This issue’s debate discusses an increasingly popular phenomenon in professional services: robo-advising. Robo-advisors provide users with wealth management advice based on automated algorithms, taking the place of live financial advisors. Could this technology be successfully applied to legal services? Joseph Groia and Siobhan Mullan take on Malcolm Mercer in this debate. Would robo-advising be a boon or a burden to the legal profession?
Joseph and Siobhan say the risks and deficiencies are too great. Read their position here.
For hundreds of years, lawyers have spent their time and expertise providing valuable assistance to their clients.
Lawyer incomes have remained reasonably stable in real terms over the decades. Statistics Canada reports the median professional income for Ontario lawyers was just over $125,000 in 2014. Over time, lawyer professional incomes have been reasonably well correlated with family incomes. This is not surprising. Intelligent, well-educated, hard-working lawyers have generally maintained their economic position – and lawyer incomes are tied to the ability of clients to pay their fees.
Considering lawyer incomes and overheads and the number of hours that can be billed in a year, it inevitably follows that lawyers charge fees in the hundreds of dollars per hour (whether described that way or not).
For some problems, this works pretty well. Limited lawyer time is required for a residential real estate transaction or a drafting a will. Most people buying or selling real estate or with an estate have the money to pay for the necessary legal work.
For other legal problems, there is a problem. In criminal law, family law and personal injury, the number of required lawyer hours means that many ordinary people can’t afford to pay. Ironically, many lawyers couldn’t afford themselves. This reality plays out differently in different areas. In personal injury law, lawyers are paid out of the ultimate compensation, if any. In family law, most litigants simply don’t use lawyers. In criminal law, legal aid assists the poor. For the middle-class, being an accused can be ruinous. Our justice system is a mostly unaffordable wonder for ordinary people.
What isn’t obvious is how little lawyers actually do for ordinary people. Surveys repeatedly show that lawyer work is generally limited to criminal law, family law, personal injury, real estate and estates law. Studies have shown that over 85% of all “justiciable events” are addressed by ordinary people without legal assistance.
Lawyers don’t offer services if people won’t pay for them and ... lots of legal issues can’t be addressed at a cost of hundreds of dollars per hour.
So why would people not go to lawyers when facing a legal issue? The practical answer is that lawyers don’t offer services if people won’t pay for them and that lots of legal issues can’t be addressed at a cost of hundreds of dollars per hour. The result is legal needs that are unserved and underserved by lawyers.
Two other examples are helpful. Like lawyers, investment advisors spend time offering investment advice and transactional assistance. Unlike lawyers, investment advisors commonly charge fees based on the value of the investments involved. This means that investment advisors limit their clientele to those who have sufficient investable assets to pay their fees. So those with insufficient assets leave their money in their bank accounts, buy GICs or perhaps put their money in expensive bank mutual funds.
Tax assistance provides another example. Taxes can be complicated and difficult. For some, accountants prepare taxes. Others have used bookkeepers or tax preparers. But historically, many late April nights have been spent over kitchen tables trying to fill out tax forms.
In 2016, many people now use Quicken TurboTax or comparable products. Instead of teaching tax advisors how to spent their time preparing tax returns, Quicken has created a robo-advisor that can be downloaded and used at home. While the TurboTax software is no doubt expensive to create and maintain, the additional cost of a TurboTax download is relatively negligible. This low “marginal cost” means that the unit price is low. Ordinary people who once spent late nights stressing out over their tax returns now use a robo tax advisor instead.
In 2016, investment assistance is also provided by robo-advisors. The growth in the use of robo-advisors over the past several years is reported to have been significant. What is most interesting is that robo-advisory services are being provided to clients who don’t have sufficient investable assets to merit the interest of a traditional investment advisor. The same “low marginal cost” economics that permit TurboTax to be offered at relatively low prices apply here too.
So what about law? There are parallels between legal advice, tax advice and investment advice. Where provided through the traditional professional advisor, there are unserved needs because the labour-intensive expert model has lower limits to the price at which it can deliver. But where technology and capital are applied, lower priced services can be delivered.
This is not radical imagining. Examples already exist. The most recently, the Manchester Guardian reported “Chatbot lawyer overturns 160,000 parking tickets in London and New York”. While less newsworthy, Neota Logic and Littler Mendelsohn deliver robo compliance advice to Littler’s HR clients. This is not to suggest that a robo-advocate in court is desirable or even plausible. But there are aspects of existing legal services that lend themselves to robo-advisors. An obvious example is family law where complicated court forms and rules could be addressed with robo-assistance. Notably, a Quicken Family Law product was introduced in Texas several years ago only to be challenged by the state bar as unauthorized practice of law.
Of course, it is speculative to say that robo legal advisors can substantially address currently unserved and underserved legal needs. But the fact that this is speculative is because only licensed lawyers and paralegals are now permitted to provide legal services. And the ability to provide software-driven internet-delivered intelligent services is obviously increasing. What is possible today is not what will be possible in the years to come.
For some lawyers, this is scary. Some of what we do may well be more cost-effectively done in new ways. But lawyers don’t come close to fully serving the legal needs that exist in society. There can be no ethical justification for prohibiting that which lawyers don’t actually provide nor, more scarily, what can be effectively provided at lower cost. And there may even be opportunities for lawyers up to new challenges!
Ultimately, we can attempt to prohibit new legal services that lawyers cannot cost effectively provide. We can ignore new providers hoping that nothing goes wrong. Or we can thoughtfully regulate legal services in the public interest including “robo-lawyers”.
Joseph Groia and Siobhan Mullan disagree. "Discussion and comprehension are the fundamental components to the attorney-client relationship and cannot be easily replaced." Read their position here.
About the Author
Malcolm Mercer is partner and general counsel with McCarthy Tétrault where he has practised as a litigator since he was called to the bar in 1984. Malcolm is vice-chair of the Law Society Professional Regulation Committee and is active in a number of other Law Society committees. Malcolm is a regular legal ethics columnist for slaw.ca and teaches legal ethics at Osgoode Hall Law School. Malcolm has been a member of the CBA Task Force on Conflicts of Interest, is a past chair of the CBA Committee on Ethics and Professional Responsibility and was the regulatory team lead for the CBA Futures Initiative. He was awarded the CBA’s Louis St. Laurent Award of Excellence in 2013.