Author: Elizabeth Gallo

Earlier this summer, the California State Bar’s Task Force on Access Through Innovation of Legal Services met to discuss proposed rule changes regarding the legal practice of law in the state. The meeting was particularly focused on addressing the ongoing issue in California – and across the nation – of access to justice. The results of the CA Task Force’s meeting were many, including some more controversial ones: allowing non-lawyers to deliver legal services and have an ownership interest in law firms as well as allowing technology-driver legal systems to provide legal advice to the public. While these would be allowed under proper regulation, the details of how they will be regulated was not addressed at the CA Task Force meeting. Should other states follow suit, this can change the landscape of the legal industry quite significantly.

Not a New Conversation

The discussion over allowing non-lawyers to practice law is one that has been going on for quite some time. Part of the reasoning behind the support for the idea is to increase access to justice for individuals who are unable to afford to pay a lawyer. The presumption is that when non-lawyers are allowed to enter the legal marketplace and provide services, the increase in supply of legal services will decrease costs (or, at least, provide incentive to decrease costs).

The American Bar Association’s Task Force on the Future of Legal Education issued a report in 2013 recommending allowing non-lawyer technicians into the legal marketplace to increase the public’s access to justice. In 2012, the state of Washington implemented a limited license legal technician program. Under the ABA’s proposed amendments to the rules technology-driven legal systems, in addition to licensed technicians, would be able to practice law. The idea seems to be that artificial intelligence (AI) would be able to provide legal advice – once the technology becomes available and is regulated properly.

Solo and Small Firms Likely Affected

Should non-lawyers be allowed into the practice of law, it is likely that the hardest hit legal service providers will be solos and small firms. This is because these types of firms are the most likely to provide legal services for low-income and middle-class markets. These firms may have to lower their legal fees to compete and may not be able to without going into the red. Notably, the California Lawyers Association has yet to issue a statement regarding the CA Task Force’s recommendations.

A young attorney, Dorna Moini, came up with a great idea while doing pro bono work as an associate at Sidley Austin. She realized that the repetitive nature of her work – essentially, filling out applications for domestic violence restraining orders – was inefficient when it came to time and costs. As a result, she came up with a way to automate the process of filling out forms. In collaboration with a software engineer, they developed software to address this issue. The product is called Documate (formerly known as HelpSelf Legal) and the software engineer is now her chief technology officer.

Using AI in the Law

Documate allows attorneys to create online forms that guide the user through the process of filling out their documents. The software can be coupled with any type of legal form that (1) does not carry a lot of risk and/or (2) does not require legal analysis for completion. The purpose of the software is to take tasks away from attorneys that do not require human supervision.

The target market of the software, initially, was initially civil legal aid groups as well as those who do not qualify for legal aid but cannot afford an attorney. When the software got some coverage from legal websites, it attracted interest even from those in private practice. Documate is sold to all types and sizes of private-practice firms, as well as nonlegal organizations, but is provided free of charge to legal aid organizations.

Technology Trends in the Law

Not surprisingly, technology is becoming more prevalent in all areas of life, including the legal field. Below are some key technological issues that all attorneys should be aware of if they want to stay in the know:

• Legal analytics have become essential – detailed analytics is entering research platforms such as LexisNexis and Westlaw, as well as other areas such as Fastcase and Gavelytics;
• The cloud is no longer something to fear – what once used to be a source of fear is now essential to most, if not all, law firms are using cloud-based computing;
• Practice management is key – whether it is Clio or Rocket Matter, the practice-management market is both stabilizing and maturing; and
• Tech competence has entered the CLE realm – the Model Rules of Professional Conduct, and even some state bar associations, are requiring attorneys attending continuing education in technology.

Simply put, attorneys need to not only know technology but be on the front end of innovation if they want to continue to succeed in their careers.

