Improving the Delivery of Affordable Legal Services
Staff Counsel, ABA Standing Committee on the Delivery of Legal Services
The traditional methodology for the delivery of personal legal services in America results in a system that is often too costly for low and moderate income households. Consequently, people without discretionary incomes are required to forego legal representation by lawyers in many instances. Frequently they fail to address personal problems through viable legal solutions.1 Although the legal profession has explored methods of enhancing efficiencies and reducing the costs of its services over the past several years, it has not yet effectively created a paradigm of affordable legal services delivery. As a result, people are pursuing their own legal issues without full representation, in effect creating a consumer rebellion against the costs of legal services for some fields of practice.2 One response to the proliferation of pro se representation is for lawyers to offer services on an unbundled bases, shifting from a full-service model, which may be unaffordable or lacking in value to many potential clients, to the consumers menu-driven unbundled model, where the client selects the legal assistance according to the clients needs and wants and the services costs.3
While lawyers have used technology for word processing, legal research and data management for decades, the advent of the Internet as a mechanism for communications created a means to institute unbundled legal services and facilitated efficiencies far beyond those available prior to the commercial use of the Internet. The inefficiencies of the traditional model of legal services delivery can be assessed by an examination of the operations of that model. Lawyers are beginning to use the Internet to make operations such as client development, intake and court filing less time-consuming. They are using the Internet to move toward a digital paradigm, which should reduce costs and expand legal services to the latent legal marketplace of those who have been unable to afford the traditional model.
However, it is important that the use of the Internet in the delivery of personal legal services goes beyond efficiencies and becomes reforms. The Internet has transformative powers and the capacity to fundamentally change business models. To the extent lawyers do not take advantage of the digital paradigm, consumers will do so in ways that preclude lawyers altogether.4
This paper briefly examines the unmet legal needs of consumers, the proliferation of pro se representation and the delivery of legal services on an unbundled bases. It then assesses a series of operational inefficiencies within the traditional model of delivering personal legal services. These operational inefficiencies are found in client development, client intake and screening, client education, form preparation, geographic barriers, on-going client communications, dispute resolution and ancillary business endeavors. Evolutionary reforms that have been implemented over recent decades are discussed for each of these components, followed by an analysis of the use of the Internet by legal service providers in digital strategies designed to reduce the inefficiencies. Finally, the applications of digital design principles are explored for each emerging strategy.
II. The Unmet Legal Needs of Consumers and the Self-Help Response
The unmet legal needs of consumers are well documented and dramatic. In 1994, the American Bar Association published Findings of the Comprehensive Legal Needs Study. The study surveyed low and moderate income households to assess their legal needs and related solutions for 1992, the year prior to the data collection. Nearly half (46 percent) of moderate income households reported having at least one legal need in the prior year. Less than half of those consumers (43 percent of those with a legal need and 22 percent of those overall) consulted a lawyer about their problem.5
According to this nationwide study, 39 percent of those from moderate income households addressed their legal problems through the legal system, while approximately one-quarter (23 percent) addressed the problem on their own and another quarter (26 percent) reported taking no action.
While legal solutions were prevalent for a few areas of law, including domestic relations and wills and estates, most examined areas reported high incidence of self-help outside of the legal system, or complete inaction. Over 60 percent of the legal needs involving housing matters and personal or economic injuries were either ignored or addressed outside of the legal arena. Over two out every three legal matter relating to consumer issues and employment were addressed outside of the legal system or not at all.6
While many, if not most, people are foregoing legal solutions altogether, some research indicates an increasing number of people are addressing their legal problems on their own, proceeding pro se. In some jurisdictions, self-representation has become the norm for divorcing parties. According to a report from the National Center for State Courts examining the incidence of representation in divorce cases in urban jurisdictions in 1991, only 28 percent of divorces proceeded with both parties represented by a lawyer. While in 18 percent of the cases overall neither party had a lawyer, that figure was 40 percent or more in Washington, D.C., San Diego, Tucson and Oakland.7
A California study that examined family law matters from 1991 to 1995 concluded that one party appeared pro se in two-thirds of all domestic relations cases and in 40 percent of all child custody cases.8 Similarly, a recent Boston Bar Association report found that 66 percent of the cases in Probate and Family Court in that jurisdiction involve at least one pro se party.9
Research examining the trend of pro se litigation in domestic relations in Maricopa County, (Phoenix) Arizona, found that the incidence of pro se doubled from 1980, when one party proceeded without a lawyer in 24 percent of the cases, to 1985, when one party self-represented in 47 percent of the cases.10 A subsequent study in Maricopa County five years later showed that one of the parties was unrepresented in 88 percent of the cases and no lawyer was involved in more than half of all divorces in that jurisdiction by 1990.11
While finding less frequency of pro se representation than these other studies, a 1996 New York State Bar Association report concluded that middle-income people are increasingly representing themselves.12
Research identifies various reasons for increases in and high incidences of self-help. The ABA study of Maricopa County found that the primary factor in the decision to proceed pro se was the individuals belief that the legal task was simply enough to complete without formal assistance. The cost of representation was a secondary reason, even for those with annual household income up to $50,000.13 The California research corroborates the notion that pro se representation is not solely because people are too poor to hire a lawyer. The report indicates that in many counties more than half the family law parties proceed unrepresented, far exceeding the percentage of those who are poor. The study found that "...a significant portion of family law pro pers in California are not poor and not poorly educated."14
The American Judicature Society report, Meeting the Challenge of Pro Se Litigation identifies anti-lawyer sentiment and the growth of do-it-yourself materials, including books, form kits and software, as additional reasons to the increase of pro se.15
However, the cost of personal legal services is, if not the sole influence, a vary substantial one. For many, the cost of legal representation is simply unaffordable. A 1996 Maryland study reports that 57 percent of pro se litigants there proceeded pro se because they could not afford a lawyer. An additional 18 percent reported that they did not want to spend the money on legal services, while 21 percent indicated they proceeded pro se because they thought the case was simple enough to do so.16
The AJS report establishes that value and cost are separate issues. "The consumer strands of self-representation began in the 1960s, with its emphasis on the publics right to fair value in the sale of products and services, including legal service delivery."17 Later the report states, "The cost of litigation is perhaps the most significant factor that has directly influenced the growth of pro se litigation. While there is some evidence that ordinary litigation is cost-effective, most people would agree that attorneys fees are high and are affordable primarily by institutional and corporate clients."18 For some, primarily the indigent, proceeding pro se may be the only alternative for a legal solution. For others, however, the simplicity of the procedure and value of self-representation motivate people to pursue legal remedies without full representation.
III. The Traditional Method of Delivering Personal Legal Services and the Unbundling Response to Self-Help
The practice of law has been characterized as one that is divided into two hemispheres, which seldom overlap.19 Practitioners either provide services in areas such as domestic relations, bankruptcy and criminal defense directly to individuals, commonly known as personal plight legal services, or they provide services to corporations and institutions. This hemispheric divide effects the status of lawyers within the profession, as well as the nature of the lawyers relationship with his or her client. Although the corporate lawyer has more prestige than the personal plight lawyer, "corporate lawyers wield relatively little influence over their powerful, informed, and wealthy clients. Lawyers in this sector of the profession tend to view themselves as technicians who do what their clients want."20
On the other hand, the personal plight lawyer is likely to represent a client who has limited experience with lawyers and the legal system, resulting in greater power, authority and, perhaps, a different level of obligation toward the client. Therefore, lawyers in this hemisphere need to spend disproportionate efforts in client development, intake and client interaction throughout the case compared to those serving the corporate needs of sophisticated business clients. Yet, both types of lawyers earn their living primarily by selling their time, generally billing on an hourly basis. Consequently, operational inefficiencies that consume the lawyers time will have a more severe impact on the personal plight lawyer when they are serving clients who may conclude the service is either unaffordable or of limited value.
As consumers have increasingly migrated toward self-help, some lawyers have advocated a controversial adaptation of the traditional full-service model for the affordable delivery of personal plight services. The approach, known as unbundled legal services or discrete task representation, is a consumer driven menu format that is not unlike the model of delivery used by lawyers in the corporate hemisphere. Recognizing that the pro se litigant is unable or unwilling to pay for complete representation, but needs some source of information to pursue his or her legal matter, lawyers who unbundle their services create an opportunity to serve an otherwise unrepresented and precluded market. Lawyers may unbundle initial advice and information, form preparation, second opinions or negotiations, for example.21 Advocates of unbundling not only focus on the expanded marketplace, but also on the empowerment and decision-making authority that stays with the consumer.
