There have been many articles and blogs foretelling the death of the legal profession, either by AI, automation, robots, or all three at once. Consultwebs LAWsome Podcast sat down with legal technologist Michael Simon and Hogan Lovells attorney Alvin Lindsay, to discuss the disruption of the legal profession from the Lola v Skadden decision, which stated “anything a machine can do, can’t be considered legal practice.”
So the recent move by the California State Bar to consider proposals allowing non-lawyers to partly operate a law firm and offer legal advice, can be seen as not only a disruption to the function of lawyers and the business models of law firms, but the first clear indication that the automation of the legal profession isn’t just future-talk. The future might already be here.
Here is a sample from the LAWsome interview –
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Jake Sanders: Michael Simon is the principle of his own legal technology consulting firm, Seventh Samurai, and regularly serves as an adjunct Professor. Alvin Lindsey is a litigation and international arbitration partner at Hogan Lovells US. For over two decades. Mr. Simon and Mr. Lindsey had been frequent commentators on issues related to technology and the law. After reading their recent piece on the Lola v. Skadden decision in the Yale Journal of Law and Technology, we connected, and we are honored to have them both on the show today. Mike, Al, thanks for showing up today. You guys both contributed to this amazing piece. So, can you guys give a brief overview of the case itself and what are the facts and the implications around the decisions in this recent appeal?
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Mike Simon: I can do that. 2014, 2013 was the age of contract, e-discovery, and document reviewers trying to get back at folks. It’s a terrible job. It’s a miserable job. One of the things that some of them did is they went after the companies they were working for overtime.
Al Lindsey: The lawyers don’t get overtime.
Mike Simon: They do not. And the reason we don’t is the FLSA, Fair Labor Standards Act, deliberately excludes anyone engaged in the practice of law from receiving overtime. Now, all of these cases got dismissed including David Lola’s v. Skadden in the Southern District of New York. There was pre-dismissal hearing, pre-motion hearing I think is what they called it in Southern District. The judge said, “I’m very skeptical about this, the fact that you’re reviewing documents. Even though it doesn’t require legal judgment, there’s a low threshold for the practice of law. All associates do this stuff. Dismiss the case.” It seemed like every other case until suddenly the second circuit took up the case and decided to hear it. And at oral argument, something really extraordinary happened. One of the second circuit judges asked, “If a computer can do that how was that the practice of law under any jurisdiction?” I was never an appellate lawyer. I was a trial lawyer. But I do believe, and Al correct me if I’m wrong, appellate judges aren’t supposed to do sua sponte stuff.
AL: Well, they can do whatever they want
MS: Nobody briefed this. Nobody had briefed it. It was not in any of the appellate briefs, it was not part of the Southern District of New York discussion or order, nothing. Out of the blue. Instead in their written opinion in reversing this, they said that anyone who undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law. That sounds like just another statement – just another thing, but when you think about it, that’s an incredibly dangerous, incredibly bad standard.
AL: Because you want to protect our monopoly, right?
MS: Yeah, and you want to make sure that we have lawyers being able to do things that require justice and judgment and wisdom. Yeah. It’s a bad thing. If on the other hand, you’re great with robots doing all that. Fantastic, that’s the problem.
JS: Al, do you have anything to add to that? Is there anything that struck you originally from the original case and the appeal?
AL: It didn’t surprise me. We actually got the CDs of the oral argument and played it and listened to it. It seemed kind of a normal thing that might come up in an oral argument. What surprised me is that it became that one kind of innocent sounding question from out of nowhere, which force counsel to say, “Your honor, if a machine can do it is not the practice of law.” That became the central holding of the case. When you think about it, it’s not a stretch to see how that can really erode this monopoly, which is what it is, that the EDA and lawyers have established on essentially UPL. Paralegals can practice law. But if you can somehow program a machine to do it that’s not the practice of law. So, they’re exempt. For lawyers wanting to protect their domain, that’s certainly a threat. But we can’t be Luddites. There’s this inevitable march of technology and it’s growing at this exponential rate that people far smarter than me talk about. I mean Elon Musk says he’s closer to AI than anyone and it scared the heck out of him because most people just don’t know how powerful this stuff is and where we are in terms of its advancement.
JS: I think that’s the most important part – I don’t think people understand and you lay it out in the piece, but this is different. The previously published threats against disruption of the legal profession, it didn’t seem like it was taking. This seems like it is.
You say Elon Musk has AI, but he couldn’t get a submarine to rescue those kids in that cave. Robots are scary, but a lot of people have Roombas, which is a robot, and I’m not necessarily scared of the Roomba.
MS: You should be Paul Julius: I was going to say, those things are terrifying
JS: But I’m wondering just speaking specifically to the practicing attorney, why does this finding matter more than all the other previous threats?
MS: I think it’s a couple of things. By the way, one of the things that really attracted me to Lola and this case there was a certain disappointment afterwards. There was a whole bunch of folks who wanted to see the second circuit say, “Let’s give the contract document reviewers overtime, let’s free the galley slaves, power to the people,” and it didn’t really happen. But the ones who did pick up on it were some of the tech entrepreneurs, our versions of Elon Musk. More than a few of them wrote about how this decision freed them up to say, “Well, now that we’re building robots that can do things let’s take the corollary. As soon as a robot can do something it’s no longer the practice of law. UPL is now gone.” So, when you look at this, and I do understand, I can very much understand the lawyers who say, “We’ve heard this before.” One of the things we quote in the article is an article from 1963 talking about the robot take over, and it quotes an article from 1950 something. But the thing is, Al talked about that exponential power. If you draw an exponential graph, it looks like a long, long, boring sort of low-lying climb until all of a sudden they hit that tipping point and it flips. We’re somewhere around that scary tipping point where things are happening. When robots are driving cars. When robots are calling people. When robots are answering phones. This stuff is different now.
AL: The people doing AI in Silicon Valley right now are making more than NFL quarterbacks and there’s a reason for that. If I were some young, brilliant kid coming out of Stanford CS I’d be looking around the world and looking for opportunities to displace human endeavor and jobs and automate those jobs. And I know that’s what a lot of smart people over there in Silicon Valley are focused on right now, and a number of them are focused on the legal profession which has traditionally enjoyed a monopoly. We talked about that when we talk about the value that lawyers have traditionally gotten – what is it Mike? $63 billion a year or something because of the monopoly. People are looking in the name of efficiency and progress to put us out of work. The smart ones that are going to survive are going to have to adapt. That’s the endpoint of our article.
MS: We’re not saying that robots are going to replace all lawyers, but they’re going to replace an awful lot of them, particularly those who do not adapt to, do not recognize that “Yeah, this time is different.” EPISODE LINK https://www.thelawsomepodcast.com/podcast/ep-32-lola-vs-skadden-and-the-automation-of-the-legal-profession
