Brave new legal world?
Are legal aid lawyers really set to be replaced by digital services as some IT evangelists suggest? Catherine Baksi investigates how the profession is responding to the rise of new technology.
Given firms’ experience of the Legal Aid Agency’s online billing system, it’s little wonder many are unconvinced by digital legal services.
To what extent can IT plug the access to justice gap left by cuts in legal aid? Will digital services ever be more than a poor substitute for traditional forms of legal help, or are there some things that can be delivered better on line?
These are questions that the legal profession is (or should be) increasingly asking itself.
The LASPO cuts gave new impetus to the development of online services, aimed at making advice available more cheaply and more widely. These initiatives range from law firms, advice centres and charities putting information online, to conducting appointments via Skype (rather than face to face), programs allowing clients to complete court forms remotely, through to innovative sites that aim to diagnose legal problems (see box).
With little prospect of legal aid being restored, as the Lord Chief Justice, Lord Thomas of Cwmgiedd, said recently, the justice system needs to adapt so people can access it without lawyers. However, given firms’ experience of wrestling with the Legal Aid Agency’s flawed client and cost management system – which cost £35m and is slower and less efficient than the system it replaced – it’s little wonder that many remain unconvinced by the prospect of digital legal services.
Rise of ‘lawyerless’ clients
At the IT-evangelist end of the scale is Prof Richard Susskind (author of such books as The End of Lawyers?). He rejects suggestions that technology will never be capable of carrying out many of the tasks currently done by lawyers and other professionals. Only the complacent would underestimate the sophistication of artificial intelligence, he says. The extent to which professionals are replaced by machines will be dictated by ethical concerns rather than technological limitations, he believes. ‘Sometimes the buck should not stop with a robot, no matter how high-performing. It feels wrong to leave it to a machine to decide whether to switch off a life-support system or pass a life sentence,’ he wrote recently.
He also questions just how well the previous status quo, so robustly defended by many lawyers, actually serves clients.
‘Lawyers warn that legal aid cuts undermine access to justice … In truth we cannot afford our professions, their methods are often antiquated and the expertise of the best is enjoyed by only a privileged few,’ he wrote.
Just as we are coming to terms with the idea of driverless cars, so we need to ‘get comfortable with the idea’ of ‘lawyerless clients’.
Of course, another big question is who will provide the services for these ‘lawyerless clients’, and will they come from inside or outside the legal profession?
Jen Hyatt describes herself as a ‘serial social entrepreneur’. She is the founder of Big White Wall, a website that provides peer support for people with mental health problems, with online back-up from clinicians, and is now training her sights on the legal sector.
Hyatt believes that elements of the BWW model can be translated across to providing legal services. ‘BWW gives members access to support 24/7 and from a place that suits them,’ says Hyatt. Its data analytics are sophisticated enough to be able to determine from the words someone uses whether their depression or anxiety is sufficiently serious to require professional intervention, she says.
She believes the same ‘social model with expert wrap-around’ could be applied to law, creating an online community and an ‘intelligent triage system’.
BWW claims high success rates among users (‘95 per cent of members feel better’) but, of most relevance to the legal debate, it says that by using BWW, 80 per cent ‘self-managed their psychological distress’.
Having found a vehicle for what might be called ‘doctorless patients’, Hyatt is now gearing up to provide a service for the ‘lawyerless clients’ that Susskind describes.
She is in talks with a well-known company that has developed algorithms to respond to basic questions that enable it to provide employment law advice. If all goes according to plan, the site, working title Outlaw, will be available next year.
Though Hyatt is gung-ho about the role technology can play in legal services, she does not think it can replace lawyers altogether. But, she observes, that face-to-face time is expensive, and agrees with Susskind that the ‘era of the dominance of the expert model is disappearing’.
Chrissie Lightfoot, entrepreneur and author of the Naked Lawyer series, says: ‘Currently IT/cognitive computing and most forms of AI require data, lots of data. So the service/product/advice is limited to the “machine pool of information” and its quality and depth. The quality of the output will be determined by the quality of the input: the questions asked in creating the “machine brain”, ie helping the machine learn, and the quality of the data.’
‘We’re a long way off from AI that can replace lawyers,’ says LAG director Steve Hynes. Lightfoot adds that while lawyers won’t disappear all together, as machines become more intelligent, more of the work they now do will be done digitally.
Alan Humphreys, deputy chief executive of the Legal Education Foundation, is an IT enthusiast. One of LEF’s five funding strands is dedicated to backing technology projects. Humphreys believes not just that IT is a way of maintaining access to justice in straitened times, but that there may be some things that machines can do better than people. He points to IBM’s use of AI in healthcare. ‘Machines are better at diagnosing patients than doctors,’ he says, suggesting that the same could be true in the legal field. He accepts, though, that machines cannot yet deal with a client’s emotional needs.