Although these attributes would seemingly be advantageous to both lawyers and clients, unbundling is controversial because of perceptions that it leads to unethical conduct and/or increased incidence of, or exposure to, malpractice.22 While these issues are beyond the scope of this analysis, they are rebuttable. There are many examples of successful unbundled practices. TeleLawyer is a fee-based hotline that provides callers with legal information and charges by the minute.23 Court Coach is an advice-based practice that provides information and direction to pro se litigants.24 However, most lawyers have been unwilling to adapt their practices to this model. The Maryland study, for example, indicates that nine out of ten survey respondents who had contacted lawyers for personal legal matters were not given an option of a reduced fee in return for the lawyers limited representation.25
One possible reason lawyers resist models of unbundled services centers on the need to expand client development and convert to a high-volume practice. For example, a lawyer practicing in a jurisdiction where there are 10,000 divorces a year may make a living representing 100 of the 20,000 divorce litigants in a full-service model, but may need several time that number of unbundled cases. This would necessitate a cost-effective method of client development and/or an expansion of the pool of potential clients. The operational inefficiency of client development and geographic barrier of a traditional practice would have to change for the lawyer to successfully reach the marketplace that emerges as the result of the proliferation of pro se litigation. In rural settings, this model becomes even less feasible.
Innovative uses of the Internet, or the adaptation of digital strategies, are being employed to overcome operational inefficiencies in personal plight representation in both full-service models and unbundled services. Not every strategy discussed here is appropriate for every practice setting. However, the implementation, adaptation and modification of these designs should generate greater efficiencies that work toward a reduction in the costs of personal legal services to the extent that practitioners can reach a broader marketplace and perhaps recapture a portion of those litigants who now proceed pro se.
IV. Operational Inefficiencies in Personal Legal Services and the Digital Responses
A. Client Development
Historically, the legal profession has had great disdain for self-promotion. In 1908, the American Bar Association banned lawyer advertising and solicitation in its first set of ethics rules, entitled the Canons of Professional Ethics. Canon 27 stated, in part, "The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust..."
The professions sentiment was reflected in the disciplinary prosecution of a California lawyer, who, in 1929, advertised in the classified section of a newspaper that he gave free advice, handled all cases and was open evenings. The Supreme Court of California reduced the state bars recommendation for a three-month suspension and reprimanded the lawyer. In so doing, the Court justified the sanction by stating, "It can readily be understood how unfavorably the public would react toward the profession as a whole if there were published large full-page advertisements extolling the learning, ability and capacity of an attorney to get results."26
As a result, client development centered around reputations and personal affiliations. Certain partners were dubbed rainmakers because of their abilities to successfully socialize with potential clients of influence. This system favored those in the corporate hemisphere of legal services, as the lawyers could use their personal relations to attract on-going corporate business. Client retention was consistent with the philosophy of Canon 27 and convenient for the lawyers serving corporate society. Meanwhile, the personal plight lawyer had to reach a broader community and consistently work at client development because matters were smaller, fees were less, the cases turned over faster and the individual clients were less likely to bring repeat business with any frequency.
Between the 1940s and 1970s, evolutionary reforms unfolded making client development for personal plight matters far more efficient and consequently expanded the reach of legal services to potential clients. The first of these reforms was the lawyer referral movement, which originated in 1937 in Los Angeles.27 By 1940, a committee of the American Bar Association endorsed lawyer referral and began promoting its usage. By 1970, over 200 communities had lawyer referral services. The services augment individual client development efforts by lawyers by acting as a central intake resource. Those in need of legal services contact the bar-sponsored service which performs some measure of intake and then matches the caller with one or more lawyers who are able to consult with the potential client and, when appropriate, be engaged for the representation. Generally, the lawyer pays a modest fee to participate on the referral panel and agrees to provide free consultations to those who are referred. Clients are usually charged a small consultation fee which reverts back to the referral system to cover its operating expenses. Even though referral systems can reduce the obligations of time spent on client development, they cannot typically provide sufficient clients to replace all other business development endeavors. Therefore, they supplement, but do not substitute for, other client development methods.
A second reform was group and prepaid legal services. This delivery model was advanced by unions and organizations that believed workers who had access to legal information and services were more likely to be productive. Group and prepaid plans developed as a result of a series of court cases in the 1960s, followed by changes in the codes of professional responsibility.28 Prepaid Legal Services are now widespread as employee benefits and components of union plans.29 Prepaid members are typically entitled to free consultations and discounts on a variety of services and/or lowered hourly rates. Lawyers who participate in providing the services offer the discounts in exchange for a flow of clients and to varying degrees can forego the costs and time of other client development obligations.
A third reform in the operations of client development resulted when the U.S. Supreme Court lifted the ban on lawyer advertising. In 1977, the Court ruled, in Bates v. State Bar of Arizona, that lawyers had a First Amendment right to advertise and states could not ban them from doing so.30 Consequently, lawyers were given the right to use marketing avenues, but not the know-how to do so effectively.
For 20 years, lawyer advertising and marketing techniques have evolved as experimental tools matching clients in need of services with lawyers able to provide them. However, the profession has perpetuated a cultural norm adverse to advertising.31 States have adopted restrictions short of bans, yet limiting enough to inhibit many promotional endeavors. As a result, the ability to market legal services has not overcome the operational inefficiencies in client development which contribute to the costs of personal legal services.
Each of these evolutionary reforms modifies client development by linking clients to lawyers more directly than the traditional methods of community involvement and the development of a reputation for outstanding service as set forth in the Canons. The delivery methods outsource the business-getting function to an entity that is solely responsible for that function, i.e. the lawyer referral service, the prepaid plan administrator or the media where the advertising is placed. However, each outsourced function is available to the lawyer at a cost of time and/or money. Lawyers who participate in referral services must spend time on free initial consultations and interviews that often do not lead to engagements.32 Lawyers who participate in prepaid plans must spend time in giving free advice under the terms of the plan and must reduce fees on certain services.33 Lawyers who advertise in the media must spend money for uncertain and sometimes insufficient results.34
Nevertheless, each of these delivery models has reduced the inefficiency of client development and contributed to the ways in which clients find lawyers. According to the Comprehensive Legal Needs Study, 4 percent of moderate income households that engaged a lawyer reported doing so through a lawyer referral service. Another 4 percent used third party mechanisms such as prepaid legal services and over 11 percent reported finding their lawyer through a source of advertising.35
The adoption of a digital strategy for client development is likely to improve the operational inefficiencies of client development for lawyers with personal plight practices beyond the reforms of the past 50 years. The Internet is currently being used directly for client development in at least six ways: 1) individual firm web sites, 2) on-line directories, 3) on-line lawyer referral services, 4) electronic client newsletters, 5) case bidding, and 6) case matching. Many firms are using multiple methods.
A high percentage of large law firms and an increasing number of small firms are on-line with their own web sites.36 To link to the web sites of a wide range of law firms, go to the Open Directory Project, which lists over 5400 law firm web sites, set out by practice areas. Also, Red Street Consulting, and Legal Technology Online, provide sample lists of firm sites, with convenient links. Red Street Consulting evaluates law firm web sites from a marketing perspective, rating each according to content, presentation and experience. Legal Technology OnLine includes sites of law firms outside of the U.S.
Law firm web sites are unparalleled to other forms of client development in four ways: They are relatively inexpensive. They are accessible by anyone anywhere with an Internet connection. They are accessible at any time, 24 hours a day, 7 days a week. Perhaps most importantly, they have the capacity to convey far more information than any other promotional outlet. Potential clients can learn more about the firms work and capacity from its web site than they possibly could from affordable use of television commercials, Yellow Pages advertising or even from firm brochures.
Although the graphic designs of law firm web sites vary considerably, the first generation of web sites seems to have followed a template for format and content. Large law firms typically have domain names that are some variation of the firm name, e.g. http://www.brobeck.com for Brobeck Pheleger Harrison, http://www.bakerinfo.com for Baker & McKenzie, and http://www.kslaw.com for King and Spalding. The content typically includes some introduction or firm mission, the promotion of practice areas, individual lawyer biographies, news about the firm frequently cast as "Whats New" and often comprised of little more than press releases, and material that demonstrates the firms capacity, such as articles or practice tips from the firms lawyers. Small firms are more likely to have innovative sites, beginning with domain names that relate to the practice areas and are designed to bring the potential client to the law firm. Examples of these include visalaw.com for an immigration practice and taxprophet.com, truckerlawyers.com or drunkdrivingdefense.com for firms providing those practice areas.
