Alternative Legal Models Task Force MSBA

Minority Report February 27, 2017 By Angela E. Sipila

The Task Force focused on human alternative legal models.

I concur in the

recommendations, but add that the technology element is of greater importance. There

have always been paralegals with competency equal to lawyers. Technology as a tool now undeniably enables quality legal service from non-lawyers by improving checklists,

tracking, updating, giving access to forms, etc., all within the computer. What we are facing in the changing environment of law is the computer being a lawyer.

This Task Force, in saying that a non-lawyer human can provide legal advice and

service at a sufficient level of competency for the public, is, in my humble opinion, unable to say otherwise now that a computer can deliver the knowledge of a law degree. Since we

are recommending extending malpractice to non-lawyer humans, we should consider

imposing requirements on the corporations that promulgate legal service computer programs.

The legal service markets are already integrating with non-human providers, which

operate under the fiction that the legal service is provided pro se. Commercial, web-based legal services currently have free reign in the marketplace, with no malpractice insurance, confidentiality or the other requirements particular to the field of legal service. The

discussion of what we can and should do to regulate non-human legal service providers will be similar to the discussion of regulating human non-lawyer legal service providers.

The Task Force is recommending that non-lawyers be allowed to provide legal

services with the hope that people who cannot afford a lawyer will afford the legal service of a non-lawyer. Speaking as a private legal service provider who markets to the price-

sensitive, there is a sizable minimum that needs to be charged to cover basic business costs

to provide consistent quality service. Quality non-lawyers will not be cheaper than the lower-cost lawyers. There is some reason to think non-lawyers will be inclined to stay at the low-income end of the market, because there is the reality of the Unauthorized Practice 1 of 3

of Law operating at the low-income end of the market (see the ads on www.craigslist.com for legal services). When I was on the MSBA committee for UPL, we observed public

acceptance of un-licensed service and recommended educating the public on the value of a law license.

To the extent that consumers need or want a human for assistance with legal

services, non-attorney legal services should be tied to the use of *approved* or somehow insured software programs.

Lawyers are tied by the requirement of technological

competence to vet their technology, and we lawyers look to experts and the experience of others for advice. While the marketplace may be the best test of software for delivery of quality legal services, this disrupts the norm of publically licensing legal services for consumer protection.

Non-human legal advice is rapidly improving, as “deep neural networks” and

“blockchains” advance technology into the realm of giving perfect answers and

“frictionless” transactions. The next wave of computer software has deep learning ability,

it can write itself without the involvement of a human being, and it can rework what it does

based on information from the written word, natural language and research. Artificial Intelligence thrives on precedent, rules, standards, details, and perceived social good, and it will completely invade the lucrative market of legal services.

At some point in our lifetimes, software alone will provide a thorough legal service

that exceeds what a human lawyer can deliver in terms of remembering and considering every known permutation of fact, law and drafting option. “It” will make fewer mistakes

than human lawyers by virtue of always “thinking slow” with deep reasoning, pulling from

an inhuman trove of experience. Humans think fast, which enables life but disables justice. Lawyers are humans trained to “think slow” to deliver justice, but we will be no match for a

computer with all human legal knowledge in it. Although, there are still travel agents, so there will be a market for a human interaction for legal service. We cannot force someone to hire a human (lawyer or non-lawyer) when the computer creates a sufficient product at

lower cost. The current sentiment that lawyers have work fixing computer-generated problems will not apply in the future as every computer-generated problem is resolved and

does not happen again. The interactive technology we see now is in its infancy, literally, and it makes silly mistakes. Yet it will learn and grow, and never forget. 2 of 3

The idea of a legal decision rendered without human oversight is accepted by

millions of Americans who already experience conflict resolution by algorithm on eBay,

Facebook, Amazon, and in online role-playing games. In all respects the algorithm is better, even its freakish lack of human control and impartial void of sympathy. Even as it seems necessary to have human review and monitoring of all legal-service commercial software

for adherence to established norms of justice, human review needs time and introduces bias.

I volunteered to be on the Alternative Models for Legal Service Delivery Task Force

to look at all alternative models, and we did, even as the recommendations focus on what

we can understand. Our recommendation to allow any person to deliver legal services merely with the approval and under the malpractice coverage of an insured lawyer, in practice punts the need for standards to the malpractice insurers (and it needs a caveat to

exclude disbarred lawyers to maintain punitive measures.) The malpractice insurers, after careful study, may impose standards similar to the “independent” model proposed by this Task Force, except that insurers do not have the tool of an ethics board for a profession.

If we create ethics rules and enforcement systems for non-lawyers, this regulation

should extend to software programs, blockchains, and “anyone or thing” that delivers legal services.

http://fortune.com/ai-artificial-intelligence-deep-machine-learning/

http://www.lawpracticetoday.org/article/lawyersblockchain/?utm_source=January17&utm_medium=email&utm_campaign=January17LPTemail http://www.lawpracticetoday.org/article/disruptive-innovation-legalindustry/?utm_source=January17&utm_medium=email&utm_campaign=January17LPTemail https://bol.bna.com/dont-worry-attorneys-ai-comes-in-peace-perspective/ Kahneman, Daniel, Thinking Fast and Slow, (2011)

http://www.economist.com/news/business/21716661-platforms-have-benefited-greatly-special-legal-andregulatory-treatment-internet-firms http://legalexecutiveinstitute.com/alsps-new-study/ https://lawyerist.com/144695/access-justice-efforts-changing-consumer-legalmarket/?utm_source=Lawyerist+Insider&utm_campaign=fc8da052f7-2017-02-27-LawyeristInsider&utm_medium=email&utm_term=0_30d7a1f6e2-fc8da052f7290688065&mc_cid=fc8da052f7&mc_eid=0fa2b8ebbe

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https://www.forbes.com/sites/danielfisher/2017/02/24/college-students-use-ai-to-build-legal-researchfirm/#ec46af424d9f

https://qz.com/893576/lawyers-are-being-replaced-by-machines-that-read/ (Compares the future of hiring a lawyer to riding a horse for transportation.)

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