In “Legal Practice and Legal Delivery: An Important Distinction”, Mark Cohen argues that technology has transformed the delivery of legal services but not the practice of law. He defines delivery as “how services are rendered” and practice as “what lawyers do and how they do it”.
The delivery of legal services is a play with many actors…The days of law firms having a stranglehold over legal delivery have given way to the rise of in-house lawyers and departments, legal service companies, and technology companies “productizing” tasks that were once delivered as services. Again, it is not legal practice that is changing but the structure from which those services are being delivered.
Although I agree with Cohen’s argument that technology is changing how legal services are provided, I disagree with Cohen’s assertion that the practice of law remains the same. The practice of law is the provision of legal services.
In Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213, Justice Myers states that:
The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.
Delivery cannot be divorced from practice. The rendering of legal services is the practice of law. The medium is the message!
Why is technology changing the practice of law?
At its core, the law is information-based. And lawyers are in the middle of an information revolution. Technology is changing how much law we have, how complex it is, how regularly it changes, and who is able to advise on it. This is causing the work of lawyers to change. As we transition from a print-based industrial society to an Internet-based information society, “the future of legal services belongs to those with the ability to think creatively”. (Richard Susskind, Tomorrow’s Lawyers)
Why does it matter that the delivery of legal services is the practice of law?
As new technology companies introduce new legal “products”, they will adopt the arguments of Uber. They will argue that they are a technology company delivering a product and not a company practicing law. This argument must be revealed for what it is. A weak technical argument made to avoid liability for the unauthorized practice of law.
Instead of forcing new technology companies to operate outside the law, we should begin regulating them. Their ascent into the world of legal services has just begun.