Florida Pushes Back on Legal Technology
Yesterday Florida Governor Scott vetoed what should have been a non-controversial bill. The "Electronic Wills Act" changed up Florida's probate laws to allow the witnessing and signing of a will over videoconference, as well as the storage and probating (if that's not a word it should be) of an electric will. I wrote about the law back in March on Lawyerist. The bill passed the Florida House with a vote of 73-44, and the Senate with a 34-0 vote.
Sounds like something that would be an improvement in how wills and trusts are done, right? Especially considering that somewhere between 42% and 64% of people don't have any will or estate plan at all. And especially considering that access to justice is one of the biggst problems facing our court system. Right?
The Florida Bar's Wills and Trusts division actively lobbied for changes that slowed down the progress of the bill. It's unclear right now what Governor Scott's true motivations were for the veto, other than an alleged failure "to strike the proper balance between competing concerns" as he said in his veto letter. Read between the lines in the veto letter, however, and it's clear (at least to me) that Scott's reasons for the veto are parroting those raised by the Wills and Trusts section of the Bar.
This reminds me of another Florida Bar effort this year to counter the effects of technology on the practice of law. The Florida Supreme Court asked the Bar to address the specific issue of lawyer referral services - which take a percentage fee for every case they refer out to a lawyer. A pretty narrow issue.
In response, the Florida Bar proposed rules for itself that would, in effect, give it the
authority to regulate Google, Facebook, and any other online company that could
match lawyers with clients.
From the Bar's Petition:
The Board Review Committee on Professional Ethics and Board Technology Committee determined that the definition of lawyer referral service should be broadened to encompass the widest variety of service providers operating to match lawyers with prospective clients.Oh, wow, that really is extremely broad. Let's continue...
This not only will aid in increasing access to justice, it will provide another avenue for Florida lawyers to connect with prospective clients in a way that requires adherence to the Rules of Professional Conduct.I can't think up a metaphor to adequately describe the absurdity of letting the Florida Bar regulate Google because it will 'increase access to justice.'
Understandably companies like Avvo and LegalZoom voiced their opposition to this overreach, and ultimately the Florida Supreme Court rejected the Bar's proposed changes. Josh King, the CLO at Avvo, has his take on the situation on his blog, which you should read.
So what's with the picture at the top? Glad you asked. This picture comes from a collection of paintings done by French artists in the early 1900's that envisioned what France would look like in the year 2000. At first glance, these pictures are way off the mark: multi-armed contraptions doing housework, flying postmen, a device grinding school books into wires connected to some kind of helmets on the heads of students. Think about what concepts the artists were trying to communicate, though, and our current technology is far off on form, it's very close on function. Amazon delivery drones. Roombas. The connected classroom with the world's largest library in known history on every tablet and phone.
I see these pictures as the way state bar associations envision their future. There's no disruptive change - technology is performing the same inefficient tasks in a more intricate way. In the paintings there are still teachers, postal workers, house cleaners, and firemen. For the bar associations computers and technology are fine as long as they limit themselves to word processing, faxing, and reinforcing the established hierarchy of well-heeled law firms charging high hourly rates for repeatable tasks.
Take, for example, the Florida Bar's rule that says an attorney cannot advertise unless they have a physical office. Or the rule preventing direct contact with potential clients via telegraph (Rule 4-7.18(a)). Or saying that attorney photos must be in front of a plain background, law books, justice scales (as long as they're not deceptive!), a gavel, courtroom, etc. As if a photo of a lawyer in front of a multi-colored background would whip people seeing it into a lawyer-hiring frenzy. Or the rule preventing ownership of any part of law firms by anyone who isn't a licensed attorney - a rule not found in any other profession. Or even the abject frothy terror attorneys felt in Florida at the very idea that a lawyer in another state could get reciprocal admission.
Sadly I don't think bar associations will be open to the idea of real technological change at any point in future. Meanwhile one party in a civil case doesn't have a lawyer in 70% of cases. To be clear I'm not talking about Susskind-level stuff here about Roombas with law degrees. I'm talking about letting people use an electronic signature on a will. And until things change, they'll stay the same.