Call the lawyers! But what about those who can’t afford it?

The American legal system is going through a significant shift – and lawyers who don't believe it are in for a shock, according to the president of the American Bar Association. And these changes won't just affect the US.

On his way to England to celebrate the 800th birthday of the Magna Carta, William C Hubbard stopped off in Dublin with 40 lawyers from the ABA, to meet the Bar Council and the Law Society.

Sharply dressed, complete with green tie, and with a soft southern accent, the unassuming head of one of the largest professional organisations in the world says the two Irish groups and the US association have a very close relationship.

“We share many of the same values,” Hubbard says. “Many Americans have great affection and affinity for Ireland.”

One of them is his partner in Nelson, Mullins, Riley and Scarborough, based in Columbia, South Carolina.

"Richard W Riley, who was the secretary of education for both terms of the Clinton administration, is fond of saying that's the only job he ever wanted in government, except to be the ambassador to Ireland, and he meant it."

Hubbard was appointed president of the ABA last August. He also chairs the World Justice Project, a multinational, multidisciplinary initiative to strengthen the rule of law worldwide, and he is a permanent member of the US Fourth Circuit Judicial Conference.

Sitting in the lobby of Dublin’s Conrad Hotel, he talks about another of his enterprises, the Commission on the Future of Legal Services.

“According to research undertaken by an affiliate of the association,” he says, “about 80 per cent of the poor in modern America, and more and more of those with moderate means, don’t have access to civil legal services, despite our having lawyers who are underemployed and unemployed.”

Cost and complexity

Barriers include cost, the complexity of the system and understanding how to access it, and “a real lack of public understanding when someone has a legal problem”. As a result, consumers have shifted to online services because they get a quicker, less costly resolution.

“Now, those systems don’t have built-in protections like our system has built in over decades and even centuries,” he says. “What we are trying to do through the commission on legal services is to synthesise the learning and the best practice from some of these online platforms and combine those with the traditional values that protect consumers and the public.”

To that end, the commission invited Rich Barton, founder of online travel business Expedia and online real estate company Zillow, to speak at a conference last month about how outsiders look at the sector and find opportunities for "disruption".

In 2012, $66 million (€58.4 million) was invested by venture capitalists in start-up technology companies that provide legal services – “not law firms”, Hubbard emphasises. Last year the figure topped $1 billion (€885 million).

Modria, an online dispute resolution company, claims to resolve 60 million disputes a year online, he says. "Modria has now contracted with the state of Ohio to manage all of the tax appeals for that state through an online process that's based on an algorithm."

He says technology is moving faster than the regulatory framework, and not just in the United States.

“Lawyers in the US who don’t believe there is a significant shift are due for a really big wake-up call,” Hubbard warns. “I paraphrase the lyrics of Carol King’s ‘I feel the earth move under my feet’ because that’s where we are, at least in the US, and lawyers in other jurisdictions around the world are facing similar issues.”

Hubbard says the US regulatory framework was essentially developed in the 1900s, and served the country well in the 20th century.

“But in many ways it seems to be impeding access to justice in the 21st century. What we are trying to do is look at the regulatory framework, the technologies available that could be beneficial to consumers and synthesise that into a blueprint for the future.”

Social justice

While it could be assumed the commission’s drive is about ensuring that lawyers continue to have work into the future, Hubbard is coming at it from a social justice perspective.

One of his commitments when he became president was to improve legal efforts on behalf of domestic violence victims. He describes domestic violence as a “scourge”, with one in three or four women experiencing it in the course of their lifetime and 15.5 million children a year in the US witnessing it.

“What we are trying to do is train lawyers in the law of domestic violence to help victims secure restraining orders,” he says.

In an effort to address the gap in legal services in family law cases, a new category of practitioner is being piloted. In Washington, with the authorisation of the Supreme Court, Limited Licence Legal Technicians (known as triple LTs) are providing legal assistance on family court matters.

Being more creative

To those family lawyers who object, Hubbard’s response is that lawyers are not doing an adequate job of addressing people’s needs: “We have to be more creative, we have to look at new options and new alternatives to provide legal services to meet this need.”

He speculates about what could be done with smartphones and other devices to allow, for instance, someone getting an eviction notice to simply snap a photo and forward it to a portal, and have that notice assigned to a representative who can provide some form of assistance, someone who has a special knowledge about evictions.

“So we are trying to develop a new model,” he says. “Maybe the legal service provided will not be the bespoke service, the perfect service, but some representation in some form is better than people going it alone with no assistance.”