Digitalised legal services: challenge or opportunity?
The legal profession must learn from the mistakes of others and embrace technology where it helps clients the most, argues Lisa Davies
The traditional idea of ‘seeing a lawyer’ used to mean literally that: a solicitor and a client would be in each other’s presence in the same room at the same time (much like witnesses to a will). However, improved technology has led to an increasing tendency to substitute, or at least supplement, face-to-face meetings with telephone contact and transactions conducted over the internet.
In England and Wales, the ‘high street’ practice and its established way of doing business is under threat. Long gone are the typewriters and mostly even the fax machines. Offices are now increasingly paperless, some are entirely ‘virtual’, and even in traditional firms ever more work is transacted online.
In his book, The End of Lawyers?: Rethinking the nature of legal services, Professor Richard Susskind writes: ‘Conventional legal advisers will be much less prominent in society than today and, in some walks of life, will have no visibility at all. This, I believe, is where we will be taken by two forces: by a market pull towards commoditisation and by pervasive development and uptake of information technology.’
He theorises that changes derived from digital development will take legal services from being ‘bespoke’ at one end of the scale, to what he terms ‘commoditised’ at the other. This is where the client ‘purchases’ a legal commodity in the same way they would purchase any other commodity, such as a sack of sugar, which is regarded as a basic, readily available offering.
But are these developments the legal profession should welcome or fear? Undoubtedly some clients and services will continue to require a bespoke approach and want personal contact with their lawyer, but does this mean the traditional model should continue to be the only or main one employed by legal practices?
Web-based firm Rocket Lawyer entices visitors to its website with the offer to ‘create your free tenancy agreement for a house’. The company proposes what is an online retainer: after a one-week free trial the client is charged £25 per month to become a ‘member’ and access online advice and document creation software.
You may create a tenancy in this way, but what of a will or a lasting power of attorney, for example? Last month digital signatures were used for the first time in the exchange of contracts for a conveyancing transaction in England, but the plan to fully digitalise LPAs was shelved after the response to a Ministry of Justice consultation called for the retention of face-to-face contact and ‘wet signatures’. Professionals were worried about the lack of safeguarding in a wholly digital system providing a service for the most vulnerable in society who are particularly open to undue influence, abuse, and fraud.
Equally, there are countless online will-writing services available, but one objection to this approach is that there is no way of adequately assessing capacity online, or even verifying that the instructions come from the would-be testator.
No one disagrees that the increased flexibility the internet offers is potentially beneficial, but most lawyers and clients alike would also agree that something is lost with an impersonal approach, especially in private client matters where the work tends to be of a sensitive, personal nature.
Moving online affects how legal services are delivered by making greater centralisation possible, so clients can access a wider range of experts instead of having to rely on those within easy travelling distance, and lawyers can act for clients across a larger area, thereby increasing their potential client base.
Are promises of increased access misleading? The 2016 update of the report on ‘Digital Delivery of Legal Services to People on Low Incomes’ (Roger Smith – The Legal Education Foundation) estimated that up to 50 per cent of the population formerly entitled to legal aid is still without effective access to the internet. The Office for National Statistics bulletin ‘Internet access – households and individuals 2016’ reports that 45 per cent of adults aged 65 and over shopped online in 2016. But are people as willing, especially in the older age groups, to ‘buy’ legal products in the same way as they purchase a new appliance?
The legal profession cannot atrophy and we should embrace technology where it helps us and our clients. However, we must learn from the mistakes of others. NHS Direct was a web and phone-based medical information resource set up in 1998 and abandoned in England in 2014 (the telephone service lives on in Wales), after the shock discovery that a call handler with a script couldn’t replace the knowledge of a skilled, experienced nurse.
No doubt certain legal matters can be handled effectively from a call centre or online, but not all, and part of the continuing development and skill within our profession will be in recognising the difference and helping the public appreciate it too.
Lisa Davies is head of private client at Sinclairs Law