Future generations of law firm web sites are likely to include more variety and go beyond the template that creates an electronic brochure. Some examples of more progressive web site features are discussed below. However, the information intensive and somewhat passive law firm web site, in and of itself, has created a circumstance where lawyers in all practice settings are advertising their services without the stigma that taints the use of more traditional media. As a result of all these attributes, the mere existence of a very typical law firm web site contributes to the operational effectiveness of the firms client development endeavors.
Even though hosting a web site has substantial value, law firms are challenged in their efforts to bring their sites to potential clients. Finding any particular information on the Internet is currently difficult, especially for the infrequent user. Consequently, on-line directories for legal services help facilitate the match between lawyer and potential client.
On-line directories have several advantages over their paper counter-parts, just as web sites have advantages over other forms of advertising in general. Since on-line directories are available over the Internet, those in need of legal services can access them more readily than they can the published directories, which may only be available in libraries or other locations where they are frequently used. On-line directories can also be updated more cost-efficiently and more frequently, and can therefore contain more current information for consumers. On-line directories can link to additional information both about the law firms listed in the directory and about the consumers legal interest. The directories may be rather standard adaptations of their print counter-parts or they may be value-added sites that enhance the listings.
Standard on-line directories of legal services, which have limited value-added features, include AttorneyPages, the Martindale-Hubbell Lawyer Locator, the Attorneys Practice, and AttorneyFind. Each directory allows consumers to search for the name and address of lawyers by name, practice area or location at no cost to them. Martindale-Hubbell does not charge lawyers for simple listings of name, address and contact information. Other directories, including AttorneyPages and the Attorneys Practice do charge lawyers who wish to be listed.37 They also permit lawyers to give brief bio information as part of the listing.
On-line directories have a better opportunity to link from sites where people may seek legal representation, compared to individual firm web sites. For example, Martindale-Hubbells lawyer locator is available and featured at the home page of the American Bar Association. AttorneysPages links from FreeAdvice.com, a source of consumer information about legal matters. This hypertext cross-selling adds value to otherwise standard directories.
Many on-line directories are contained within web sites as parts of other information and services. In other words, the directories that help consumers find lawyers are a subsidiary part of a site with general consumer information about legal issues or the subject matter of interest to the consumer. Lawyers.com, is an informational site sponsored by Martindale-Hubbell with a series of message boards on different fields of practice, news stories about legal issues, legal resources and tips on hiring a lawyer, in addition to its connection to a search engine permitting the consumer to find a lawyer by field of practice and location. Lawstreet.com, features "Find a lawyer" along with its resource to help consumers look up state and federal laws, and read stories or view cartoons about the law. Similarly, Prairielaw.com, denotes itself the global law community and includes a site to find a lawyer, along with an on-line book store and message boards, e-mail forums and a community chat room for its members. Lawoffice.com, sponsored by West Legal Directory, welcomes the consumer to the world of legal solutions and provides the Law KnowledgeBase, which is a series of on-line articles about legal issues, along with its "find a lawyer" service. LawyerFinder, provides consumers with books and software about the law and links to legal resources on topics such as business law and technology, in addition to its fundamental role of listing lawyers according to a variety of practice areas.
These sites are multi-jurisdictional, while the Maine Lawyers Network, offers a directory of lawyers from that state according to practice areas. Like the national value-added directories, the Maine site includes a variety of other features, such as links to resources on state and federal laws, a discussion area and, in addition to its legal directory, a business directory, with services ranging from accounting to web site development.
As noted, lawyers are sometimes charged for their participation in on-line directories. For other directories, however, the only expense involved is the time needed to screen the potential clients who respond.38
In addition to on-line directories, another form of indirect Internet usage for client development is participation in a lawyer referral program that provides consumers with on-line access. While lawyer referral services are typically telephone-based, some have started to host web sites that give information about their services and collect information from the potential client in ways that allow the services to advance the placement to the referral panel lawyers. For a list of on-line lawyer referral services, see.
On-line lawyer referral services are frequently included within the web site for the sponsoring state or local bar association or community organization. For example, information about the Norfolk and Portsmouth (Virginia) Bar Association lawyer referral service is found at a community site. This site is informational and not interactive, informing consumers about the areas of practice and name, address, telephone and e-mail address of the referral service.
On the other hand, the lawyer referral program for the Bar Association of San Francisco, provides an overview of the service, including information about the referral fee and hours of operation. The site also provides an option for Spanish-speaking clients, a section on frequently asked questions and an opportunity to submit a request for a referral on-line. The referral service operated by the Chicago Bar Association, provides site visitors with a five step process to obtain an on-line referral. The Columbus, Ohio, lawyer referral service, gives visitors an option to get an on-line referral and provides boxes for name, address, phone numbers, e-mail and a description of the problem.
These on-line aspects of lawyer referral services should make the services more efficient and enable the services to enhance the referrals to their participating lawyers. The outsourced function of lawyer referral is using the Internet to outsource its own function through digital marketing. Like the on-line directories and even the web sites, no single source will overcome the operational inefficiencies inherent in client development, but they should combine to lessen the demands on practitioners.
A somewhat different digital strategy designed to expand demand and reduce the inefficiency of client development combines the Internet with e-mail to push information to perspective clients. Lawyers have used client newsletters and information bulletins as marketing tools for many years. These mailed materials allow lawyers to update and, in some situations, alert past clients about important changes in the law. They also allow the lawyer to stay in contact with their past clients, who are the most likely to either become future clients or refer others in need of legal services. While lawyers must avoid sending unwanted notices or promotions, they should consider the convenience of e-mailing opt-in client newsletters.39
On-line subscription-based newsletters can be sent to anyone who asks, usually through an on-line subscription. A newsletter requires time for the development of copy and the maintenance of the electronic distribution. Nevertheless, newsletters serve a dual purpose of communicating the lawyers capacity and keeping in contact with those most likely to become or refer new business. Although newsletters may be more likely in the business hemisphere of legal services, they are beneficial to personal plight practitioners who need inexpensive ways to maintain contact with well-served clients in anticipation of future referrals.
Examples of subscription-based on-line client newsletters include the London solicitors, Jeffery Green Russell, and Mark Grossmans Computer Law Tip of the Week. Both sites provide easy on-line subscription. Subscribers then receive the newsletter by e-mail, while the firms archive past issues at their web sites.
Unlike the other digital client development strategies discussed here, on-line client newsletters do not create efficiencies by outsourcing their tasks. The electronic newsletters create efficiencies when compared to hardcopy newsletters sent to clients or subscribers. They also advance the digital principle of treating each customer as a market segment of one. The content is obviously not tailored to individual clients, but it is calculated to be of interest to them. More importantly, it is sent individually, appearing to be a communication from the lawyer directly to the potential client.40
The digital efficiencies discussed thus far focus on enhancing client development methodologies within established methods. Other digital strategies have the opportunity to reform the methods by which lawyers obtain clients by facilitating completely new delivery methodologies. These include case bidding, or auctioning legal services, and case matching.
Lawyers have begun to offer their services to the highest bidder through the on-line auction site, ebay. An estate planning lawyer competes with non-lawyers, such as awillwriter, and over-the-counter software, such as the Quicken Family Lawyer, to write wills for the winning bidder. At one particular viewing, the minimum bid for the lawyers services was $50.00, the minimum for the nonlawyer will writer was $9.99 and the opening bid for the Quicken Family Lawyer was $7.00. None had received any bids. Notwithstanding the competition and limited consumer response, providing legal services at an on-line auction could advance the efficiency of client development by bringing the services to a marketplace that is in need of those services at a flexible price the lawyer and consumer agree upon. While fees for legal services may be negotiable, a fixed fee is not generally set through the marketplace on a case-by-case basis.
Another digital client development strategy, which has been employed for some small business legal services, flips around the auction setting where the client seeks out the lawyer and creates an Internet format for the lawyer to seek and compete for the client. Unlike law firm web sites, on-line directories and lawyer referral services that use the Internet to make themselves available to whoever may come along, not unlike casting a line, the business matching model makes client information available to participating lawyers who may then bid on the requested legal services.
