Nontraditional Representation Faces Latest Growing Pains

New Jersey lowered the boom on AVVO and LegalZoom the other day, finding their practice models violated a number of ethics rules, including fee sharing with nonlawyers and operation of an unlicensed referral service. I doubt this marks the end of them it's more like a speed bump but what our chief justice had to say the other day on alternative forms of dispute resolution is probably much more important.

I have been following AVVO, LegalZoom and a host of other players in this "disrupted" legal market for years, trying to figure out whether they are going to really change the way we do business or just cut the pie into thinner pieces. Interestingly, as these enterprises matured, they seemed to grow more like traditional law delivery systems instead of revolutionizing things.

Last I looked, LegalZoom was using lawyers licensed in every state to offer its low-cost legal services in addition to its DIY component, mooting the unauthorized practice issues that plagued it and were the bar's bulwark against competition. AVVO adopted a bit of a different model, soliciting work and then subcontracting it out to local lawyers for a share of the fee. Either way, it was lawyers (mainly solos and small-firm folks) delivering advice and quick "one-off" stuff directly to consumers at prices that were pretty hard to beat. It was a good deal for those who needed legal help, but not so hot for those expecting to make big money, unless you own the service.

As I said, a more interesting story was the chief justice's remarks at the CBA annual meeting lunch. She described a concept being explored that, if I understood her correctly, might spark the revolution many of us thought would come from the internet and all these e-players. She asked us to consider whether every problem coming to the courthouse really needed to be solved in an adversarial proceeding, each party equipped with a gladiator, the sides separated by a "vs."

The chief judge of the family division told me the other day that the share of cases with no lawyers or at least one unrepresented party seem to be remaining static at more than 80 percent. In housing I think it's much higher, at least on the tenant side. Ditto for small-claims defendants. The truth is that none of this stuff is rocket science, and most cases will be resolved pretty much as any experienced lawyer, judge or court personnel would predict.

Folks who understand machine learning and artificial intelligence tell me that these tools are now sophisticated enough to settle most garden-variety disputes in accordance with established rules, codes and precedents with pretty much the same outcome as if a real person was the decision maker. Ebay, PayPal and others use only computer-driven dispute resolution mechanisms for tens of millions of small disputes every year. The machines do them quickly, efficiently and cheaply.

I was listening to a judge at a seminar a while ago explaining how he "nudged" the parties in family cases toward a resolution which he thought he could approve. In family, as opposed to most civil work, the parties need a judge to approve a settlement to guarantee fairness and equity. I wondered why the parties really even needed to be there, each with a lawyer, negotiating under the watchful eye of the judge when the result probably would be the same if they each just filled out a detailed questionnaire and financial affidavit and gave the problem to an experienced judge or a well-designed algorithm to resolve.

This is what I (perhaps naively) thought the LegalZooms were going to do for (to?) us. Instead, they've matured along the lines of traditional legal service providers, albeit just different enough to cause folks such as the New Jersey regulators some concern. I never guessed the courts might be the real innovators. They say you never see the bullet that gets you. Maybe this was mine.

One thing courts don't have to worry about if they set out to revolutionize law, legal delivery services and dispute resolution systems is bar associations, turf protection, unauthorized practice rules and ethics and disciplinary codes. Thus, they can pretty much follow their muse and just might rethink the whole enterprise in ways that begin to fill the "justice gap" that continues to plague many of our less fortunate citizens who can afford neither the time nor the fees to play the game as it always has been played.

While bar groups spend their time, money and political capital raising barriers to internet providers, judges and justices might quietly and effectively do a lot more to change the whole model. Whether that's a good thing may be an issue of perspective. If access to justice is the primary concern, courts might hold the answer.

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