View through a Crystal Ball darkly…

Inspired by an interesting talk by SF writer Charlie Stross1 about what society might be like in 40-50 years time, I was thinking about what the Scottish Legal Profession might be like in a similar timescale. The problem as Mr Stross points out is that it is fairly easy to extrapolate current trends over the next 10 years, but after that you know that currently unforeseeable events will occur and change things significantly.

There are a number of “predictions” that various “experts” make about the future of the legal profession. For example, for the last 30 years there has been a common prediction that the high street small firm/sole practitioner would become extinct, with massive firms sweeping up all the business. It could happen, but it is highly contingent on events – for example if a law were passed banning law firms and only allow sole practitioners2, that prediction would come crashing down.

Likewise, the current division of Solicitor and Advocates is not set in stone. Various jurisdictions have a unified profession, and we have some overlap with Solicitor-Advocates now, but there is no particular reason why the Faculty of Advocates should not continue for centuries more – though there is equally no guarantee that it will.

So this is therefore this is not so much a crystal ball prediction about what WILL happen, as considering the current trends and the seeds of new trends, and to what is therefore the most likely extension of these.

Firstly, there will lawyers in 50 years time, at least to the extent of there be people who provide legal advice and represent others in official proceedings. What their numbers are, their title, how they are regulated, how much they earn, all of these are completely contingent on too many things to be predicted.

However, there are certain types of work which are currently the “bread and butter” of Solicitors which will be gone, at least in the form we have them now. To balance this, there are likely to be new fields of work currently unknown which will develop with changes of technology and legislation.

For example, almost certainly domestic conveyancing will cease to be a “legal matter”. Why? Well consider current trends. We have Land Registration and ARTL taking away a lot of the requirement of a fully qualified Solicitor to examine and prepare title deeds and making them simple administrative tasks needing only someone of sufficient trustworthiness to carry it out. There are standard missives, removing a lot of the requirement to have a qualified person deal with the contract. Banks seem increasingly to view the Solicitors job to be an insurance policy, so that if the client defaults and the Bank does not recover loan funds in full, it seeks compensation from the Solicitor involved claiming the Solicitor must have failed to disclose something. With 10% of every conveyancing fee being charged as a PII premium, why should Solicitors do this rather than simply cutting out the middleman and the Banks obtaining insurance directly? Add into this the common complaint that purchasers want the legal fee for a purchase to be less than what they pay the plumber to plumb in the washing machine, and you can easily foresee a time when people are as likely to employ a Solicitor in the purchase of their house as they are when buying a new car.

This does not mean there will be no role for lawyers in a house purchase, but it will not be the role they have had for the last couple of centuries. Just like buying a car, a lawyer will be wanted when something goes wrong with the sale. Also in Scotland most estate agency has traditional been carried out by Solicitors; instead of the estate agency service being to bring in the legal work, the actual legal transfer could be an “add on” service by the estate agency business which already has contact with people wanting to buy a house. Like the estate agency the actual work would be carried out by non-qualified staff and in competition with banks and others offering the same service.

Of course, in such an arrangement, the parties would need to pick which standard contract they are going to use, and this show a niche where the expert lawyer will still be required, to create and maintain such documents.

Historically lawyers have been the “guardians of knowledge” being paid to disclose what the law is on a topic and to apply this knowledge in the production of appropriate documents. With the new information age, this role will be unsustainable. While lawyers could enter the market in providing online document drafting, the phenomena of Open Source and Free Culture will slowly build up a reservoir of well drafted, accurate documents available for free.

A current trend is for people to obtain their own legal information from the internet, and use standard documents obtained online. At present this provides much business for lawyers, fixing the mess when they have tried to use a foreign jurisdictions advice or some of the badly drawn deeds available. However in time expert systems will allow people to pick the right online source for their location3, and selective forces will cause an increase in quality of documents available.

But this gives an indication of what will be the most important division in the future legal profession/business. Looking at the IT industry, you can divide it into the developers, who create the tools – hardware and software, and operators who use those tools, and a similar division will arise in the “law information” business. There will be those who provide a support service aimed directly at individual members of the public, and those to develop and maintain the tools.

So there will be those who create the legal documents and tools. They will be a combination of experts in law and information technologies – whether as teams or as individuals. They will keep everything up to date, monitoring changes daily and updating the styles and other tools.

Likewise court practitioners can be considered as operators. They will use the expert systems to keep themselves informed of the current law and deal with the court process, but the “added value” given to clients will be the advocacy skills. Whether this is in person in traditional court buildings or online in some form of virtual court, this is still a valuable expert service that people are likely to pay for.

There is also a role for those providing other services to the public – while people could just use the developers services directly, some will prefer to pay an expert to do the work on their behalf. Just the same as currently one could buy computer hardware, install Open Source software and deal with the maintainance oneself, but many will buy preconfigured packages or pay for a regular IT support package.

Who fulfills these roles is a whole different question. Solicitors and Advocates could evolve to fill all of them before alternative suppliers appear; alternatively a whole new range of suppliers could arise spreading out from banking, IT providers and general entrepreneurs. Here the Scottish tradition of the lawyer as “man of business” could well stand in good stead4, providing firms are willing to lead the way in concentrating on client service and changing working methods.

Ways of operating will change. While in rural areas clients still want to walk into a high street office and see someone5 it is commonplace for people to want services online and on demand. There is no reason why current legal practitioners cannot provide this. But moving on, this leads to another change; does a legal practitioner actually need an expensive office building where there is ubiquitous data access, service provided to the practitioner online, and services given to clients online? Losing the expense of the legal office reduces costs, which permits a cheaper service. Clients could be seen on their own premises (instead of having to go out to see a lawyer), or meeting rooms hired for appointments. Currently regulatory issues make this a less attractive option, but this will change6 and the practitioner can carry around a “virtual office”7.

Another issue increasingly important with the online, always connected, world is inter-jurisdictional issues. If someone in Scotland has their data stored in a server in Iceland8 stolen by someone in USA who publishes it for profit from a server in China, where does the case go to court for recompense? A court practitioner in Scotland could potentially be dealing with foreign laws on a much more regular basis than at present. However, if the “expertise” of what the law says and the required procedure is just taken from the online service provider, there would be no particular problem9 but this emphasises how the traditional advocacy expertise of such a lawyer would be so critical for their business. On the other hand this would be an expertise potentially in competition on a worldwide basis, not just among the local jurisdiction.

1. http://www.youtube.com/watch?v=0-CI70y99gA
2 Highly unlikely, but history is full of unlikely events
3 With ubiquitous computer processing and the “internet of things”, the neighbour could well automatically tell people what the local legal jursidiction is.
4 Although in recent decades some firms have been forgetting this history in favour of acting purely as human checklists for routine legal transactions.
5 Something that they are often no longer getting through lack of rural service provision.
6. Or else providers who are not hamstrung by such regulations will take over.
7 Another potential business expansion here – providing back office services to a whole lot of independent Solicitors (possibly operating under the same brand – oh we just brought Faculty of Advocates model to Solicitors)
8 Under contract imposing English law with an ISP with corporate headquarters in Germany
9 On assumption that regulations about such work develop to keep up with real world requirements

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