A component of BizBuyer.com, allows clients needing general counsel, incorporation, trademark or patent services to submit a Request for Proposal, which is then made available to the lawyers participating in the service. The lawyers may bid for the business and the prospective client gets offers to provide the service within 24 hours of issuing the RFP.41
A similar model is now being used to solicit lawyers to represent clients in pro bono cases. The Pro Bono Partnership, sponsored by The Corporate Bar Association, matches corporate lawyers with community-based non-profit organizations in need of free legal services in New Jersey, New York and Connecticut. Its web site includes volunteer opportunities, which lists clients, their missions and their legal needs. A lawyer interested in providing the representation can respond on-line. Similarly, California-based public interest law firm Public Counsel maintains a database of volunteer opportunities, divided into various categories such as childrens rights, community development and homeless assistance. The database contains a brief summary of the needed legal assistance, e.g. "An 80 year old man born out of the U.S. whose parents were citizens who has no identification and can not prove his citizenship for purposes of claiming Social Security benefits needs assistance in obtaining proof of citizenship so that he can claim public assistance he desperately needs." Any lawyer interested in assisting is provided with contact information.
This matching model is now used for personal legal services outside of pro bono. It has the potential to dramatically advance the connection between the person in need of legal services with the lawyer interested in serving the case. If legal consumers recognized the Internet as the source, not for them to seek a lawyer, but for them to present a legal need and have the lawyer subsequently seek them out, the digital strategy will have shifted the inefficient paradigm of client development. This paradigm not only advances operational efficiency in the traditional model of full delivery of personal legal services, but also the unbundled model, where the client seeks a lawyer to provide only that portion of a legal need in which the client needs and wants assistance. Lawyers are able to expand the scope of their services by responding to the needs of the marketplace in the unbundled arena and increase their caseloads.
While client development is among the most inefficient aspects of the delivery of personal plight legal services, other operational components are inherently inefficient and add to the costs of doing business with the lawyers providing those services. After a potential client believes a legal need exists, inefficiencies continue as the matter progresses toward the status of a case.
B. Information Resources
Those who may be in need of personal legal services often lack the resources necessary to help them reach the conclusion about the value of a legal remedy and the cost of pursuing the remedy with or without the services of a lawyer. In the corporate hemisphere, the on-going attorney-client relationship allows the client to determine alternatives for solutions to legal problems by consulting with a lawyer the client has engaged before or otherwise knows. Individuals, however, typically do not have comparable resources for objective information. While many lawyers advertise that they provide free initial consultations, the process may be one to assess whether the client has a case the lawyer is interested in accepting. Those enrolled in prepaid plans typically have telephone advice available and legal hotlines are sometimes available, but not well known.
The Comprehensive Legal Needs study and pro se research demonstrate that people with legal problems often do not seek lawyers, or even the legal system, to provide solutions. Data from lawyer referral services illustrate the opposite situation also occurs. Large numbers of people misinterpret their legal circumstances believing they have a legal problem or need a lawyer when they do not. In fact, most people who contact a lawyer referral service and, presumably believe they have a legal problem for which they need a lawyer, do not become clients. In some jurisdictions, the percentage of callers who ultimately hire a lawyer they are referred to are very small.42
Potential clients have a fundamental need for objective sources of information that permit the client to assess his or her problem and make an informed choice about whether to proceed with a legal solution, whether to engage a lawyer to assist with that solution, and, most recently, the scope of the lawyers services. Although information has been available through publications such as the ABAs You and the Law, and through public law libraries, the resources may be inconvenient or inaccessible. Alternatively, the potential clients may seek consultations with a lawyer, with or without a small consultation charge, but in a way that is frequently time-consuming and inefficient for both the individual and the lawyer.
Lawyers routinely provide potential clients with brochures or other written materials, such as those prepared by bar associations, that explain the process of legal functions such as divorces or bankruptcies. However, using the Internet, lawyers can more efficiently assist potential clients obtain the information they need to assess their solutions and understand the role of the lawyer within the direction of their choice. In short, potential clients can use the Internet to be informed consumers, empowering them to make decisions like those who obtain corporate legal services and reducing the unproductive time of the personal plight practitioner.
A digital strategy involves the creation and maintenance of a client library or resource center that would not be feasible outside of cyberspace. Law firms serving corporate clients typically have a section on their web sites featuring articles, sometimes grouped by practice areas and often consisting of materials prepared by members of the firm. Some law firms have taken this a step further and created resource centers. For example, Perkins Coie LLP has an Electronic Commerce and Internet Law Resource Center that includes a case digest and links to Internet law resources, research, associations and courses, in addition to publications authored by their lawyers.
Legal information designed to inform the prospective client is also provided on the Internet by non-profit legal services. For example, information about housing, benefits, family matters, health, education, consumer matters and elder law is available. Another example is the Wisconsin-based Center for Public Representation that includes a section of its web site discussing how people can access the law. It starts with a segment entitled, "I Think I Have a Legal Problem, Now What?".
The need for legal information is not just a problem in the United States. An Australian site, entitled Legal Help, is provided as a service of the Law Society of New South Wales, and includes sections on consumer protection, real estate transfers, criminal defense, as well as material designed to inform young people about the law and a section to help people obtain a lawyer.
In addition to the resource centers of corporate law firms and non-profit legal services, a vast amount of information about the law has recently become available through legal stand alone sites and as parts of legal portals. For example, LegalWise Online provides legal information for over 25 subjects. Portals dedicated to the law, such as Findlaw.com, include information about various fields of practice as one small part of the total structure of law-related references.
Although the set-up may be time-consuming, personal plight consumers could effectively use on-line client libraries or resource centers to enable potential clients to evaluate their legal issues and make a better informed choice of pursuing a legal remedy before a client interview. Lawyers can take advantage of the information that is available and do not need to author their own material. The time to set-up and maintain this portion of their web sites must be compared to the savings in the time otherwise necessary to explain rights, remedies and procedures to potential clients on an individual case-by-case basis. Considering the potential for duplication of effort, the set-up and maintenance of client libraries would be done most efficiently at the level of a bar association, which would then make the material, or any combination of it, available to the individual practitioners. This is comparable to the development and dissemination of informative brochures, which bar associations have done for decades. Other digital strategies are helping lawyers overcome inefficiencies in client screening and intake.
C. Client Screening and Intake
Client screening and intake are typically time-consuming for lawyers who provide personal services in the traditional delivery model. A series of determinations must be made. Is the potential client a suitable candidate for the legal remedy, e.g. should the debtor pursue bankruptcy or should the dissatisfied spouse file for divorce. After understanding whats involved and the potential outcomes, does the potential client want to pursue the legal remedy. Does the client want to engage the lawyer to provide services and does the lawyer want to accept the case. Once again the personal legal services lawyer is disadvantaged in the operational inefficiencies resulting from the screening and intake functions, compared to lawyers serving corporate clients. The higher volume of cases from more clients and a larger case turnover mean that more time is spent in the intake process.
In the traditional model of personal legal services, the lawyer is likely to preliminarily screen clients on the telephone, asking a set series of questions to determine whether the matter justifies a client interview. If the client subsequently meets with the lawyer, the client is typically given some set of forms to fill out prior to a face-to-face meeting. The consultation will then lead to decisions about the course of action and representation.
Lawyers may consider the face-to-face intake interview an integral part of developing a client relationship, even if a case does not eminently develop. They may, therefore, resist the use of technology in the process. However, a digital strategy should be viewed as something that gives the lawyer more time to develop rapport with those potential clients who are more likely to engage the lawyer. In other words, a focus on the use of technology can serve to screen out unlikely clients, while it enables the lawyer to provide a more personal intake process for those clients that are screened in.
One technological methodology lawyers are beginning to use in the screening process is an interactive case suitability quiz, found at the firms web site. The Venable law firm includes a law quiz, posing a series of questions with multiple choice options. Similarly, Satterlee Stephens Burke & Burke offers the Cybarrister Quiz to test a visitors knowledge of Internet law. These sites demonstrate the capacity of the firms in the areas of their quizzes and are fun for visitors from a variety of backgrounds. However, they do not fulfill the capacity of the interactive technique to assess client suitability. The Southern California law firm Merritt & Hagen offers the Bankruptcy Test, posing the question "Are your finances a ticking time bomb?" The site visitor is then asked 15 questions about his or her personal financial situation, not unlike questions that a lawyer would ask at an intake interview. At the conclusion of the quiz, the score is tallied, with a series of recommendations ranging from "Youre OK, but be careful!" to "Put Out the Fire!" This type of suitability quiz is one step beyond the mere provision of a series of resources that could help the potential client make a decision about the use of legal services.