In 2017 now-retired Supreme Court Justice Anthony Kennedy noted in an opinion on a First Amendment case before the Court that the impact of social media in the cyber age was revolutionary. Indeed, Justice Kennedy went further to note it was one of the most important places to exchange ideas and likened it to a public square or park. The case was Packingham v. North Carolina and it reflected Justice Kennedy’s position that the public forum doctrine should evolve with the times, and not leave new forums of debate to remain unprotected.

The Legal Battleground

The question now is where does this leave the future of free speech in the context of social media. As communication evolves so do standards of private platforms, attempts at censorship by government actors, and the rise of extremist speech – all happening in the world of digital media.

Government blocking users: Government officials removing, or even blocking, critical comments online has become more and more prevalent. Another example of this is the blocking of speakers using critical language on Twitter feeds or comment pages on government websites. These actions violate the principles found in the landmark 1964 First Amendment case, New York Times Co. v. Sullivan.

Private censorship of speech: Much of social media’s censorship, however, is not initiated by the government but rather by private entities – specifically, the social media companies themselves. These platforms monitor content that violates their own terms-of-service agreements which, in turn, are reacted to by outcries of censorship. Recent examples include a controversial radio show host being banned from Facebook, Apple, and Youtube for engaging in hate speech.

Policing extremist content: Private entities, unlike the government, are not subject to First Amendment constraints. Accordingly, their obligation to regulate private expression that calls for violence or advocates hate is unknown. The First Amendment to the U.S. Constitution protects hate speech, unless it crosses into narrow unprotected categories of speech. These include incitement to imminent lawlessness, true threats, or fighting words.

As can be seen, the age of digital media continues to evolve. Not just by the platforms that are available, but by the public’s use of this platform, which is becoming more global and more polarized as issues are easily debated by millions online. The question is how quickly the law will catch up to the digital age and how, exactly, it should approach these important concerns.

For more information on free speech, visit the U.S. Court’s website or The Freedom Forum Institute.

The Court of Appeals of Wisconsin recently held that a judge’s acceptance of a Facebook “friend” request from a party with a pending motion creates the appearance of impropriety. Accordingly, such a social medial relationship warrants replacement of the judge. The Court did not, however, go so far as to draw a bright-line rule prohibiting the use of social media by judges altogether.

Private Facebook Friend Request

In re Paternity of BJM, the parties were involved in a child-custody dispute where one party accused the other of domestic abuse. The parties participated in an evidentiary hearing and subsequently briefing with the lower level court. Just three days after the parties submitted their briefs to the court, the presiding judge accepted a Facebook “friend” request of the accusing party. The new social media connection was never disclosed by the judge to the accused nor his legal counsel.

The accusing party then “liked” almost 20 of the judge’s posts and commented on several more. The judge did not “like” any of the accusing party’s posts, respond to any of the accusing party’s comments, and none of the social media activity was directly related to the pending child-custody dispute. Nonetheless, the appellate court held that the timing of the newfounded online relationship gave rise to the appearance of bias. The accusing party and judge’s lack of disclosure, moreover, further added to the appearance of bias.The appellate court warned that the judiciary should understand that online interactions – just like those in the real-world – must be treated carefully.

Context and Timing Matters on Social Media

While there is no per se rule prohibiting judges from having Facebook friends with parties or litigants, the ruling out of the Wisconsin Appeals court illustrates how context and timing is important. Indeed, it is likely that the pending nature of the ruling before the judge coupled with the ex parte nature of the connection and lack of a prior relationship between the judge and the accusing party drove the higher court’s ultimate decision.

For this reason, practicing attorneys should keep an eye on overzealous clients and make sure they prevent them from engaging in inappropriate contacts that could ultimately have an adverse effect on their legal matter. Spend a significant amount of time discussing social media in general with clients and explain how online activity is scrutinized in litigation. If you should find yourself in the situation of the attorney for the accusing party, it is critical to disclose the communication.

Of note, the American Bar Association (ABA) has issued a statement on this particular matter noting that not all social media connections and contacts are inappropriate.