A few days ago, the ABA Commission on the Future of Legal Services, fresh from a major step forward in getting House of Delegates approval for their Model Regulatory Objectives, issued for comment a draft Issues Paper Concerning Legal Checkups.
While, it is important to note that this is NOT ABA policy, merely a draft for comment, nonetheless, it represents another important step forward for the Commission and the profession.
The draft paper, in addition to describing the concept, sadly probably very important for many members of the bar, sets out proposed Model Guidelines for such check-ups. Extracts and topics appear below.
- Consumer Protection: “legal checkup tools must be designed to protect and benefit those who use them.”
- Candor and Transparency: “must not be false, misleading, or deceptive.”
- Substantive Quality: “should be created in consultation with individuals who are competent in the applicable law.”
- Communication: “communicate to users that . . . depends on the users providing full and accurate information.”
- Limits of Checkup: “notice that a legal checkup is primarily designed to identify legal issues, not to solve them, and is not a substitute for the advice of a lawyer.”
- Resources: “direct the user to appropriate resources, such as lawyer referral services, social services, government entities, or individual practitioners.”
- Accessibility: “should be accessible to all users, including people who do not speak English and people with disabilities.” “to the public in a wide variety of venues.” “Web-based legal checkups should be available on a wide variety of electronic platforms”, “accessible, written in plain language, and easy to navigate.”
- Compliance with Law:
- Privacy and Security of Personal Information:
- Provider Information:
- Dating of Material:
To me, however, the idea that providers and web based organizations might develop and offer tools to identify peoples legal problems, and make referrals to appropriate services, has great potential.
If such tools were deployed in compliance with the emerging standards for data and data communication for triage systems, then the check-ups envisioned by the paper could become one of the front ends into integrated triage systems. The check up tells you of the problems you have that might involve legal issues, and the triage system assesses what kind of help would be sufficient to solve the problem.
My own view is that lawyer providers, and hopefully other providers, have a general ethical obligation, deriving from the duty to protect their clients interests, to point our the extent to which there may be cheaper alternatives than to using the lawyer directly. To the extent that the triage system (perhaps with the lawyers assistance) suggests that such alternatives would be appropriate, and the client chooses, then the triage system can make needed referrals.
Moreover, I would note that the paper uses careful language about the role of professional expertise in the development of the check-up:
Legal checkups should be created in consultation with individuals who are competent in the applicable law that the checkup addresses.
The paper also uses the general word “provider” to describe the entity that is providing the check-up.
In any event, the encouragement of such tools will surely increase appropriate usage of appropriate legal services, regardless of what type of provider makes them available. This could happen both from showing people which needs have legal components, and by helping make sure that those components are provided in the most cost effective way. As I assume the Commission intends, such Guidelines provide an important test of the sufficiency and appropriateness of the Model Regulatory Objectives now adopted by the ABA.
On a different topic, I think we need to explore whether the algorithms should be publicly available. On the one hand, there are likely to be claims that such algorithms are proprietary. On the other, without knowing what algorithms are being applied, how can the fairness and accuracy of the system be assessed by the public and potential users. It may be that requirements of transparency are one of the ways that some of the benefits of deregulation can be obtained, without the worst of the risks of profit-maximization. See my blogs on use of incentives in deregulation and on a code of ethics for coders.
I urge all to read and comment on the paper, as suggested in the document itself.
Even if collective will has been lacking, we’ve certainly had no lack of tools for performing robust legal checkups. I’m reminded of the one Gary Bellow and I developed in the medical-legal context some 25 years ago. See http://www.egov.ufsc.br/portal/sites/default/files/anexos/2806-2800-1-PB.pdf [Knowledge-Based Approaches to Government Benefits Analysis]
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