Legal Services Board of England and Wales releases new report on how regulation can foster innovation

On the 20th of April, the Legal Services Board (LSB) released a report outlining what legal services can do to support the safe development of technology and innovation, whilst also acting in the public interest. The report outlines steps regulators can take to create an environment that ‘de-risks’ innovation and reduces uncertainty for tech providers and consumers.

In the report, the LSB outlines the role that regulation plays in removing barriers to innovation, both by increasing consumer trust and managing risks. This would in turn allow technology to open the legal services market to underserved elements of society, such as citizens and small business. Addressing unmet legal need and access to justice issues.

The LSB also notes that technology carries risks that need to be considered and managed. These include ensuring that those with low digital capability and digital literacy are not excluded from accessing essential services. The ethical and regulatory challenges of advanced technologies such as Artificial Intelligence must also be considered while ensuring they are not stifled.

Matthew Hill, Chief Executive of the Legal Services Board, has said: “Technology has the potential to improve access to legal services. It can enable citizens to get advice and support in a way, and at a time, that suits them. It can also help legal professionals carry out their work in new ways that make them more competitive, reduce costs and support growth. Covid-19 has accelerated the pace and scale of technological change, with many providers adapting and using technology to offer their services in new ways. We have started to see what is possible, but there is a long way to go to unlock the full potential. Regulation can help build on the momentum that Covid-19 has created and harness technology to reshape legal services to better meet the needs of society. Regulation can also help secure consumer confidence and build trust in new technology. Legal services regulators can take encouragement in opening up their regulatory arrangements to support new ways of delivering services for the benefit of consumers. As the oversight regulator for legal services, we have an important role in fostering innovation. From considering technology as part of our regulatory performance framework to exploring a statutory statement that can underpin proactive regulatory arrangements, we can create, and maintain, a regulatory environment that unlocks the role of technology and innovation in increasing access.”

Read the full report and recommendations here. 

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New research project on innovation and technology in England and Wales commissioned by the Solicitors Regulation Authority

The Solicitors Regulation Authority of England and Wales (SRA) has commissioned a piece of independent research into the use of technology and innovation in the legal sector, and how this may develop in the future. The research is being carried out by a research team at the University of Oxford including Professors Mari Sako and John Armour.

All 10,200 law firms regulated by the SRA in England and Wales are being asked to complete a survey around their use of legal technology, as well what the impact of COVID-19 has been on their use of technology.

As well as surveying firms, the university is also conducting wider research with a range of industry stakeholders from both within and beyond the legal profession, with a focus on how innovation and technology can improve access to services within the public.

The aim of the report is to improve understanding of:

  • current use of innovation and technology across the sector
  • likely areas of future development
  • how to best support future innovations, including by potentially removing regulatory barriers

Anna Bradley, Chair of the SRA Board, said: “We are committed to supporting the use of innovation and legal technology that helps to meet the needs of the public, business community, law firms and the economy. Commissioning this research from the University of Oxford is an important step as we work to bring together the views of a wide range of stakeholders on what is happening in our sector at the moment, and what the future might hold. New ways of doing business and the increasing use of legal technology will affect everyone working in the legal sector, so we want to hear from as many people as possible. I encourage you all to take this opportunity to get their views heard.”

Further information about the report, including how non-law firm stakeholders can be involved is available here. 

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The Death of the Legal Profession and the Future of Law

Abstract

This article identifies the five large-scale changes that have happened or are happening to the legal profession:

1. How technology solutions have moved law from a wholly bespoke service to one that resembles an off-the-shelf commodity;
2. How globalisation and outsourcing upend traditional expectations that legal work is performed where the legal need is, and shifts production away from high cost centres to low cost centres;
3. How managed legal service providers – who are low cost, technology-enabled, and process-driven – threaten traditional commercial practice;
4. How technology platforms will diminish the significance of the law firm; and
5. How artificial intelligence and machine learning systems will take over a significant portion of lawyers’ work by the end of the 2020s.

