Cultivating goodwill and crafting a positive public perception have never been so challenging for lawyers. In the middle of what seems like an insurmountable trust crisis, three visionaries share how lawyers can better connect with and deliver for clients.
Writing in 1944, American legal scholar Roscoe Pound said the most important defining feature of a profession was that it be practised in a spirit of public service. More than 50 years since Pound’s essay, community sentiment has seen trust for institutions of power at an all-time low. That includes lawyers.
Results from the Governance Institute of Australia’s third annual Ethics Index, which surveyed 1,000 people across the political spectrum between 25 May and 7 June this year, show that trust in lawyers has diminished since 2017.
Conducted by independent global market research firm Ipsos, the index relies on an “ethical expectation deficit” (EED), which is a measure of the gap between what society believes is the overall importance of ethics and what the actual level of ethical behaviour is. In effect, it is a quantifiable way to conceptualise public disappointment against the reasons justifying that disappointment. Lawyers were given an ethical net score of -9 by the Australians surveyed, six points less than the score for 2017.
This is not just a story about the bottom line or the philosophical merits of being ethical. Trust for all lawyers is a matter of survival, says Justin Moses, 56, who has had his skin in the game for more than three decades.
“I think trust is as basic as doing what you say you will do in all circumstances – to your clients and to your colleagues and to your organisation as your employer,” Moses says.
“If you make a commitment to act in a certain way or behave in a certain way, to provide a service or to deliver advice, or to return a phone call – or you give an undertaking to a court – then you need to deliver on that.”
Throughout his career, Moses has viewed things from inside out. He started in an in-house role at Westpac and left the financial services industry last year to work as a special counsel for lexvoco’s legal operations business on a casual basis.
Trust is as basic as doing what you say you will do.
Justin Moses, lexvoco special counsel
“Working for a very large corporation, one of the things that is always at the forefront of everybody’s mind is the organisation’s reputation,” Moses says. “Particularly if it is an organisation where that’s critically important to the positioning of its offering in the market, as Westpac was when I worked there.
“Having said that, there are still very diverse views about what is and isn’t damaging to reputation or what is and isn’t enhancing to reputation.”
For lawyers, being able to demonstrate sound technical ability alongside strategic nous is a game of catch-up. Many other professional groups have already trodden this path, Moses says, but seeing lawyers finally embracing change is positive. Even simple things that make legal services more accessible and less stuffy, such as diverging from giving advice in letter form, can be a sign of progress and improving perceptions of trust.
“There is the acceptance now that if the profession is going to remain relevant, then its practitioners need to think a little differently about the way they provide services to their clients,” Moses says.
“If that means departing from the traditional multi-page legal advice to the delivery of a PowerPoint deck of slides or a short email, then so be it.
“People are recognising and responding to that.”
According to the Governance Institute’s Ethics Index 2018, millenials have the lowest ethical expectation deficit, but law graduate and researcher Alison Whittaker considers the elusive nature of trust means it is something people do not dwell on too much to begin with. Whittaker works at UTS as a research fellow with the Jumbunna Institute for Indigenous Education & Research and considers trust to be essential to a lawyer’s trade.
“How are you going to get adequate instructions if your client is withholding facts from you simply because they don’t think you’re on their side?” she says.
“Or how are you going to do that broader kind of strategic work if the community doesn’t trust that you know their vision and that you’re committed to it?”
Whittaker returned from the US in June, where she spent a year completing her masters at Harvard Law School as a Fulbright Scholar. She plans to be admitted in February. While studying in the US, she was named the Dean’s Scholar in Race, Gender and Criminal Law. At 25, the young Gomeroi woman is also a poet.
Whittaker’s perspectives on the legal system and how it engages Indigenous people inform her ideas about justice and why lawyers as a class are not so trusted.
“Indigenous people are kind of on the back foot in the legal system, because they most commonly engage with it as defendants and the criminal law, or as people who are seeking stuff like apprehended violence orders, or similar things that are circumstantial, violent, reactive ways of engaging in a system,” she says.
“When that happens, you encounter police, judges and lawyers and all of them have their own interest, their own language – and none of them really are particularly helpful.
“The lawyer has a duty first to the court, and the lawyer is usually also under-resourced. They have very little time to completely engage with the full suite of clients’ needs. It becomes difficult to distinguish who is on your side, who is ready to go in and bat for you, and who is part of this system that doesn’t actually solve problems for you but, for the most part, creates problems for you.”