A variety of law firms have now instituted automated screening and intake forms at their web sites. These are generally found at law firms that either handle high volume caseloads, such as traffic law, or firms that are selective about their cases in fields where there are a large number of potential clients, such as personal injury. However, these on-line intake forms are being used in a number of practice settings.
It is relatively common for law firms of all sizes and practices to provide on-line gateways as part of their web sites so that potential clients can communicate about a problem.43 One example of an open-ended inquiry form is that used by the UK firm Merriman and White. It simply asks for name, address, contact information, who was at fault and the details of the accident. Other firms, however, have developed detailed intake questionnaires. Jacoby & Meyers has developed a three step Instant Interview, beginning with basic questions about what happened, including questions about injuries, pain, trauma and lost wages. It then asks specific questions about the injured party, including age, insurance coverage and costs of medical treatment. Those who have answered according to the intake criteria of the firm are invited to submit contact information as step 3 of the instant interview. Those who have not met the criteria are screened out and thanked for their interest.
While the Jacoby & Meyers instant interview is designed to screen anyone with a personal injury, Truckerlawyers, provides on-line intake and screening for those injured within the niche market of truck drivers.
Automated client screening and intake is also being used by firms providing DUI defense. The law firm of William C. Head offers an on-line Drunk Driving Case Evaluation, otherwise labeled the Potential Client Questionnaire. Similarly, San Diego lawyer A. Rick Mueller provides a 52 question DUI Defense Survey at his web site.
Law firms in other practice areas are providing on-line intake options short of those that are fully interactive. For example, the Fairfax, Virginia law firm of Evan H. Farr, PC, offers an 18 page Wills and Estate Planning Questionnaire in a pdf format for the client to download, fill out and submit. Similarly, the Washington, D.C. firm of Phillips & Cohen provides an on-line questionnaire to be printed out by the potential client or completed and e-mailed to the firm. The questionnaire allows the firm to evaluate the potential of a case under the False Claims Act, which allows a remedy when the government has made payments based on false claims.
These sites illustrate that law firms are using web sites for automated intake and screening in several different practice settings, including those that typically have high volume, as well as those that have extremely narrow niches. The use of the web varies with this function, but increases the operational efficiencies to some degree in all circumstances. The strategy outsources the intake function to the potential client, passing on the burden of data collection for intake analysis to those seeking the service and dissociating the lawyer from the time commitment to those who are not likely to become successful clients. At the same time, the process allows the lawyer time to treat the prospective client as a marketplace of one, giving the person individual attention that is not available in an inefficient model.44 Ultimately, the data collected in the automated intake function could be sorted to automatically create all necessary forms if the matter becomes a case for the lawyer. In the mean time, the ability to recapture time that would otherwise be misdirected in the assessment of unsuitable clients permits the lawyer to reduce the costs of the services.
While automated intake is examined here in the context of personal legal services, it should be explored for various practice settings. This process could be extremely helpful for high intake settings where clients must meet qualifications, such as income standards for legal services for the poor.
D. Legal Advice
Providing legal advice is a primary function of legal services. Legal information, as it is discussed above, is generally generic. Information applies to all those in a particular situation. The information is little more than an interpretation of laws and rules to substantive areas and procedures. E.g., what are the child support guidelines in Illinois? How long after a traffic accident can a person sue the other driver? What penalties are imposed for failure to file income tax returns? On the other hand, legal advice provides the client with fact-specific information and, frequently, includes some degree of judgment.
In the traditional delivery model, lawyers may give free consultations or charge according to either a fixed fee or pro-rated hourly fee. Legal advice is an important commodity offered by the lawyer. In prepaid legal services, plans typically include telephone consultations as part of the monthly plan charges. Lawyers who offer unbundled legal services frequently include client consultations as a valuable part of the menu of options they offer. As pro se litigation expands, the need for advice beyond information also grows.
The legal profession has responded to the clients need for fact-specific information and provided on-line advice in a variety of ways. Some sites are free-standing and some are integrated into the firms practice. Some provide on-line advice at no charge. Some impose nominal charges and some have fairly substantial charges for the advice. Some on-line advice sites focus on fields of practice. Some have geographic limitations and others connect clients to lawyers in any of a number of jurisdictions. At least one firm has confined its on-line advice to that given to community groups on a pro bono basis.
At LegalQuestion.com, a lawyer provides a short answer to a short question on federal law regarding the music industry, copyright, trademark or bankruptcy, via e-mail for a set fee of $25.00, billed to a credit card.
The Legal Ease Home Page, provides the Online Immigration Advisor, giving responses to on-line questions for $19.95. Although the service is offered by an Indianapolis lawyer, this fact is not promoted and visitors to the site must deep link to find information about the lawyer.
The law firm Fang, Safrath & McCarthy, P.C., offers New Yorks Legal Second Opinion. Their web site informs visitors that its "not always necessary to retain an attorney and pay a large retainer or consultation fee if you are simply in need of information to decide whether you have a case..." It also highlights that they provide "All the service you need without the necessity for appointments, consultation fees, retainer fees or travel!"
The Legal Advice Line, is a telephone hotline for legal advice in Maryland and Pennsylvania, with an Internet web site that gives consumers the option of e-mailing questions rather than calling. The service charges a set fee of $30.00. A Texas lawyer operates a "Rapid-Law" service where customers can call a legal hotline for $3.00 per minute or e-mail their question for a flat fee of $35.00.
Other free-standing on-line legal advice sites are like legal advice directories. Instead of being operated by a lawyer or firm, they are independently established and coordinate the input of lawyers who provide advice in various fields of practice in different jurisdictions. For example, Lawopinion.com represents itself as "your one-stop location for quick, concise and affordable legal advice." Its self-proclaimed reasonable price is $39.95 for individuals and $64.95 for businesses. Note that this service is from Canada and not yet available in the U.S. On the other hand, 800-We Do Law provides free legal advice, in California only, either by telephone or through its web site. The service describes itself as "a cooperative effort of individual attorneys dedicated to provide legal services in various areas of law in a prompt manner by utilizing telephone and e-mail." The service then charges the participating lawyers according to a guaranteed number of inquiries.
While many of these free-standing on-line legal advice sites are operated independently of a law firm on a for-profit basis, the Australian Legal Information Access Centre operates the Lawnet Legal Help Panel, where individuals can post questions that panel lawyers answer. The information is then posted and archived so that others with similar problems can share the legal information. Obviously, this type of resource would not be appropriate for anyone who wants confidential information, but it serves as a cost-effective way to communicate fact-specific information that goes beyond the needs of one particular person.
Several law firms provide on-line legal advice as a part of their practices, supplementing their services rather than substituting for them. For example, the Law Office of Peter Sim welcomes e-mail inquiries, setting out the jurisdictional limits of this practice, the need of information to check conflicts of interest and the caution that e-mail communications are not secure. He also states, "I charge for my services. I can sometimes answer simple questions by e-mail or over the telephone for free. But if your question is one which requires legal research or a lengthy answer you should expect to pay for my advice..."
Similarly, but with more formality, California lawyer Peter R. Stone operates Ask-A-Lawyer as part of his practice, where a client can have a question answered for $20.00. Mr. Stone limits the number of on-line questions to 10 per day and adds this to a practice that includes counseling, mediation and litigation services.
The Montana-based Anderson Law Office, PLLC, extends the idea of free consultations by offering to answer questions over the telephone, locally or through a toll free number, or by way of e-mail at no charge.
A final approach to providing on-line legal advice is one that was taken by a solicitors office in the UK, offering free legal advice to individuals, community groups and pressure groups "concerned with issues affecting the quality of life of urban or rural communities." Thus, the firm provided legal advice free, but only for public interest matters. It does not appear, however, that the offer for free advice has been continued.
The variety of on-line communications suggests that lawyers, and consumers, are in the midst of a laboratory setting, testing the formula that will strike the balance between consumer demands and operational efficiencies. There is little question about the need for on-line resources providing fact specific legal advice. The question at this point is whether the consumers sense of value is sufficient to generate compensation in some format that maintains the lawyers participation. If nothing else, on-line advice overcomes geographic obstacles and provides a convenient alternative to a face-to-face encounter. This increased efficiency may advance the unbundled model more so than serve as a segment of the traditional model of delivering personal legal services.