Humphreys adds that, while the IBM technology can be applied to law, ‘you will always get exceptions and you need to spot them. If you don’t, that could lead to negligence actions.’
The regulation problem
Humphreys’ comment highlights a key question: who carries the can if an AI system gets it wrong? Lightfoot notes the obvious benefits of using online services are cost, speed and accessibility, but she warns clients may be left unprotected by professional indemnity insurance in the event of error.
In a recent article (‘Online platforms – lawyers act now!’), Law Society Gazette columnist Jonathan Goldsmith seems to imply that demanding online platforms should be subjected to similar levels of regulation as other legal advice maybe one way for lawyers to halt their spread. ‘We can’t say we weren’t warned. The threat from unregulated legal services provided by online platforms has the potential to dwarf all our other problems, even cuts to legal aid,’ he writes.
There is nothing in Goldsmith’s piece about the potential for IT to open up new markets for firms, or to tailor services for clients who may be poorly served by the way legal services have traditionally been delivered.
Eddie Coppinger, director of the University House Legal Advice Centre, is adamant that new technology should not be used to replace specialist legal advice, but to facilitate it.
Former LAG director Roger Smith, meanwhile, notes the problem of those who do not have access to the internet or the literacy skills to make use of it (though he adds that video information can overcome the latter).
Julie Bishop, director of the Law Centres Network, points to another issue: the huge cost of developing IT, which is especially difficult for charities to afford.
Digital legal services: a snapshot of what’s on offer to clients and which organisations are taking a lead
CourtNav
CourtNav is an online tool developed by the Royal Courts of Justice Advice Bureau in partnership with City firm Freshfields Bruckhaus Deringer to help those going to the family courts without a lawyer.
It asks users a series of questions and their answers complete the relevant court forms. Help text on each page assists with users’ questions and they also have online support from a solicitor who can answer questions throughout the process.
Once clients have completed the forms, a solicitor checks them before they are printed and lodged at court.
Its chief executive, Alison Lamb, estimates that the process reduces the time taken to complete forms from 45 to five minutes, freeing up advisers for those who require face-to-face help.
Legal Action Group housing law app
LAG is developing an app that will assist intermediary advisers in helping clients dealing with housing law problems.
Director Steve Hynes explains that the app, currently at the alpha development stage, will perform the same function as LAG’s handbooks: taking users through the relevant stages and considerations in cases.
He hopes that the next phase, the beta version, will be online next year to be tested by practitioners.
Hynes emphasises that while software engineers have written the program, the content has been developed by specialist housing lawyers.
‘The law doesn’t lend itself well to computer programs. They are only as good as the people designing the contents. Software doesn’t do the thinking – that’s done by lawyers,’ he adds.
University House Legal Advice Centre
The centre – one of the oldest in London – helps clients access specialist personal injury, clinical negligence and general contractual advice from barristers at Hailsham Chambers using Skype.
It uses a paperless case management system, scanning all documents, so the barrister sitting in chambers can access them electronically and deal with the client who is sitting in the law centre.
‘We are not instructing counsel with pink ribbons; it’s a completely different gig,’ says the centre’s director, Eddie Coppinger.
The centre uses the same advice system with community partners and has funding from the Access to Justice Foundation to establish Skype access points in Tower Hamlets, to allow it to work with a growing network of local partners.
Birmingham CAB
This project involves an online ‘game’ to teach frontline workers how the social security tribunal process works in an engaging and interesting way.
It will also offer follow-up face-to-face informational group workshops. The interactive tool will be shared for free through the CAB network and could be shared with other voluntary organisations on subscription.
Citizenship Foundation
This is a free-of-charge mobile phone app to educate young people about their legal rights and responsibilities using scenarios, quizzes and games. Users will also then be able to access an eBook version of the Young Citizen’s Passport for detailed information on their legal rights and responsibilities.
Bott & Co flight delay claim service
The law firm enables clients to make a claim through an entirely online process and without ever meeting or speaking to a lawyer, similar to eBay’s online dispute resolution process.
Relate online family dispute resolution
Since February 2015, the relationship support service has been developing an online family dispute resolution platform that allows users to access affordable multi-disciplinary support and self-guided tools during separation. The model claims to be the first of its kind in the UK and is being developed by a company called Modria and the Hague Institute for the Internationalisation of Law, a justice innovation lab, which launched a similar system, the Rechtwijzer divorce and separation model, in the Netherlands. Relate is intending to launch this new platform in spring 2016.
LawGeex
An online tool using AI technology to carry out contract reviews.
As Chrissie Lightfoot explains, the LawGeex engine reads, analyses and compares a contract to thousands of others, identifying any missing or uncommon clauses.
Bishop is keen to exploit digital opportunities but is conscious of those groups who will always need human assistance. She points to the fact that, while most clients have smartphones, they often don’t have any credit on them.
