The lack of access to justice is startling. Statistics from law school case books teach us that the legal needs of 1 out of 429 individuals who can afford to pay an attorney are met. The contrast in access to those who cannot pay is even more shocking. Only 1 out of 6,415 individuals who cannot afford to pay have access to legal services. Answers to this problem vary. Some suggest – and some states have required – that lawyers accept court appointments in order to maintain a license to practice law. Others suggest that the government should address the issue by simplifying legal procedures and providing adequate funding for organizations such as Community Legal Services (“CLS”) to fill the void. Another option that is often discussed is to deregulate the provision of legal services. However, a new and potentially controversial proposition has emerged: what about placing legal services in the hands of non-lawyers using artificial intelligence?
Artificial intelligence is frequently used in discovery protocols requiring not just “keyword” searches, but calling for sophisticated searches of words and terms that are connected. With the proper quality review by attorneys, such programs accelerate the document production process and reduce the cost of producing electronic records. In the context of discovery, artificial intelligence is used in conjunction with human (attorney) reviewers. Essentially, the artificial intelligence uses a sophisticated algorithm, and the work product of attorney reviews is one of the key inputs into that algorithm. Of course, while the effective implementation of artificial intelligence in the discovery process is still largely dependent on attorneys, the ability of artificial intelligence to curate and streamline the review process substantially increases efficiencies, which reduces the cost to the client.
Another example is LegalZoom – a tech company “dedicated to making legal help accessible to all.” LegalZoom uses artificial intelligence to direct its customers to specific form documents, such as simple wills and powers of attorney. It began in 2001, focusing on estate planning, business formation, and intellectual property protection. Yet, in 2010, perhaps realizing that matching forms to legal needs cannot adequately be performed by software alone, it created an independent network of attorneys for LegalZoom customers who sought to obtain personalized legal advice.
BBC News recently highlighted software company DoNotPay that won an Access to Justice Award from the American Bar Association. The app helps users draft legal letters, but not by using prescribed forms. Instead, subscribers explain in writing the nature of the problem and the software program suggests the best “legal” language. The types of problems are not monumental – appealing a parking fine or canceling a membership to a gym – but they affect thousands. The subscribership of this app is claimed to be 150,000.
But is artificial intelligence alone the answer to the access to justice problem? Even LegalZoom does not go that far. Instead, LegalZoom recently applied for an alternative business structure (“ABS”) license in Arizona in order to hire attorneys directly – as employees – to provide legal advice to customers instead of continuing to use the independent lawyer network. An ABS structure is required because Rule 5.4 in the Model Rules of Professional Conduct and the analogous rules in most states prohibit non-lawyers from owning any interest in an entity authorized to practice law for profit. Other restrictions also exist – but not in Arizona. Arizona eliminated its version of Rule 5.4 in January 2021 and instituted the concept of the ABS.
The ABS is an inherently new concept. The central pillar of the business model being that non-lawyers may own a stake in an ABS providing legal services – a structure previously forbidden by the ethical rules in the United States. In Arizona, non-lawyers may own, have an economic interest in, manage, or make decisions in an ABS that provides legal services. In addition, lawyers will be permitted to split fees with non-lawyers. However, even in an Arizona ABS, under no circumstances may legal advice be provided by someone who is not a lawyer or other individual licensed or certified by the Arizona Supreme Court and permitted to provide legal services.
The idea behind an ABS is, by allowing non-lawyers to own, drive, and control business ventures that provide legal advice through lawyers, more capital can be invested into law firms, which will ultimately reduce the cost of representation for clients. Still, just as attorney reviewers are a key – and arguably a necessity – ingredient in the implementation of artificial intelligence in the discovery sphere, attorneys and other licensed legal professionals remain a necessity in providing legal advice, even under the more flexible ABS model. So, even a technology company dedicated to increasing legal access continues to recognize the importance of lawyers in providing legal advice in the areas covered by its business model.
Technology clearly has a role in increasing access to justice. But lawyers still must be involved to ensure there is increased access to competent legal services. At this juncture, it appears the future of the relationship between artificial intelligence and lawyers is synergistic rather than antagonistic. As described by Attorney Scott Garner in his 2017 piece for the Orange County Lawyer, “AI technology advances can provide opportunities to lawyers. Lawyers . . . can continue to provide legal services, while utilizing the ever-increasing array of AI and other technology tools to improve their service and efficiency.” Let’s hope it stays that way.