The article discusses how these changes have transformed or are transforming the practice of law, and explains how institutions within the law will need to respond if they are to remain relevant (or even to survive). More broadly, it examines the social implications of a legal environment where a large percentage of the practice of law is performed by institutions that sit outside the legal profession.

Hunter, Dan, The Death of the Legal Profession and the Future of Law (March 17, 2020). 43(4) University of New South Wales Law Journal 1199 (2020),

Read the full article on SSRN.

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Event: The Future Is Now: Legal Services

The Future Is Now: Legal Services

Tuesday, April 27 – Thursday, April 29, 2021, from 12 – 2 p.m. CDT
Online

The fourth annual The Future Is Now conference will bring together lawyers, judges, legal academics, entrepreneurs, and other professionals from across the U.S. and internationally. The conference will explore the interplay between the changing legal profession and attorney professionalism in three areas: future law; diversity, equity, and inclusion; and well-being.

The three-day virtual conference will feature talks from legal industry experts and interactive townhall sessions that will provide attorneys with a roadmap for success in the changing legal profession.
Each day will explore a specific area of attorney professionalism: future law, attorney well-being, and diversity, equity, and inclusion (DEI). A breakdown of the speaker lineup and talk titles for each day follows.

THE FUTURE OF LAWYERING – APRIL 27, 12 – 2 P.M. CDT

• Hon. Anne M. Burke, Illinois Supreme Court Chief Justice
• Jordan Furlong, Principal, Law21 – Reinventing Professional Development for Lawyers of the Future
• Caren Naidoff and Alan Press, Partners, Shire Law Group – 2021 Vision: Power Up with Technology
• Kim Bennett, Founder, K Bennett Law LLC – Amplify the Value of Your Practice for Today’s Legal Consumer

THE FUTURE OF ATTORNEY WELL-BEING – APRIL 28, 12 – 2 P.M. CDT

• Hon. Mary Jane Theis, Illinois Supreme Court Justice
• Brian Cuban, attorney and addiction recovery advocate – The Addicted Lawyer: Where We Are, Where We Are Headed
• Dr. Diana Uchiyama, Executive Director, Illinois LAP – The Art of Healthy Lawyering
• Tracy Kepler, Risk Control Consulting Director, CNA’s Lawyers Insurance Program – Band-Aids, Baby Steps, or Big Leaps? A Well-Being Culture Shift in Law

THE FUTURE OF DEI IN THE LEGAL PROFESSION – APRIL 29, 12 – 2 P.M. CDT

• Deanie Brown, Chief Diversity and Inclusion Officer, Illinois Courts
• Ellie Krug, Founder and President, Human Inspiration Works, LLC – Allyship for Lawyers in an Awakened America
• Rick Palmore, Senior Counsel, Dentons – The Best Talent: A Diversity & Competitive Imperative in 2021 & Beyond
• Hon. Ann Claire Williams (Ret.), Of Counsel, Jones Day – Building a Pipeline: A Focus from the Beginning

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Law, Artificial Intelligence, and Natural Language Processing: A Funny Thing Happened on the Way to My Search Results

Abstract

Renowned legal educator Roscoe Pound stated, “Law must be stable and yet it cannot stand still.” Yet, as Susan Nevelow Mart has demonstrated in a seminal article that the different online research services (Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel and Casetext) produce significantly different results when researching case law. Furthermore, a recent study of 325 federal courts of appeals decisions, revealed that only 16% of the cases cited in appellate briefs make it into the courts’ opinions. This does not exactly inspire confidence in legal research or its tools to maintain stability of the law. As Robert Berring foresaw, “The world of established sources and sets of law book that has been so stable at to seem inevitable suddenly has vanished. The familiar set of printed case reporters, citators, and second sources that were the core of legal research are being minimized before our eyes.”