E. Drafting/Form Preparation
The process of drafting legal documents has tracked and used technology as well as any legal function. Historically, lawyers employed scriveners to write out documents for both transactional matters and litigation. Scriveners were replaced by secretaries with typewriters and carbon paper, copying first from the handwritten drafts of lawyers and then from electronic dictation devices.
As long as they could bill (and collect) on an hourly basis, lawyers were probably satisfied with customized drafting. However, clients were interested in affordable personal legal services and to the extent those services were routine, they were interested in ways to defray the costs. Word processing used by legal clinics to reduce the time required for routine matters shifted the paradigm for drafting legal documents.45 At the same time technology facilitated the recurrent use of phrases and language for pleadings, discovery requests and related court documents, acceptable templates, or boilerplate language, became standard practice for contracts, wills and other transactional instruments. More recently, model forms and pleadings have permitted lawyers to use word processing and form kits to expedite the function of drafting.46
The transition from customized drafting to standardized form preparation has made this legal function an administrative task, in many respects, that is now amenable to a convenient on-line function. On-line form preparation is now widespread, and, like on-line advice, offered in a variety of ways. However, unlike on-line legal advice, form preparation is often offered by paralegals or corporations, rather than by lawyers. The on-line services are sometimes supplemental to other law-related services, such as the sale of self-help books. Some on-line form preparation services are intended for lawyers who may want to outsource this task.
Some sites are outlets for forms, for whoever may need them. The federal government has now made a wide variety of forms available. All About Forms provides a search engine to acquire free forms for a variety of legal needs, including bankruptcy, corporation, partnership, divorce and rent. The Internet Legal Resource Guide includes a legal forms archive, which is also searchable.
One site specifically oriented toward lawyers does not provide forms over the Internet, but promotes and demonstrates its software that includes 430 Cook County forms, with a series of value-added features.
Several other sites go beyond the function of providing the forms and do the document preparation on-line for a fee. Some services offer a variety of practice areas and pricing. Legaldocs includes some documents for free, with others available for $3.50 to $27.50. Areas include wills, trusts, leases, partnerships, business documents and real estate. Other sites offer packages with how-to-do-it kits and additional value-added features. Legal Forms has an on-line site promoting its self-help material and providing on-line form preparation for divorces. It gathers extensive information in a simple question-response format and then offers to assemble the summons, petition and accompanying forms ready for filing for $75.00. It also offers to prepare a response and accompanying forms for an additional $75.00. The product is limited to California.
Some on-line form preparation services have limited niches. For example, National Divorce and Bankruptcy Center provides the paperwork on various aspects of those common self-help areas. Its slogan is "you make the decision -- we do the paperwork." It appears to exploit anti-lawyer sentiments by stressing the right of citizens to use the law without a lawyer as fundamental to American Democracy. The Center provides detailed information and form preparation for several aspects of domestic relations, including a divorce kit for $119.00. Although some consumers may want to pay for legal services without having the representation of a lawyer, it is ironic that complete divorce representation in uncontested cases can be obtained for about $125.00 in some jurisdictions.
Quickform Contracts offers document drafting for a technology niche. Its on-line drafting agreements are oriented toward the computer industry, Internet commerce and general business transactions. A drafting session is priced at $19.95 and the service stresses speed and encrypted ordering.
Two services that include on-line form preparation as part of a menu of self-help support are the state-specific Maryland Law On-Line, and the self-help legal publishing house Nolo Press. Maryland Law On-Line provides information and forms on family law, domestic violence, elder law, lemon laws, traffic matters, small business, small claims, intellectual property, consumer law, bankruptcy and immigration. Unlike other self-help sites, this one indicates at its home page that it is published by attorneys, but not operated as a law firm. Value-added features include a package subscription plan, allowing consumers access to all form kits and services for a single annual subscription fee and a claims evaluation service for domestic disputes, designed to help avoid litigation.
Nolo Press provides a variety of forms to help self-helpers transact a wide range of legal matters, in addition to selling self-help books and software. See the Nolo Web Forms Center.
As these services compete with practitioners, especially for that market of pro se litigants, lawyers have several choices. They can compete by offering their own on-line form preparation services as is now being done by the lawyers who operate Nolo Press and Maryland Law On-Line. This is not likely to become a wide-spread alternative, however, since most lawyers are more interested in a more traditional practice and do not envision themselves as self-help publishers. Also, although it is not fully discussed here, stand alone form preparation by lawyers is more likely to have ethical and malpractice limitations than other aspects of unbundled services.47
Alternatively, lawyers can become customers of the on-line form preparation services, outsourcing the function and passing the costs on to their clients. This would create an efficient level of operation to the extent the on-line service can produce the forms at less cost than those of the law firm.
Another option would be for lawyers to offer on-line form preparation as a value-added service to its clients, whether those clients engage the lawyer for full-service or unbundled service. In other words, a digital lawyer could establish an on-line form preparation component of his or her practice that would be available to the client, as part of client outsourcing. Rather than the lawyer completing the forms, the information from an intake process, whether for full representation or advice only, could be formatted into the necessary forms if the client decided to go forward with the legal matter. This strategy is not substantially different from the use of software to develop and complete forms. However, the Internet application allows the client to complete and/or obtain his or her paperwork at a later time, outside of the lawyers office. The use of the Internet to eliminate geographic barriers is an enormous efficiency in the delivery of personal legal services. It is the next topic examined here.
F. Geographic Barriers
Distance is an operational inefficiency in the practice of law that is largely taken for granted. The image of the Main Street lawyer with an office in the town square across from the courthouse is one that would cause the lawyer to commute from home to the office, but would then be geographically advantageous when clients would come to a centralized location which was close to the courts. This centralization was a great benefit compared to the 19th Century circuit riders who would follow a judge from one village to another for weeks at a time.
When legal clinics emerged in the 1970s, they introduced substantial efficiencies to process routine legal services. These included model forms, word processing, the use of advertising to produce a volume practice and the use of paralegals for inexpensive leg-work.48 Although these efficiencies had an evolutionary impact on the delivery of personal plight services, clinics took one step that actually reduced the efficiency of their practices. They moved their law offices away from the town square and into neighborhood storefronts and the malls. Instead of bringing the clients to them, they went to where the clients were. While the clinical lawyers could use paralegals for some of their court obligations, such as filings and docketing, they still had to travel to and from court with some regularity and with substantial costs of time.
On the other hand, unbundled practices reduce geographic barriers and save time in several ways. The practices may use alternatives to face-to-face interactions, such as telephone hotlines or, as discussed above, the Internet. Other unbundled practice models may outsource certain functions, such as filings, to the client. In this menu model, the client may have the choice of assuming administrative functions in exchange for a reduced legal fee.
In addition to playing a role in an unbundled practice model, a digital strategy to overcome geographic barriers and the operational inefficiency of distance is unfolding in two ways, through distance lawyering and electronic courthouse interfacing. Distance lawyering, or perhaps more accurately but awkwardly, distance legal servicing, is an extension of on-line advice and form preparation, where the service provider uses the Internet for the interaction, avoiding office visits and other personal encounters. Internet-based distance lawyering is being done by legal service businesses, lawyers who provide it as the focus of their practices and lawyers who provide it as a part of their practices.
Legal services that are form intensive and administrative are amenable to distance lawyering. StartCorp provides an on-line service to incorporate businesses. In addition to the corporate filing, the services include preparation of the Federal Employer Identification Number, a minute book with corporate seal, stock certificates and sample minutes and bylaws and an option for StartCorp to be the corporations registered agent. The service does not provide information about the decisions to be made by those starting a business, but instead warns visitors to the home page that they should not consider it a substitute for consultation with a "licensed, trained legal practicing professional." See, http://www.startcorp.com
WillWorks offers the consumer the opportunity to prepare a will on-line for $49.95. The site provides value-added information about wills and estates, but no legal advice. The wills are customized for the laws of each state, except Louisiana. The customer completes a five page "interview" to gather the information used to develop the will. WillWorks is a corporation that represents its materials are developed by a team that includes a professor who has been at a major university law school for over 15 years. No one on the team is identified, however.
