in 2009 to look at these rules and say, well gee, the modern world of practicing law seems to be different maybe than perhaps it was in 2000 or in 1983.

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So, let’s see what we need to do, and after three years there were very incremental changes that didn’t really make clear what one in particular on the rule — Governing Competency Rule 1.1, it looked at that rule and they don’t really change that rule, they changed — I believe they added about seven words to comment six, which said, well, essentially the spirit of it is, we recognize that technology is now more of a part of the practice of law. So, lawyers not only are you on the hook for knowing about keeping abreast of changes of the law, but also any technological advances that might benefit your client you need to know about.

And so that is not very meaningful regulation in my opinion or direction, it’s not clear what that means, it’s not clear how that could be serving the public interest. So, I think as the newcomer at about that time to me, it did feel slow and somewhat as an outsider nonsensical because my thought about it, thinking about it was I loved rules, I always loved rules and I love that lawyers should be expert rule-makers. So why would this be so difficult, why would this so difficult to institute change? But really, it was clear by 2012, so much had changed that surely there was more to be said on this topic other than, lawyers, you are on the hook for knowing about technology.

And more problematically for me, I am a criminal defense attorney, in my world that’s very interesting, that’s not giving us a lot of direction about what we need to know, that’s just putting us on the hook for something that especially at that time, we didn’t have really any direction as to what that meant as practitioners. So, if the practitioners don’t understand the regulation, how could it possibly be serving the public?

Jim Calloway: Well, we can certainly appreciate that; you certainly have poked at a sacred cow of the technology community because that was a hard-fought battle that many of us are glad we at least got that much done.

Erin Gerstenzang: I don’t mean to disparage those efforts at all, I mean, obviously coming in at such a newcomer in 2012, from the outsider’s perspective that was what was difficult to reconcile, but then I later did learn that that was not any insignificant effort to get there.

Jim Calloway: Well, of course, part of the questions about this is who is seeking change? I have seen some of the loudest voices for change, and some lawyers, I will say, would interpret their voices as change the rules, so my online legal services can better compete with lawyers, and of course, lawyers hear that was some measure resistance, some people like me that have been the access to justice community, you probably understand that a little bit more than others. But, are there people that are working for change now and what would you identify as really the challenges to changing the rules in such a significant way?

Erin Gerstenzang: Well, I think that there are a bunch of different groups and people and I think The Access to Justice Movement is so inspirational and pushing that change because it really highlights some of these problems that otherwise go unnoticed, how many people really aren’t getting access to legal services and how could we push forward on that, and then, obviously, you hit obstacles with regulation and that sort of highlights these issues.

But, I think that there are those private companies that are pushing for change and I think it’s easy to write them off as just being looking for profit, but really they are also innovators and the legal industry in general, I think really can benefit from that. So, if we all agreed about it, then we would probably be doing something wrong. So, you want to have people who are pushing the envelope and forcing us to reevaluate our positions because the only one thing we know is change is constant.

So, the regulation really should be changing and keeping up with the change in the world that we see. So, I think that that’s good to get those pushes, and I think the ABA is working for change. I mean, as I have embarked on this and really started to roll up my sleeves and get into it more seriously, there are very few people that I have interacted with who have said, no, I think everything is fine and we don’t need to change. So, I think it’s just a question of how people are going about changing.

I think April has done really amazing work and I am so impressed with their work back in 2015 where they really tackled legal advertising rules and came up with amazing recommendations that were well-researched and supported by data, and those kinds of efforts are really where we are seeing change and they are making a huge difference.

Jim Calloway: Well, again, we appreciate that. Are there any other challenges before we move on?

Erin Gerstenzang: Well, I mean, obviously there’s the challenges of this system, there’s no one deciding body, right? So, it’s not that just one or a handful of people need to be convinced. This is sort of a system where we have a base set up, all have been operating on their own system, and it’s funny because one of the things that I got to do over the last week years is go state-to-state and talk about legal ethics, and of course, before you stand up in a room full of attorneys in any given State, let’s say Montana, you better know, you better will be familiar with Montana’s rules before you try to talk about legal ethics.

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So that gave me a really good sense of where these differences are, so it’s not that everybody agrees about and has the same regulation, but I think also there’s this notion of one thing that’s great about legal ethics and reform is, once one State stands up and does something, for the most part it makes it a lot easier for a change to come in those other states. But, I think one of the biggest challenge is getting over that first initial hurdle, of convincing somebody, some State, some Supreme Court just picked our neck out and do something that the other states are not doing and that’s a really scary thing to do especially if you don’t have a lot of data to support the decisions that you are recommending.

