American Indian Law

  
 

Trends

Unprecedented Changes Are Underway in the Legal Profession —Including in Indian Country

All around the legal profession, the talk is about change—change in the way lawyers work, where they work, how they go to court, how they communicate with clients, and more. Paper files are being replaced with electronic data, meetings and court appearances are taking place online, and lawyers increasingly are working from home, sometimes even in states other than where their offices are located.

Changes — being described in terms such as “transformative” and “far reaching” — are occurring in the way lawyers render legal services to clients, including to tribes and individuals in Indian country.

The legal profession often has been viewed as resistant to change. Legal technology commentator Robert Ambrogi wrote in 2018 that the “legal profession sees innovation as a threat.” But like many other businesses, law tends to make changes more readily in response to a crisis. For the law business and many others, the latest impetus for change was the global coronavirus pandemic.

What changes is law undergoing, and how are they impacting legal services to Indian tribes?

Remote working and meeting. By necessity, the legal profession joined businesses, industries, and governments — including tribes — nationwide in quickly embracing remote work in 2020. A report issued this past spring by the American Bar Association, “Practicing Law in the Pandemic and Moving Forward,” observes that the “extended period of remote work will have a transformative and far-reaching impact on the legal profession.” In response to an ABA survey, most attorneys indicated they want to continue working remotely. Remote work, it seems, is here to stay.

Many tribal attorneys already work at a distance from the reservation. Today’s remote work, however, involves enhanced means for participating in meetings by video, as well as other innovations. Tribes may have more choices when they select legal counsel in the future since proximity to the reservation may be even less of a factor than it is now.

Technology and the “uberization” of law. One of the topics receiving the most attention in the law business is the increased emphasis on legal technology. The legal information services firm Wolters Kluwer recently released a survey reflecting that most law firms are planning to increase their investment in technology in the short term. Among many other areas, law firms and law departments are utilizing technology more in areas of practice ranging from document preparation to document review, and they are using more cloud-based services more extensively.

For several years, commentators have been predicting the “uberization” of law — in other words, that technology could impact the legal profession in the same way it changed the taxicab business. How this trend is changing the delivery of legal services is much debated. Some analysts believe it will result in more affordable costs in some areas of law, while others note that there will be winners and losers—namely, those who embrace technology and benefit or gain a competitive advantage and those who fail to do so.

Indian country historically has embraced technology. Years ago, tribes used telephones and faxes highly effectively. In more recent times, they have used the internet and social media to advance in business and to participate in government and political processes. During the pandemic, for example, tribal leaders were able to use videoconferencing to meet with members of Congress, without the time and expense of travel.

Technology unquestionably presents capacity-building challenges — including funding and human resources challenges — for Indian country. But if the past is any indication, tribal governments likely will acquire and make the most of the new technology in their legal business.

Disappearing rural lawyers. For several years, the main street attorney has been described as an “endangered species” in rural America, where most tribes are located. In the coming years, tribes and their members may find it more and more difficult to rely on local attorneys, particularly those qualified in the niche area of American Indian law. This presents challenges not only for many tribal governments seeking a local attorney but also to tribal members seeking access to justice. The opportunity to obtain legal services remotely, however, may help tribes address these challenges.

Online courts and online dispute resolution. During the pandemic, many courts, including tribal courts, have conducted official proceedings online. This has served as an opening for a broader discussion about reimagining courts as online justice systems not dependent on brick-and-mortar courthouses. It also has generated interest in online dispute resolution (“ODR”) systems, which refers, in general, to extra-judicial services. Tribal governments may be in a better position to innovate in the use of online court functions and ODR than other governments, due to their efficient lawmaking processes.

The movement to fundamentally change legal services. At the same time as the legal business is addressing enhanced technology, broader movements are underway to make certain legal services more accessible and affordable. Several states are considering changing long-standing professional regulations restricting who can hold an ownership stake in law firms. This means, for example, that a large tech company might be permitted to market legal services. Last year, Arizona became the first state to make such a change. While the ABA and many lawyers oppose such developments as potentially threatening professional standards, advocates argue that entities other than law firms potentially could market legal services at lower costs than those offered by traditional law firms. ODR and other similar legal innovations are also actively under debate.

Tribes establish and regulate their own legal systems and the professionals who practice in them. But tribal law does not operate in isolation—it has been dependent on the overall American legal system ever since tribes began hiring attorneys in the early 19th century to enforce treaty rights. Changes in the broader legal profession undoubtedly are impacting Indian country.

Increased use of technology in law may well serve the tribes that embrace it. Legal thinkers such as Richard Susskind have been writing for several years about the need for courts to innovate, and for governments to consider them more as services than places. A world in which legal professionals increasingly work on a remote basis could give tribes better access and more options. Legal technology can enable tribes to create courts that may be more accessible and efficient than traditional court systems.

Changes unquestionably have occurred in the law business over the last 18 months, but what legal services might look like next year or a few years from now remains to be seen. Nevertheless, the legal profession is on a course to change, including in Indian county.

—Steve Ward

Mr. Ward, sward@cwlaw.com, has practiced in the field of American Indian/Native American law for almost 30 years, with a focus on Indian country business and finance and litigation. The firm’s Indian law team has assisted many tribes over the years with managing legal affairs and resources. Members of the group currently serve as attorneys general and as outside general counsel to tribes.