The Future of Law & Innovation in the Profession (FLIP) commission of inquiry took place last year as an initiative of The Law Society of NSW. Its final Report, available online here, which was published last month adds to the growing collection of recent, profession-led, inquiries into the future of legal services, including the American Bar Association’s Commission on the Future of Legal Services (on which FLIP was modelled), and the Canadian Bar Association’s Futures Initiative.
In its own words, the broad aim of the inquiry was to:
better understand the changes taking place in and around the legal profession and to provide the profession with recommendations that will enable lawyers to betteraccommodate new concepts and ideas, and adapt to changes that are taking place…
As the title suggests, its change focus is predominantly shaped by its legal profession orientation, and by the profession’s continuing fascination with technology and process innovation/disruption. This of itself, of course, shapes and skews the nature of the inquiry (something I’ll say more about later). Nonetheless, the FLIP Report 2017 is an interesting, informative and very clearly argued presentation of some critical issues facing the profession in NSW, and, one must suspect, Australia more generally. In this short review, I offer some initial reflections on the value and insights of the process. In subsequent posts I will focus specifically on two areas of the report that are of particular interest to me: its observations on professional regulation and legal education.
The inquiry was organised as an exercise in thought leadership. It did not commission research, and it’s not clear how extensive a review it undertook of the voluminous literature, though there are useful end of chapter references, and a short bibliography. It structured itself as a commission of inquiry and took evidence, both orally and in writing from a range of ‘witnesses’. This worked well in terms of producing a focussed and often pithy report, with some useful quotes and insights from many who are innovators and thought leaders in the field. At the same time, this methodology also placed the onus on the ‘commissioners’ to inquire deeply and thematise the evidence effectively. This is a demanding task, and in these respects the Report is sometimes a little lacking. For my money, though it acknowledges (astutely) the fundamental nature of the questions change raises at the intersection of “jurisprudence, ethics and technology” (p.45), it does not engage deeply enough with the capacity for technology to transform not just process but the form of law itself. Blockchain in this respect (which is discussed in the Report) is really just the tip of an iceberg.
Moreover, the profession-centric nature of the process has its limitations. Law is not unique in the challenges it faces, and a broader ranging inquiry might have helped the commissioners take that deeper and longer view. The great majority of the 103 witnesses were from within the legal profession and legal academia: the inquiry could have heard more widely from experts in other professional service sectors, and the consumer voice is also somewhat lacking. The focus at times is rather protectionist (I’ll say more about this in the post on regulation). Consequently, while the Report (chapter 4) rightly highlights both the potential for technology to facilitate access to justice, and the risks of continuing under-investment in technology for personal legal services, the potential for technological and regulatory disruption and deprofessionalisation to enhance (alternative) access to justice remains something of an elephant in the room.
The Report makes a total of 19 ‘Key Recommendations’ which are framed as actions for the Law Society. A number of these are, as one might expect, useful but fairly unexceptional ‘inform’ and ‘advocate’ recommendations, but two structural initiatives in particular are of wider interest, and reflect the influence of US thinking on the Report. First, Recommendation 2 calls on the Law Society to establish a “centre for legal innovation projects” to raise awareness, conduct research, develop training and create and participate in strategic partnerships (interestingly universities are not mentioned in the range of prospective partners) in respect of legal technology and innovation. Secondly, Recommendation 3 invites the Law Society to “consider establishing an incubator in New South Wales dedicated to technology-enabled innovation in the law”. Both of these initiative are to be welcomed, but at the same time, their potentially limited scale and reach must be acknowledged. The Law Society is not the ABA, and individual state-centred initiatives are not going to have either the resources or the reach of a national centre or national incubator initiative. A recommendation that the Law Society commit itself to collaborating nationally on such initiatives with the Law Council of Australia and other state representative and co-regulatory bodies, would have been groundbreaking, as well as offering the profession considerably more bang for its buck, but, I guess, may have been less ‘positionally’ attractive, and/or less of a ‘headline’ for the Society.