Jim Calloway: Well, I certainly appreciate that and I have joked with lawyers before that they sometimes hear the word “innovation” and defined it as, “a way to get into unanticipated trouble”. So, we will always help them try to move beyond that; but, before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is “The Data-Driven Ethics Initiative” and our guest is Erin Gerstenzang, who runs a boutique criminal defense law practice in Atlanta, Georgia and is also dedicated to helping other attorneys succeed in their practices.

So, Erin, how do you think practitioners today are affected by the current regulatory scheme?

Erin Gerstenzang: I think practitioners are for the most part not interacting with it or very — they don’t feel like they have a voice or power to influence it. And so, while we are self-governed profession there doesn’t seem to be much input from the practitioners and when rules no longer make sense, there’s not really a clear outlet for them, and some attorneys and some firms can afford to take on the State Bar, but a lot of attorneys cannot, and I think a really good example quickly of that is a case that came out of Florida, a couple years ago where a firm was challenging this rule that prohibited them from claiming a specialty in — I believe it was mass tort or unsafe product cases.

Florida had a rule that you couldn’t claim to be a specialist unless you had the Board certification, and these were the categories, and their category of law practice wasn’t up for that. So even though — and they ended up challenging this and they took it to court, and the court held like, look, they are clearly have expertise in this area, but the rules are prohibiting them from advertising and from proclaiming themselves that.

So, you really have to go through, jump through so many hoops that have a voice to challenge these rules that on their face don’t make sense as applied. So, those are sort of the big issues. I think the smaller issues and the issues that interested me when I first started, came to it is, we are not getting answers about what the rules are. So questions like, can I Facebook friend my judge or the Judge Facebook friends me? Is that permissible? Can I have my investigator friend a witness on Facebook, can I research jurors on LinkedIn, can I talk about my case if it is part of the public record? Do I have to include my full name and address in a Google AdWord campaign if it links to my website?

Some states have answered these questions, but a lot of the states have been very slow to give any guidance for advice. So, we have a regulatory scheme but doesn’t — it’s very disconnected from the day-to-day practice of law for a lot of practitioners.

Jim Calloway: And, Erin, who are the stakeholders in the data-driven ethics initiative?

Erin Gerstenzang: Obviously the most important stakeholder I guess is the public. This is what although — a lot of lawyers tend to mistakenly believe that the State Bar is set up for them. That’s not what the regulation is for, it’s not to protect lawyers, it’s to protect the public, but obviously it impacts practitioners, it impacts — I think regulators. Academics have been talking about and working in this space for a very long time. We now have these relative newcomers with these legal-tech companies and groups organizing around access to justice initiative.

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So, I think that there are a lot of stakeholders, and I think it’s important to not be doing this behind closed doors, but to make sure that all of those voices are heard.

Sharon D. Nelson: How does taking a design thinking approach help, Erin? I’m not sure I understand the design thinking approach.

Erin Gerstenzang: So, design thinking is a different kind of problem-solving, right? Legal problem-solving, as we already discussed, usually comes from historical precedent; we love to look backwards. Engineers take a different approach to solving problems, right? They know, hey, I need to build a bridge, they have a tightly prescribed constraint from the very beginning. The bridge needs to hold this many cars, they know what the final product is going to look like and then they need to design within those constraints.

Design thinking is different, that’s not how designers answer problems. The answer is found during the process. The data talks back, so, as we’re collecting the data, we’re defining what success looks like and every time we get a new data that will inspire new questions that requires us to get a new data.

In the legal context it’s funny. This is a really good example, the Florida Justice Technology Center was created by the Florida Bar to create online tools and resources for people to address their civil legal needs.

One of the tools they built, they decided to focus on was eviction issues in rural part of the State. When they picked the eviction issue because they had data, that said, this was a big issue for people in this State. And so, they built this tool, however, they learned during the process as they’re building this tool that, those people who needed the legal help they weren’t looking for legal help online.

And so that was an iterative process where they had to go back to the drawing books and say, okay, well, we came up with the solution that we thought was going to work, we tried to implement it, it didn’t work because of this constraint that we were not aware of, and so, let’s go back to the drawing board.