"What Is the Law Dot Com" is a law practice that blends Internet-based distance lawyering with the traditional delivery model. The firm offers a variety of legal services, such as divorce, bankruptcy and eviction, which are promoted on-line, as well as wills, second opinions, demand letters, small claims filings and consultations, which are provided on-line. The fees are not as inexpensive as other on-line legal services, at $150 for a three-hour consultation and $175 for a will, but they may cost less than comparable services outside of the Internet delivery model.
Distance lawyering not only creates a more efficient model of delivering legal services to clients within the lawyers geographic area, but it also expands that area and, consequently, the base of potential clients. Intellectual property and technology-based issues are among those amenable to distance lawyering for this reason. The potential clients are more likely to be comfortable with electronic communications, are in need of quick responses and may be geographically remote. A California lawyer has established a site as an Internet Attorney, seeking clients for computer litigation. The site provides informational articles on areas of computer law and the opportunity for potential clients to contact the lawyer through e-mail.
The ability to make geography less relevant can also expand the unbundled model, where the lawyer may need a higher volume of cases than the immediate jurisdiction permits. For example, if a lawyer provides traditional services to divorce clients in a county that processes about 5,000 divorces a year, the lawyer would need a small percentage of those litigant to serve as a basis of his or her practice. However, if the lawyer only provided advice, or drafting, or developed a niche, for example, providing only assistance with preliminary hearings for victims of domestic violence, the lawyer would have to have a much bigger portion of the geographically limited market to earn the same income as in the full service model. However, using a digital strategy to expand the geographic area would allow the lawyer access to a larger volume of unbundled cases without consuming a larger percentage of the marketplace for the immediate jurisdiction.
One of the great inefficiencies in many legal practices involves interaction with the courts. Going back and forth from the courthouse to the office, standing in lines to file, docket or check the status of a case all consume time that can be avoided through systems of electronic filing and court interfacing. Unlike other aspects of a digital strategy to practice law discussed here, court interfacing is not something the lawyer can do independently. It, obviously, requires action by the court administration. Many courts have moved forward with electronic filing and the creation of technologically efficient systems. A leader in these advancements and the coordination of information about court technology is the National Center for State Courts. Lawyers interested in advancing these efficiencies can serve as advocates in their jurisdictions for the implementation of court interfacing and become participants of those systems the courts make available.
G. Client Communications
Because the law is an informationally-based service, client communications are a fundamental aspect of any delivery model. Over the course of the representation, clients expect their lawyers to keep them current on the progress of their cases or other legal matters.49 The demand for good communication is reflected in the high incidence of ethics and malpractice complaints based on the failure of lawyers to properly communicate information about the state of the legal work. On the other hand, most lawyers recognize the value of client communications and strive to assure a good flow of information.
The clients demand for communications with the lawyer can work to the disadvantage of the personal plight lawyer compared to those in the business hemisphere, however. Clients who are not use to the legal process will need more detailed information about subsequent developments. Those going through stressful transitions, such as clients who are divorcing or filing bankruptcy, may demand the lawyer spend time providing them with emotional support in addition to legal services. Therefore, it is more important for the personal plight lawyer to control the flow of communications with the client in ways that dedicate the necessary time to provide assistance, but do not consume the lawyers time in unproductive ways.
In the traditional model of personal legal services delivery, client communications have been in-person, usually in the lawyers office, or over the telephone. More recently, communications have expanded to include voice mail, faxes and e-mail, each adding a degree of efficiency, as well as expediency. However, the Internet permits the lawyer to expand the avenues of communications through the use of extranets. Extranets are Internet-based methods of conveying information to a selected group, such as clients. They are password protected and can be highly individualized. Perhaps the most common example of an extranet is that used by banks and brokerage companies to provide customers with their specific account information and permit personal transactions. Law firms have the same capacity. Large firms use client extranets to maintain libraries of forms, provide client alerts or news, share scheduled legal needs and information with various offices and departments within the law firm and provide customized client tools on-line such as an employment guidance manual.50
Although it is not commonly used, the forum is adaptable to create efficiencies in the delivery of personal legal services. Clients need to know about changes in their case status, filing obligations, hearing dates and the results of procedures that take place in their absence. Extranets should be considered as a method of providing this type of information, just as they provide banking customers with information about those services. For a firm providing case status as part of its Internet-based services, see http://www.lbnlaw.com.
The use of electronic communications for personal legal services leads to some debate about the appropriate level of interpersonal client support. However, the availability of the technology will never be viewed by lawyers as an absolute replacement for support and counsel provided by lawyers. Instead, the technology relieves the obligation of the lawyer to spend time pro-actively informing each client about each case development. Clients get access to more information and lawyers have more time to spend with those clients who want, need and can pay for that time spent for legal counseling. In this respect, lawyers become able to treat each client as a market of one and overcome the common client perspective that the lawyer does not care about the clients needs and problems.51 The digital strategy allows the legal services to be more personalized, not impersonalized.
H. Dispute Resolution
In addition to counseling (or providing legal advice) and drafting (or form preparation), participation in dispute resolution is a core function of providing legal services. Like counseling and drafting, the time spent mediating, arbitrating, negotiating or litigating is chargeable time. However, like all functions of the lawyering process, people of limited or moderate means cannot pay with an open checkbook. Therefore, on many occasions, the process of dispute resolution must be pursued with maximum efficiency. Traditionally, dispute resolution centered around litigation. Regardless of the time and cost, if matters were to be resolved legally, it would be through the court process.
In recent decades, however, alternative dispute resolution has resulted in a menu of conflict resolution techniques in addition to litigation. These techniques have become available as stand alone proprietary services and have been incorporated into the court processes in some circumstances, where, for example, divorcing parents with minor children are required to mediate a parenting plan or claimants of disputes having limited demands must go through an arbitration proceeding before setting a trial. Regardless of the situation, alternative forms of dispute resolution are, like litigation, almost always face-to-face. However, a digital strategy provides alternatives to these alternatives.
The Internet is used in the function of dispute resolution in at least three ways. First, it is a mechanism to provide litigation support. Although lawyers have used technology for litigation support for decades, as research and case management tools, the use of the Internet for other dispute resolution tools is uncommon. One site that uses the Internet to provide a variety of on-line innovations to lawyers is the Wilmington Institute Network, http://www.winthecase.com/cybers.htm. For example, this service offers the virtual jury, consisting of on-line focus groups, giving lawyers the opportunity to test case themes and get reactions to visual evidence.
A second role of the Internet in dispute resolution is through the creation of a technological resolution format. Cybersettle is a site that permits disputants to submit good faith settlement offers without the other party knowing the amount. The technology then allows each party to determine whether they are close enough to reach an agreement. Also, see Click N Settle.
The third use of the Internet in dispute resolution is as a forum to provide the resolution. Since the Internet provides an a-jurisdictional community, some commentators have concluded that cyberspace interactions can benefit from a forum outside of the current court systems to hear and resolve disputes. The On-line Ombuds Office, operated by the Center for Information Technology and Dispute Resolution at the University of Massachusetts, provides on-line mediation for disputes that arise as a result of on-line activities. The project has mediated complaints arising from on-line auctions, such as eBay and Up4Sale, and domain name disputes.
The direct application of the Internet to reduce operational inefficiencies of the delivery of legal services in dispute resolution is more remote than the other functions of practicing law. Nevertheless, the use of on-line ADR resources and techniques by lawyers on behalf of their clients is likely to be advantageous, when compared to the inefficiencies of traditional litigation or even recent face-to-face dispute resolution alternatives.
I. Ancillary Business Endeavors
The last operational inefficiency to be examined here is that of ancillary business endeavors. Lawyers traditionally avoided ancillary businesses or, as a result of ethical obligations, kept them distinct from the practice of law.52 Examples of services provided by lawyers simultaneously with the practice of law include real estate brokerages, insurance agencies and accounting practices. Older ethics rules permitted lawyers to provide such services, but they had to do so in ways that were completely separated from the practice of law. Lawyers had to have separate office signage, telephone numbers and even separate office entrances when they provided multiple services out of the same location. Ethics rules still impose limitations on ancillary business, but in recent years, major law firms have added to their corporate services. They now provide lobbying services, as well as a number of highly specialized consultancies. Lawyers are increasingly involved in publications and web site design as ancillary businesses.53 Some speculate that they will play a larger role in the software design of products for legal services.54
The use of the Internet to cross-sell ancillary businesses is advancing in several different directions. Web sites promoting self-help legal software cross-sell to lawyer directories so that consumers can locate lawyers if they need to. See, http://www.itslegal.com. Similarly, Lawquick cross-sells legal self-help books with its lawyer directory. Conversely, law firms cross sell legal documents and forms. See, http://www.whatisthelaw.com. Finally, an innovative use of cross-selling is a law firm that concentrates on immigration law and promotes it ancillary job placement service at its web site.