In this article I focus on Artificial Intelligence (AI) and natural language processing with respect to searching. My article will proceeds as follows. To understand how effective natural language processing is in current legal research, I go about building a model of a legal information retrieval system that incorporates natural language processing. I have had to build my own model because we do not know very much about how the proprietary systems of Westlaw, Lexis, Bloomberg, Fastcase and Casetext work. However, there are descriptions in information science literature and on the Internet of how systems with advanced programing techniques actually work or could work. Next, I compare such systems with the features and search results produced by the major vendors to illustrate the probable use of natural language processing, similar to the models. In addition, the use of word prediction or type ahead techniques in the major research services are studied–particularly, how such techniques can be used to bring secondary resources to the forefront of a search. Finally, I explore how the knowledge gained may help us to better instruct law students and attorneys in the use of the major legal information retrieval systems.

My conclusion is that the adeptness of natural language processing is uneven among the various vendors and that what we receive in search results from such systems varies widely depending on a host of unknown variables. Natural language processing has introduced uncertainty to the law. We are a long way from AI systems that understand, let alone search, legal texts in a stable and consistent way.

Callister, Paul D., Law, Artificial Intelligence, and Natural Language Processing: A Funny Thing Happened on the Way to My Search Results (October 14, 2020). 112 Law Library Journal 161-212 (2020).
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Models of Law and Regulation for AI

Abstract

This paper discusses models of law and regulation of Artificial Intelligence (“AI”). The discussion focuses on four models: the black letter model, the emergent model, the ethical model, and the risk regulation model. All four models currently inform, individually or jointly, integrally or partially, consciously or unconsciously, law and regulatory reform towards AI. We describe each model’s strengths and weaknesses, discuss whether technological evolution deserves to be accompanied by existing or new laws, and propose a fifth model based on externalities with a moral twist.

Petit, Nicolas and De Cooman, Jerome, Models of Law and Regulation for AI (October 2020). Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2020/63.

Read the full paper at SSRN.

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Structuring Techlaw

Abstract

Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.

The fundamental challenge of tech-law is not how to best regulate novel technologies, but rather how to best address familiar forms of uncertainty in new contexts. Accordingly, we construct a three-part framework, designed to encourage a more thoughtful resolution of tech-law questions. It:

(1) delineates the three types of tech-fostered legal uncertainty, which facilitates recognizing common issues;

(2) requires a considered selection between permissive and precautionary approaches to technological regulation, given their differing distributive consequences; and

(3) highlights tech-law-specific considerations when extending extant law, creating new law, or reassessing a legal regime.

This structure emphasizes the possibility of considered and purposeful intervention in the iterative and co-constructive relationship between law and technology. By making it easier to learn from the rich history of prior dilemmas and to anticipate future issues, this framework enables policymakers, judges, and other legal actors to make more just and effective regulatory decisions going forward.

Crootof, Rebecca and Ard, BJ, Structuring Techlaw (July 30, 2020). Harvard Journal of Law & Technology, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3664124 or http://dx.doi.org/10.2139/ssrn.3664124

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SRA legal access challenge, reports and next steps

Following the conclusion of the SRA and Nesta Legal Access Challenge, joint reports from both the SRA and Nesta have been released which highlight the lessons learned and the future next steps that will be taken to support the development of innovation. The SRA report focuses on how the lessons learned from the challenge are influencing regulation, and how this can be used to support the development and responsible adoption of legal tech. Whilst the Nesta report gives an overview of the challenge, looking at what innovations were supported, and what was learned about the wider innovation environment in the UK.

The Legal Access Challenge was a £500,000 Challenge Prize, split across early stage digital technology solutions that could directly help individuals and small medium enterprises (SMEs) better understand and resolve their legal problems. The Challenge was made possible by a grant to the SRA from the £10m Regulators’ Pioneer Fund launched by The Department for Business, Energy and Industrial Strategy and administered by Innovate UK. The fund aimed to help UK regulators to develop innovation-enabling approaches to emerging technologies. The two final winners were announced in April. The winning teams were RCJ Advice for its collection of digital tools that enable survivors of domestic abuse to get legal support, and Mencap and Access Social Care for their virtual assistant which helps people to understand and exercise their social care rights.

The 18-month challenge has been seen as successful by both the SRA and Nesta, with both seeing potential for legal technology to improve legal access. The reports conclude that the SRA’s regulation is not a barrier to innovation, but that many find it difficult navigating overlapping regulatory regimes across, for example, legal services, financial services and information management. The Challenge also showed that innovation in public-facing legal technology is mainly coming from unregulated organisations.