In a similar vein, Alison Lamb, chief executive of the Royal Courts of Justice Advice Bureau, says that one of the barriers they discovered after introducing the award-winning CourtNav service, where family clients complete forms online, is the number of people who don’t have printers at home and have to come to the bureau to get them printed out. ‘If we could watermark CourtNav-checked forms, this would help even further with digital submission.’
She adds that, possibly in contrast to Bishop’s experience, CourtNav clients have proved confident in using their smartphones to scan in marriage certificates, a process that speeds things up by avoiding inadvertent mistakes with things like name spellings and dates. ‘Every single one of our CourtNav users does this,’ she says.
‘Change is happening at a rate of knots,’ Bishop says, ‘and we have an obligation as an organisation that works with marginalised and vulnerable people to make sure they are not further isolated by not being able to access the technology needed for them to get advice’.
No AI, however sophisticated, will ever be able to help the client who turns up in a state of great distress, with a carrier bag full of paperwork that they don’t understand. The human touch will always be needed in these cases – although whether, in a time of funding cuts, all of that human touch is best provided by a lawyer is a different question.
It is one that former Law Society president Lucy Scott-Moncrieff is actively seeking to answer. She has launched a project that is exploring whether IT could be used to bring together voluntary sector groups like the Trussell Trust with legal advisers.
She says: ‘There are lots of organisations that use volunteers in all sorts of ways to support people in distress and form trusting relationships with them. These distressed people are often poor, and qualify for legal aid. They often have social welfare problems that lawyers can help with. If we can find a way of making the voluntary organisation the link with the legal advice-giver, the advice-giver may be able to do more within their existing income than they currently can.’
Scott-Moncrieff stresses that the project is at an early stage. But, as Hynes says, and fortunately for many: ‘We are not in a post-lawyer world yet.’ ■
MyLawBC: the view from British Colombia
The Legal Services Society provides legal aid in British Columbia, Canada, on a continuum that includes legal education and information, duty counsel and full representation.
Online self-help has been part of its services since 2003, when it launched a family law website, which began with DIY divorce guides and expanded to over 1,400 pages.
As an online service provider, the LSS pays attention to emerging research into how people find and use legal information on the web. This led to its current project, MyLawBC, an action-oriented website, due to launch by the end of this year, that is simple, interactive and deals with everyday legal problems. It is working with the Hague Institute for the Internationalisation of Law and Modria, both of which worked with the Dutch Legal Aid Board to develop the Rechtwijzer platform.
MyLawBC will use questions and answers to diagnose legal issues and lay out an action plan, and include a family negotiation platform, with the potential for online ADR at a later date.
Back in 2003, the bar expressed concerns that people would prefer the LSS’s online self-help guides to retaining counsel, who could provide a higher level of service. Although the site now receives more than a million visits annually, the local bar has not been disadvantaged (in fact, there continues to be more demand for low-cost family services than it can provide). Research has found most people self-represent only once they have run out of money for counsel, not by choice. The LSS’s family site is now used by the private bar and supports unbundled services.
Similarly, MyLawBC is seen as disruptive by lawyers not familiar with the LSS’s family law website and those who have not faced what some perceive as online competition. Although wills materials have been available for years in print, and personal planning documents are already online, MyLawBC will attract a wider audience to these resources.
Some pointed out a risk of abuse of vulnerable elderly people if it is too easy to access documents like powers of attorney. More generally, whether the MyLawBC concept has been met with distrust or enthusiasm has depended on whether or not one is an early adopter of technological innovation and willing to employ non-traditional means to increase access to justice.
Communication to address issues and respond to concerns such as those above is essential. The LSS has engaged a wide variety of stakeholders from inception to content development to participation on advisory committees. This process has led to project champions among the lawyers, mediators, social service agencies and others that see the value of empowering people to solve legal problems.
The LSS’s primary concern is providing effective services to those on low incomes. It asks if its clients have tools and ability to access the internet. It has found that, in 2015, 63 per cent of its Aboriginal clients, 85 per cent of family duty counsel (FDC) clients and 68 per cent overall have a computer, laptop or tablet at home, 95 per cent of which are connected to the internet. Aboriginal clients are often the most marginalised on account of colonisation, and FDC clients have higher than average legal aid client incomes. The 68 per cent is a drop from 2011, when 75 per cent had a computer at home.
The LSS believes this is because more people are relying on their phones to access the internet. Its data shows 28 per cent of its site visits come from mobile devices, up from 13 per cent two years ago; 77 per cent of Aboriginal clients, 90 per cent of FDC clients, and 80 per cent overall own cell phones, 80 per cent of whom use them to access the internet, although this drops to 60 per cent for Aboriginal clients.
Regardless of the wide access to the internet, the LSS believes in-person services remain essential to empower vulnerable people through introduction and assistance with online tools.
A broad-based community network ensures the most vulnerable get triaged to appropriate assistance, whether lawyers, community agencies or online tools.
Sherry MacLennan
Director, public legal information and applications, Legal Services Society.