These cross-selling efforts create joint ventures that are otherwise unavailable to the consumer of legal services and use the Internet to do so in ways that are both effective and affordable.
The legal profession has addressed operational inefficiencies in the delivery of personal legal services in many ways throughout the second half of the 20th Century. Evolutionary reforms have unfolded, shifting the burden of client development, streamlining client intake, mechanizing drafting, economizing distance and even altering the framework of dispute resolution itself. However, the Internet has begun to enable a shift to a digital paradigm that can revolutionize these operational inefficiencies and change the delivery of personal legal services in ways that make them cost-effective and affordable to a greater percentage of the American population.
Digital strategies are creating laboratories that involve both lawyers and lay persons who can benefit from these shifts. The only thing certain in all this is change. Therefore, it is imperative that personal legal services practitioners examine their methods of delivery, focus on the inefficiencies that drive up the costs of those services and explore the opportunities to implement digital strategies to address the needs of their clients.
Examples of Digital Strategies for the Delivery of Legal Services
1. Client Development
2. Client Libraries/resource centers
3. Suitability Quizzes
4. Automated client screening/intake
5. On-line Advice
6. On-line form preparation
7. Distance Lawyering
8. Electronic Court Filing and Interfacing
9. Client Collaboration and Extranets
10. Dispute Resolutionp>
11. Ancillary business development/Cross-selling services/products
1 See Findings of the Comprehensive Legal Needs Study, American Bar Association, 1994.
2 See Sales, et al., Self-Representation in Divorce Calses: A Report Prepared for the ABA Standing Committee on the Delivery of Legal Services, American Bar Association, 1993. See also, Goldschmidt, et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers, American Judicature Society, 1998.
3 Mosten, Unbundling of Legal Services and the Family Lawyer, Family Law Quarterly, Vol. 28, No. 3, Fall 1994, at 421.
4 For analyses of disintermediation and ramifications resulting from digital paradigms as they apply in general and to the legal profession, see generally Suskind, The Future of Law: Facing the Challenges of Information Technology, Clarendon Press, 1996; Granat, The New Economy and the Virtual Law Firm of the Future, Center for Law Practice Technology, 1999, on-line at http://www.digital-lawyer.com/virtual2.html; and Downes and Mui, Unleashing the Killer App: Digital Strategies for Market Dominance, Harvard Business School Press, 1998.
5 Supra note 1, at 18.
6 Id. at 27.
7 Divorce Courts: Case Management, Case Characteristics and the Pace of Litigation in 16 Urban Jurisdictions, Goerdt, National Center for State Courts, at 48.
8 See Goldschmidt, Supra note 2, at 8.
9 Report on Litigation, Boston Bar Association Task Force on Unrepresented Litigants, 1998.
10 Cox and Dwyer, Self-Help Law: Its Many Perspectives, Special Committee on the Delivery of Legal Services, American Bar Association, 1987.
11 See Sales, Supra note 2.
12 See Goldschmidt, Supra note 2, at 12.
13 Sales, Supra note 2.
14 Goldschmidt, Supra note 2, at 13.
15 Id. at 10.
16 Preliminary Report and Preliminary Recommendations of the Unmet Legal Needs of Moderate Income Persons in Maryland, Maryland Moderate Income Access to Justice Advisory Task Force, 1996.
17 Goldschmidt, Supra note 2, at 10.
19 See generally, Heinz and Laumann, Chicago Lawyers: The Social Structure of the Bar, 1982, and Abel, American Lawyers, 1989.
20 Cramton, Delivery of Legal Services to Ordinary Americans, 44 Case W. Res. L. Rev. 531, 539, 1996.
21 See Perkins, Unbundling Your Services Makes Some Clients Happy, Lawyers Weekly USA, Dec. 18, 1995, and Molvig, Unbundling Legal Services, Wisconsin Lawyer, Sept. 1997.
22 See McNeal, Redefining Attorney-Client Roles: Unbundling and Moderate-Income Elderly Clients, 32 Wake Forest L. Rev. 295, 1997.
23 See 1995 Nominations for the ABA Louis M. Brown Award for Legal Access: Profiles of Moderate Income Delivery Programs, Standing Committee on the Delivery of Legal Services, American Bar Association.
24 Podgers, Rediscovering the Middle Class, ABA Journal, Dec. 1994, at 64.
25 Supra note 16.
26 289 P. 818, 820 (1930).
27 Christensen, Lawyers for People of Moderate Means: Some Problems of Availability of Legal Services, American Bar Foundation, 1970, at 176.
28 NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964).
29 See the American Prepaid Institute at http://www.abanet.org/api.
30 433 U.S. 350 (1977).
31 See Cutler, Schimmel and Javalgi, Alternative Perspectives to Legal Services Advertising: Attorneys Versus Consumers, Lawyer Advertising News, Vol. 2, No. 3, Feb. 1993; and Seron, The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys, Temple University Press, 1996.
32 See Lawyer Referral and Information Services: A Profile at the Turn of the Century, Standing Committee on Lawyer Referral and Information Services, American Bar Association, 1999, reporting that in over 60 percent of bar-sponsored lawyer referral services less than one out of four clients referred to a panel lawyer required work beyond the initial consultation, at 8.
33 Supra note 29.
34 See, for example, Yellow Pages Lawyer Advertising: An Analysis of Effective Elements, Commission on Advertising, American Bar Association, 1992, where it found that 30 percent of the lawyers who advertised in the Yellow Pages did no better than break even with their costs.
35 Supra note 1, at 28.
36 See The 1998 Large Law Firm Technology Survey and The 1998 Small Law Firm Technology Survey, ABA Legal Technology Resource Center, 1998, indicating that by the end of 1997, 58 percent of large law firms had web sites and 11 percent of small firms had their own sites.
37 AttorneyPages.com charges lawyers for listings according to the number of subject areas, with a minimum annual charge of $250.00.
38 It is important for directories to have a critical mass of listings so the consumer is successful in his or her efforts to locate a referral in the subject area and geographic location. Therefore, it should not be unusual for directory start-ups to provide free listings for lawyers.
39 Lawyers must exercise caution to e-mail only to those who request it. Unsolicited commercial e-mail, or spam, may be unlawful in some states and lead to prosecutions for ethical violations, as was the case with Laurence Canter. See In Re: Laurence A. Canter, An Attorney Licensed to Practice Law in Tennessee (Out of State Practice) Docket No. 95-831-O-H, Tennessee, Board of Professional Responsibility of the Supreme Court of Tennessee, at http://www.legalethics.com/states/disbar.htm.
40 See Downes and Mui, Supra note 4 for a detailed discussion of the application of digital principles.
41 McArdle, New Way to Land Small-Business Clients: Bid for Them Online, Lawyers Weekly USA, Aug. 23 1999, at B4.
42 Supra note 32.
43 Law firms should be particularly careful about the ethics issues that pertain to this. See, Krakaur, The Ethics of Giving Casual Legal Advice Online, The Internet Newsletter, May 1998.
44 Downes and Mui, Supra note 4.
45 Singsen, Report on The Survey of Legal Clinics & Advertising Law Firms, Standing Committee on the Delivery of Legal Services, American Bar Association, 1990, at 38.
46 See, for example, Supreme Court Approved Simplified Forms, The Florida Bar, Dec. 1991.
47 Rothermich, Ethical and Procedural Implications of "Ghostwriting" for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687 (1999).
48 Supra note 45.
49 Seron, Supra note 31 at 144.
50 Ozolin, Leveraging Intranets and Extranets to Collaborate and Connect with Clients, Strategies, August 1999, V.2, No.3, at 1; and Speady, Linking Intranets and Extranets to Greater Profitability, Strategies, June 1999, V.2, No. 1, at 10.
51 Downes and Mui, Supra note 4.
52 See Haynsworth, Marketing and Legal Ethics: The Rules and Risks, The Section of Law Practice Management, American Bar Association, 1990.
53 See http://www.lawgirl.com
54 Susskind, supra note 4.
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