It becomes difficult to distinguish who is on your side… and who is part of this system that doesn’t actually solve problems for you but, for the most part, creates problems for you.
Alison Whittaker, law graduate
These comments ring true when compared to a three-year longitudinal study recently concluded by ANU researchers. The project, “Overcoming the invisible hurdles to justice for young people”, sought to identify and overcome access to justice barriers. The researchers found that integrated service delivery and holistic approaches were key for that group to navigate a system they perceived to be alien and unhelpful.
Whittaker aspires to build what she describes as a “responsive legal practice”, which is work led by clients. Similar to the ANU project, which focused on integrated justice practice, her idea is that lawyers are available to groups in need as part of a practice where there is a pre-existing relationship of trust. A PhD is also on the cards for Whittaker, but she is most interested in connecting with social and community-led movements.
“When you move in privileged circles, you have an obligation to put the power back,” she says. “I don’t think there’s any point in training yourself to move in these circles if you’re not going to wield them for the benefit of your community.
“I’m going to try to do something that academics are not always encouraged to do, which is build a responsive practice that is not really controlled by me as much as it is controlled by communities who express their needs and express their vision for the future. I will flow to wherever that’s needed.
“Ultimately, you do the work that you do to build trust. You do things that lots of lawyers won’t do – you drive the bus, you make cups of tea because it’s important for that trust and it helps you establish that.”
The five-star future
LawPath chief executive officer Dominic Woolrych, 32, has established himself as a leader in Australia’s emerging NewLaw space. He believes the digital realm has changed the way people transact with service providers and is committed to showing the legal industry how that environment can improve trust.
Legal businesses now operate in an environment in which customers are more self-empowered and better educated about their choices. While trust is as important as ever, it plays a different role in how people choose and rely on their legal advisors, Woolrych says. One of those new expectations is that a client will have access to reviews to inform their choice about the service they are about to purchase.
“Because clients are so used to seeing reviews now, they almost expect it,” says Woolrych. “They’re seeing it on all the platforms they use – when they’re hiring plumbers, when they’re hiring graphic designers – and I don’t really think that law should be an exception.
“When you search something on Google, a lot of results are now showing with little orange stars, across all industries. The reason they’re doing that is those links are 10 or 12 times more likely to be clicked on than a link without a rating attached.
“LawPath rates our lawyers out of five stars, just like an Uber driver, and we find that a lawyer is six times more likely to be hired by a client if they have more than 30 reviews against their account.”
LawPath’s online platform, which offers DIY tools and fixed-price legal services through a lawyers’ marketplace, is aimed at individuals and small businesses. The company is also considering whether to integrate some components of Litimetrics (a litigation analytics technology) into its own platform and has just secured a new American investor named Legal Zoom, which has more than four million clients.
Woolrych believes technology can do a lot to improve accountability and transparency for clients.
“I think one of the biggest issues with legal is that it’s not transparent in terms of pricing and I think that’s where lawyers get a really bad rap,” he says.
“People don’t understand the services being provided, then they’re given a huge fee but don’t understand where those costs have come from. That becomes like a rolling ball and turns into this relationship of distrust around pricing and what is actually happening.”
One of the biggest issues with legal is that it’s not transparent in terms of pricing and I think that’s where lawyers get a really bad rap.
Dominic Woolrych, LawPath CEO
One of the new features that LawPath is building is a pricing guideline for lawyers who use the online marketplace. While Woolrych acknowledges that not all kinds of legal services can be commoditised or set at a fixed price, he does not believe this should serve as reason not to try and find ways to give clients what they want, on their preferred terms. He rails against the idea that a modern lawyer can declare: “This is how it has been done for more than 100 years, so these are the fees”. Clients simply do not understand the value of this model, Woolrych argues.
“The balance of power has now shifted and lawyers have to listen to what the clients want,” he says.
“Just because you are a lawyer doesn’t mean you shouldn’t provide the best customer service, and it doesn’t mean you can take two weeks to get back with a quote.
“Lawyers got very upset with our rating system in the early days because they said, ‘I’m a lawyer, I shouldn’t be ranked, I shouldn’t be rated’. But the reality is that you’re providing a service, it doesn’t matter what service. You should be measured on your performance.”