tent legal market” of potential customers who can’t afford the going rate.10 Taken as a whole, evolving combinations of innovations has the potential to trans- form practice, including for small firms and solos. Three such innovations are the use of software, unbundling legal services, and the delivery of legal services in settings outside the traditional law office setting, including over the Web. An optimistic view of the future is that lawyers, aided by tech- nology, can provide quality legal services at prices that make them affordable to some who would otherwise go without.11
Ideally,
potential clients can be served by licensed, competent lawyers, and with the benefit of malpractice insurance. We have worked to make students aware of the ways in which technology can enable new business mod- els that are hopefully beneficial to both law- yers and the public, with a strong emphasis on the way standards of competence and ethics are evolving in light of technology. It has been an exciting experience to work with such a new and rapidly evolv- ing field. It was not an uncommon occur- rence for new material, such as a newly re- leased ethics opinion to change the direc- tion of the discussion. Over the three years of teaching the course, we were able to see first one and then two revisions of an im- portant and widely watched North Caroli- na Formal Ethics Opinion generally well re- ceived by proponents of e-lawyering. The opinion addressed to what extent a law- yer may make us of the various “Software as a Service” (“SaaS”) applications that can help lawyers either increase produc- tivity in a traditional setting, or deliver le- gal services via a “virtual office” or “e-law- yering” setting.12
E-lawyering proponents
were pleased when the ethics committee traded a number of specific security re- quirements seen as unworkable in favor of a flexible standard. At the heart of the re- vised ruling was the statement that; “This opinion does not set forth specific securi- ty requirements because mandatory secu- rity measures would create a false sense of security in an environment where the risks
are continually changing. Instead, due dili- gence and frequent and regular education are required.”13
Vermont recently endorsed
this approach, referring to it as the emerg- ing “consensus view.”14
I am convinced that we initiated our ef-
fort at Vermont Law School at exactly the right time. All around are signs that the practice of law is changing because of technology. The ABA is involved in an on- going effort to revise the Model Rules of Profession Conduct. A great number of the issues looked at by the “Ethics 20/20 Com- mission” involve technology either at their core or at least as an important compo- nent.15
Prominent e-lawyering practitioners
and proponents, such as Stephanie Kimbro and Richard Granat, are busy on the lec- ture circuit. Likewise, a steady stream of books, particularly from the ABA Law Prac- tice Management Section continues to ad- dress issues of lawyer use of technology.16 In my own experience here in Vermont, nu- merous of the CLE programs of the Central Vermont American Inns of Court chapter, of which I have been a member for three years, have had strong technology compo- nents. Programs on social media, e-discov- ery, privacy, and fourth amendment issues immediately come to mind. A program on the problems caused by “robo-signing” in mortgage litigation was to a large extent dealing with problems caused by misuse of technology. Prof. Goodenough and I traveled to New
York to participate in the most recent edi- tion of the SubTech conference, dedicat- ed to the substantive use of technology in legal practice and education.17
It was
the most recent of several such meetings I have participated in during the last sever- al years, and Goodenough has participated in even more. I was struck by the gather- ing sense that the moment for a change in how we use, think, and teach about tech- nology in law school and practice is com- ing. Of course, as one longtime participant in the field put it at another recent meet- ing, he’s had the feeling for thirty years that the field is on the cusp of a revolution. Nev-
ertheless, it seems obvious that technology has been, and will continue to, drive major changes. The Web has already reshaped how we do many things, from banking to renting movies to retail shopping. Law seems a pe- rennial latecomer to change, and there are indications consumers would like to see similar convenience-enhancing reforms in how they procure legal services.18
The rela-
tively slow pace of change in law, relative to other industries and professions, can surely in part be attributed to traditional conservatism and risk-aversion among law- yers. Professional regulation also plays a part. We have made ethics issues an impor- tant part of our course at VLS, examining not just how to conform to existing regu- lations, but also a critical look at the costs and benefits of those regulations. Any dis- cussion of the issue must acknowledge that professional regulations impact negatively on innovation. 19 The sense I got from our last SubTech meeting was that a confluence of factors including the perceived crises in legal ed- ucation and the legal profession is help- ing make the moment ripe for change.20 Nothing was off the table—from criticism of ABA accreditation of law schools to re- vision of Model Rule 5.4, which prohib- its non-lawyer ownership in law firms, to the recent reforms enacted in the United Kingdom under the Legal Services Act.21 Non-lawyers will soon be able to provide a great many legal services, and consumers will soon be able to procure legal services where they buy groceries. Alternative business models are an im- portant factor because many innovations require upfront costs (such as building a computer system) that the law firm mod- el is ill-equipped to supply (especially un- der the dominant billable hour paradigm). The issue has been examined before in the U.S. While apprehensions about “Sears law” killed an ABA proposal that would have loosened such requirements in 1981, the UK will soon have “Tesco law,” so- named for the country’s biggest retailer.22 Proponents of change here will be watch- ing to see how UK reforms affect the qual- ity, price, and availability of legal services there. At the higher-dollar end of the spec- trum, changes such as in the UK (and also Australia) will also exert pressure on the American system to reform.23 Change may not be so sudden here. The ABA, as part of the Ethics 20/20 project, has already apparently ruled out reforms as sweeping as those seen in the United King- dom.24
However, even under current rules, technology is changing the practice of law. We have been teaching our students in light of the rules currently in place, and even they leave room for massive change.25 We hope that if and when a time comes for
36 THE VERMONT BAR JOURNAL • FALL 2012
www.vtbar.org
Preparing for the Increasing Pace of Technological Change
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