Revisiting the ‘Future of Law & Innovation in the Profession’ report after the pandemic By Prof Michael Legg & Gary Ulman

REVISITING THE FUTURE OF LAW AND INNOVATION IN THE PROFESSION REPORT AFTER THE PANDEMIC

PROFESSOR MICHAEL LEGG AND GARY ULMAN

The legal profession has been subject to change at a pace not previously seen. The Law Society of New South Wales’ 2017 Future of Law and Innovation in the Profession (FLIP) Report sought to understand and respond to that change. Only three years later the world is in the grip of a pandemic and the practice of law faces further challenges. So what does a post-pandemic profession look like? This article revisits some of the key findings and recommendations of the FLIP report in light of 2020’s shut-downs, border closures and social distancing.

NEW WAYS OF WORKING

One of the most important findings of the FLIP report was the multitude of approaches to offering legal services that were developing. A central focus was New Law or the virtual law firm which had been built with technology as a core component. There were also lawyer marketplaces or legal staffing providers that linked lawyers with clients, or lawyers with law firms. Legal Process Outsourcers who took elements of the legal service, such as discovery in litigation, and undertook it for lower cost. The multidisciplinary partnership, including the Big 4 accounting firms, offered the prospect of the one-stop shop for professional services. Business models remain a key area for the evolution of legal practice.

A development that attracted interest in the FLIP report was remote working. In a COVID-19 world this has been fully embraced, by necessity for the most part, by working from home, or ‘WFH’ for shorthand. WFH became a necessity around the world because in March, 2020 an estimated 2.6 billion people – or a third of the world’s population – were living under some kind of lockdown or quarantine.1

Remote working was prized for the flexibility it afforded lawyers and its ability to reduce office overheads. However, the pandemic has raised for consideration whether there may also be a downside to WFH. The measures taken to avoid the spread of COVID-19, including isolation, have been said to have impacted the wellbeing of citizens around the world. People, including lawyers, need personal connections. WFH needs to ensure that these connections are maintained.

A further concern that was not apparent at the time of the original FLIP report is that some new modes of practice operate by introducing the ‘gig economy’ to legal practice. The worry is that lawyers, particularly new members of the profession, while having greater flexibility and autonomy will also face greater precariousness in employment and income, as well as reduced opportunities for professional development.

LEGAL TECHNOLOGY

The FLIP report covered a range of new technologies, or technologies being used for new purposes in the legal field, including mobile technology, big data, the internet of things and artificial intelligence (AI).

At the time there was enormous interest in cutting edge technologies like AI as it offered the opportunity for dispute resolution, due diligence, document drafting and compliance to be automated with the result that less hours and less cost would be incurred.

Consistent with remote working, the FLIP report identified that lawyers were no longer tied to their office because of mobile technology. The virtual law firm was becoming a reality, but the levels of interaction with technology varied significantly across the profession.

The pandemic made mobile technology and video-conferencing software apps such as Zoom, Cisco Webex and Microsoft Teams essential business tools. The massive uptake of these apps by almost everyone in the profession so as to be able to keep practising was not foreseen by the FLIP report. The videoconferencing software app has been used for internal team meetings, client meetings, negotiations, witness interviews, mediations and even court hearings and trials. This introduced new challenges such as security and confidentiality, and for the courts additional questions about how to maintain open justice and procedural fairness. The refinement of these apps will continue now that their utility is accepted.

What remains unclear is what other technologies will receive expanded usage.

CLIENT NEEDS AND EXPECTATIONS

The FLIP report identified that across all clients - corporate, government or individual - the client wanted user-friendly legal services that solved problems in a cost-effective manner. Easily said – but much harder to deliver.

The FLIP report put forward some solutions:

• Lawyers needed to understand a client’s needs and their drivers or concerns. • The lawyer obtains that understanding through engagement and collaboration with the client. • The legal product must be fit for purpose, which means practical and comprehensible (pithy and in plain

English to the extent possible)

The FLIP report also found that the “imperative to keep costs low is the most powerful driver of change today”. Price pressure has challenged the once ubiquitous time-based billing and fostered alternative fee arrangements. Cost concerns also saw greater interest in outsourcing, insourcing (inhouse lawyers doing more work internally) and unbundling (lawyers performing only a part of a legal service).

The pandemic with its forced shutdown or new operating requirements for many businesses, from global airlines to neighbourhood restaurants, as well as new government support initiatives such as Job Keeper, meant responsive, costeffective legal advice was highly sought after. The responsive, affordable, clientfocused lawyer is always needed, but particularly in times of crisis.