The scale and diversity of interest in the Challenge – with 117 applications – resulted in the Regulators Pioneer Fund providing an additional £250,000 of funding.

Feedback on the Challenge from the eight finalists showed:

  • seven had seen the development of their solution accelerated
  • seven had been introduced to new and useful contacts, with five building new partnerships
  • six had support that they otherwise would not have been able to access.

The SRA report sets out its next steps, including producing guidance to help innovators understand its rules, the requirements of overlapping regimes and how they can design products that enable regulated law firms to interact with them. It will also continue to work closely with other regulators and build networks. This includes being part of recently announced Lawtech Sandbox developed by Tech Nation.

Anna Bradley, SRA Chair and Chair of the Challenge judging panel said:
“Too many individuals and small businesses struggle to access expert help when they need it. This can be the difference between someone losing their job, home or family; or a business succeeding or failing.”

I believe tech will be a game-changer for access to legal support. Covid-19 has brought into even sharper focus the importance of digital solutions. However, it’s clear that the adoption of technology has been slow when it comes to public facing legal services.

The Challenge showed the range of ideas out there, and the potential for it to help people in vulnerable situations. I was pleased that our own regulation is not seen as a barrier to the development of tech in the legal sector but we want to do more to support innovators to navigate what can be complex and overlapping regulation.”

See the SRA’s full report on the challenge.

See Nesta’s full report on the challenge. 

 

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LSB publishes collection of articles on lawtech and regulation

The Legal Services Board (LSB) has published a collection of 11 focused on lawtech and regulation as part of its ongoing work in the area. The collection, entitled ‘Perspectives on Lawtech and Regulation’ includes contributions from Chris Handford, Director of Regulatory Policy at the SRA, discussing the regulatory challenges of lawtech; Mariette Hughes, Head Ombudsman at the Legal Ombudsman, discussing the use of big-data in decision making and Sir Geoffery Vos, Chancellor of the High Court discussing regulatory barriers of innovation.

The publication follows on from a series of papers and podcasts produced by the LSB last year, which included work from Alison Hook, discussing international approaches to regulating legal technology; Professor Roger Brownsword, discussing regulatory lessons from medicine and finance; Professor Noel Semple, discussing technological innovation and the Legal Services Act; and Dr Anna Donovan, on the regulation of blockchain.

The LSB has also announced that it plans to establish an expert reference group, made up of technology experts, practitioners and regulators, allowing individuals and regulators to share ideas and knowledge and engage with regulatory issues around technology collectively.

Matthew Hill, Chief Executive of the Legal Services Board has said:  “One of the Legal Services Board’s roles is to help foster a regulatory climate that supports innovation and increases access to legal services for everyone who needs them while maintaining high standards. The impact of COVID-19 has brought into even sharper focus the vital role that technology can play in keeping the wheels of justice turning. We want to remove barriers to innovation, and we encourage regulators to explore how we can use technology to reshape legal services to better meet the needs of society.”

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The implications of AI on legal regulators and how they can use it

At last year’s ICLR Annual Conference in The Hague, ICLR member came together to present on the implications of AI on legal regulators and how they might harness this technology to their advantage. Panelists drew from input from ICLR members and how their own institutions were engaging with Artificial Intelligence, as shown in the infographic below:

The presentation cover various aspects, including:

  • What is Artificial Intelligence? … And what it isn’t: Steve Wilson, Standpoint Decision Support
  • What are the Potential Risks to be Managed: Bridget Gramme, Center for Public Interest Law at the University of San Diego School of Law
  • How Legal Regulators can use AI: Crispin Passmore, Solicitors Regulation Authority
  • Getting into Artificial Intelligence: Alison Hook, Hook Tangaza

You can access the full presentation here:  ICLR Artificial Intelligence Presentation


Interested in the impact of new technologies on regulation? Get involved at this year’s annual conference. Contact Jim McKay (jamesmckay@lawscot.org.uk) to become involved as a speaker or session moderator. 

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