Jim Calloway: I assume there’s some data out there and you’re still looking for other data, is there data already in existence that will be useful in this effort?

Erin Gerstenzang: That’s a very good question, and one, we’re very nervous about. We kicked off this project because there were two hypotheses that we had; one was that data existed, and then the second is that data will be helpful and instructive. So, as it turns out, there is data and the more we look, the more we find and it’s really fun and interesting data out there.

So, that’s good, and the real process is sort of grouping it altogether and putting it in one place where we can actually analyze it and glean insights from the information that actually is out there, but also allows us to see where the whole information may be and where we need to go, and uncover new data.

Jim Calloway: Before we move on to our last segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today, our subject is, “The Data-Driven Ethics Initiative”, and our guest is Erin Gerstenzang, who runs a boutique criminal defense law practice in Atlanta, Georgia and is also dedicated to helping other attorneys succeed in their practices.

As you go through this initiative, Erin, does the legal community you think need to commission research to better understand today’s legal market? Is that part of the problem?

Erin Gerstenzang: I think it’s part of the solution. I think that it is something that we should start doing and lawyers hate to do this. As Jim mentioned, I get to talk about design thinking for law firms and one of the key components are running a modern law firm is asking for feedback from clients. And as I confess, the first time I did it, the only reason that I forced myself to do it was because I was going to be giving a talk on it and like, well, if I’m going to tell their people they need to do it, I need to do it.

And it was extremely painful to send out that first survey to clients and get data on here. You are satisfied with your services and your experience of my law firm. But, it’s so important to do and it’s so important to do that’s why every time you take a flight on Delta, you immediately get an email, hey, we want feedback. How was your flight? How was your experience?

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Anytime you use any real professional service, you’re often getting inundated by those questions, and that’s not because fancy agencies or marketers said, this is going to be a good idea to bring in new clients. It’s because that data is actually really helpful in improving those services.

So, going out and commissioning research and getting that feedback, we have to shake this lawyer think of, from the 1800s of, well, I know what my clients need and I am in the best position to judge how to give it to them.

We need to be open to the possibility just like all other industries are quickly embracing, one of the best sources for if we’re getting it right is to go out and get that information from the world.

I was recently talking to some good folks in Utah State Bar and they actually are running really interesting surveys and they’ve done a consumer survey and then they did a business consumer survey, where they are asking the public about how lawyers are serving their needs.

And I love that effort and I would strongly encourage all of the states to start doing that, and it is painful, because you don’t know what the answers are going to be, and you may not want to hear about the answers. But, I think it’s very hard for us to sit and rely on precedent only without developing current and ongoing streams of data, so that we can evaluate how the rules are working and how lawyers are performing, and what we might need to do to better serve the public interest.

So, I would love for State Bars to get comfortable with the notion of running these surveys on a regular basis because we should know that information.

Jim Calloway: And Erin, how will you determine if the Data-Driven Ethics Initiative is actually succeeding?

Erin Gerstenzang: I think it will be succeeding if regulators, policymakers, Supreme Court justices are using the data and finding it helpful and using it in those conversations about reform. That is really the primary press of this project is to just — we sort of have a moral imperative every individual lawyer because I’m just a practitioner, there’s nothing special about me.

But we all have a duty to make sure that we’re living up to the promise that we will be self-regulating in a useful way and we will be serving the public interest. And so, I think that we’ll note this particular project is succeeding as if it’s helping move that conversation along and helping people get to better answers; regardless of what those answers are, getting some better answers that are more informed and not just based on one particular problem-solving tool that we as lawyers love to use as our default, which is relying on precedent.

Sharon D. Nelson: Well, it sounds like this is going to be a really interesting project and initiative. And I hope you’ll stay in touch with us, Erin, because we’re sort of watching this with fascination. Both, Jim and I, have been close to all of this and watching the regulations evolve it and we certainly think that they need to evolve and have both been a part of that process as well.

But this initiative is something new and interesting to watch and we thank you so much for coming on the podcast today and helping us to understand exactly what it is.

Erin Gerstenzang: Absolutely. Thank you so much for having me.

Sharon D. Nelson: That does it for this edition of The Digital Edge: Lawyers and Technology. And remember, you can subscribe to all of the editions of this podcast at legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us in Apple Podcasts.

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

Sharon D. Nelson: Happy trails cowboy.

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