LEGAL EDUCATION

The FLIP Report recognised seven skills or areas of knowledge that were identified as essential for the successful future practice of law: • Ability to understand and employ technology • Practice skills (interpersonal skills such as teamwork and collaboration

and professional skills such as writing and drafting skills, interview skills, presentation skills, advocacy/ negotiation skills) • Business skills (such as accounting, finance and marketing) • Project management • Internationalisation and cross-border practice of law • Inter-disciplinary experience • Resilience

While technology was a key focus there were also a range of other skills aimed at providing a lawyer with the know-how to provide responsive client-centred legal services. Moreover, while lawyers need to be able to use technology, the lawyer also needs to be able to differentiate themselves from a technology solution through emotional intelligence, teamwork and collaboration.

University education, including that provided by law schools, has been stunted by the pandemic. The focus has been on staying afloat rather than exploring new areas. Revisiting the structure of legal education, such as what courses or topics should be compulsory, so as to create space for new offerings, as well as investigating how new areas of knowledge may be taught have had to wait. But legal education needs to develop so as to align with the future legal profession’s needs.

DIVERSITY

The FLIP report identified that lawyers continue to be held back from full participation due to a variety of factors including gender, disability, family status, faith and cultural identity. The profession does not yet mirror the diversity of the Australian community. However, diversity can drive not just better business outcomes, it can be a source of innovation.

The pandemic has highlighted the need for a continued focus on this issue. The pandemic has impacted members of the profession unequally, just as it has impacted people and businesses differently. McKinsey & Co has reported that ‘the virus is significantly increasing the burden of unpaid care, which is disproportionately carried by women’ and impacts their ability to undertake pre-existing commitments.2 Equally the media and academic literature has argued that the leadership lessons from COVID-19 include putting more women in charge, or more accurately, having leaders with the leadership style that is more often associated with women ie being more empathetic, collaborative, accepting fallibility and being responsive to new learnings.3

COMMUNITY NEEDS

Demand from vulnerable and disadvantaged people for legal assistance continues to grow. The failure to meet that demand worsens problems of poverty, inequality and unremedied injustice. It may also have flow-on consequences in other sectors – such as health and social services – involving significant additional financial costs.

The pandemic created greater demand for legal assistance in the community as job losses and business closures meant people needed to know their rights and be able to take appropriate action in relation

to employment issues, housing issues, such as being unable to pay rent, financial issues such as dealing with debt repayments and possible bankruptcy, and civil rights more generally as fines or arrests took place due to contravention of restrictions made pursuant to emergency powers.4

An important way to address community need is government funding of legal aid and community legal centres. Another is pro bono legal services. Both have increased in response to the pandemic. However, the FLIP report was interested in what further solutions could be found.

The FLIP report found that technology seemed very promising, with digital legal applications to address issues in the community legal sector being the focus of law school courses and hackathons.5 But Australia has not yet seen major gains here. The opportunities to serve unmet latent demand for legal services are numerous. Some will be notfor-profit and others will use technology to be able to provide affordable, but profitable, legal services.

CONCLUSION

The pandemic has accelerated some changes, such as WFH and mobile and video-conferencing technologies. It has also seen areas that needed further development fall behind. Nonetheless, change has become consistent and the legal profession needs to continue meeting the challenges created by that change. B

Michael Legg is Professor and Director of the Law Society of NSW Future of Law and Innovation in the Profession research stream at UNSW Law. Gary Ulman is former President of the Law Society of NSW and Chair of the Future Committee that produced the FLIP Report.

Endnotes 1 Mia Jankowicz, “More People Are Now in

“Lockdown” than Were Alive During World War

II” Business Insider, 25 March 2020, 25. https:// www.sciencealert.com/one-third-of-the-worlds-population-are-now-restricted-in-where-theycan-go 2 Anu Madgavkar, Olivia White, Mekala Krishnan,

Deepa Mahajan, and Xavier Azcue, COVID-19 and gender equality: Countering the regressive effects, McKinsey & Co, 15 July 2020 https:// www.mckinsey.com/featured-insights/future-ofwork/covid-19-and-gender-equality-counteringthe-regressive-effects# 3 Peter Huang, ‘Put More Women in Charge and

Other Leadership Lessons from COVID-19’ (University of Colorado Law Legal Studies

Research Paper No 20-21, 2020). 4 See https://justiceconnect.org.au/help/covid19/ 5 See UNSW, Digital legal applications can provide greater access to justice, 13 December 2019 https://www.law.unsw.edu.au/news/digital-legalapplications-can-provide-greater-access-to-justice

Melbourne Law School, Law Apps opportunity for not-for-profits https://law.unimelb.edu.au/ law-apps-calls-for-expression-of-interest-fromthe-community

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