I am of the mindset that if I am complain about something I’d better be the first to raise my hand to volunteer. And while I have not complained about access to justice, I do complain about how the business of law just isn’t getting it right, especially where legal professionals are concerned.
As a member of the California State Bar’s Task Force on Access Through Innovation of Legal Services, we have been tasked to see how (alternative) legal service providers (technology companies) can ethically operate and provide services in California.
The task, in and of itself, is challenging Rules 5.4 (fee sharing) and 5.5 (unlicensed practice of law) of the code of professional conduct, which will not only impact the delivery of legal services through technology companies, but will impact law firms by opening up fee sharing, and perhaps in time, the actual ability for legal professionals to take an ownership stake in law firms.
You see, no matter how much we legal professionals try, there is only so much we can do without that ownership stake. Our seats at the table are warm, but when push comes to shove, we don’t have the vote. And that is what keeps most law firms from innovating.
Moving the Chains
Just like in football, progress is all about progress. I don’t expect to walk away from this task force having solved all the problems associated with access to justice. But if we can move the ball, just far enough, we can get that next down, setting us up for our next play.
There’s more work to do, and it’s wrapped up in lots of old thoughts and assumptions. We’re chipping away at it via this task force, and others working on diversity and inclusion. Yes, They are related.
Sub-Committee on UPL/AI
Today’s agenda for the UPL/AI sub-committee is very exciting and encouraging for those of us having these conversations. I encourage you to click the links and read the detail, and do the same for the Subcommittee on Rules and Ethics Opinions and Subcommittee on Alternative Business Structures/Multi-Disciplinary Practices.
B. ACTION / REPORT AND RECOMMENDATION
- Recommendation: Retain California’s case law definition of the practice of law and do not seek to “codify” it in a rule or statute
- Recommendation: Add an exception to the prohibitions against the unauthorized practice of law providing “safe harbor” that permits a (certified/registered/approved) entity to engage in practice of law activities using technology as the primary delivery system
- Recommendation: Regulation of an entity permitted to practice law using technology must include the establishment of adequate standards that regulate both the provider and the technology itself
- Recommendation: If an entity is permitted to practice law using technology, then the nature of the technology used should not be limited or restrained by any concept or definition of “artificial intelligence”
- Recommendation: If an entity is permitted to practice law using technology, then that entity should be required to provide adequate privacy protections similar to the protection afforded by the attorney-client privilege and a lawyer’s ethical duty of confidentiality
- Recommendation: If an entity is permitted to practice law using technology, then that entity should be required to provide adequate data security
- Consideration of report and rationale for recommendations
- Overview of Regulation of Practicing Law in California
- Definition of the Practice of Law in California
- Restrictions on the Practice of Law in California by Persons or Entities Not Licensed by the State Bar of California
- Task Force Recommendations regarding Regulation of Practicing Law in California
- Regulation of Artificial Intelligence
- Federal Law regarding Regulation of Artificial Intelligence
- State Law regarding Regulation of Artificial Intelligence
- Purposes Served by the Regulation of Artificial Intelligence
- Additional open questions with respect to artificial intelligence and unauthorized practice of law or suggestions for additional recommendations
The Task Force is working its way towards the draft recommendations, which will be available for public comment during July and August, with the final recommendations going to the California Supreme Court by the end of the year.