Technology-based legal document generation services and the regulation of legal practice in Australia

This article examines, in the Australian context, the status of technology-based legal document generation services provided directly to the public, where the service provider is not a lawyer or law practice. A brief overview of how legal practice is regulated, what legal practice is and who can engage in it under Australian law is provided to consider the circumstances where this type of service may amount to the unauthorised practice of law. Keywords Unauthorised practice of law, unauthorized practice of law, legal document providers.

Read the full article here.

Trade Mark Infringement and Artificial Intelligence

Abstract:

Artificial intelligence (AI) technologies are starting to alter the way in which consumers shop for and purchase goods and services. This exploratory article examines some of the implications the increasing use of AI technologies may have to the law of trade mark infringement under New Zealand’s Trade Marks Act 2002. Trade mark infringement is typically predicated on a finding that there would be a likelihood of confusion caused by the defendant’s use of an identical or similar sign to a registered trade mark. Established trade mark doctrine assesses whether confusion is likely by having regard to the perceptions of the hypothetical “average” human consumer, who has deemed human traits and psychological characteristics. The article suggests that as AI becomes more heavily involved in helping consumers shop for and purchase goods and services various discordances with this established trade mark doctrine may develop. After analysing these potential discordances, the article considers how New Zealand trade mark legal doctrine may adapt. The article concludes by considering how the increasing use of AI technologies may challenge fundamental understandings of the role of trade marks, and the implications this could have for legal doctrine.

Batty, Rob,(2021). Trade Mark Infringement and Artificial Intelligence. New Zealand Business Law Quarterly (Forthcoming).

Read the full article here.

Information technology and the future of legal education: A provocation

This short paper explores, albeit in a preliminary fashion, challenges to legal education arising from the significant impact of new information and communications technologies (ICTs) on law and legal practice. It uses the pervasiveness of ICTs to reframe the question of “law and technology” from a philosophical perspective that sees information technology as an “environmental force”2 that is capable of re-shaping our identity, agency, and social relations, and hence constitutes a significant means through which we make sense of the world.3 The key question the paper poses thus emerges: how should we design the law curriculum when the law-technology relation is itself understood as a critical part of a continuing and profound transformation in what it means to be both a lawyer, and a human being?

Read the full paper here. 

Further fund award is an opportunity to connect innovative services with those who need legal help

The SRA have won a grant from the latest round of Regulators Pioneer Fund (RPF) to help connect those using new legal technologies with those who need their services.

They have been awarded £167,856 from the Department for Business, Energy and Industrial Strategy (BEIS) to be used to create a new network where regulators, expert research institutions and local government can work together to improve legal access within local communities. The SRA aim to do this by supporting, testing and promoting new and emerging legal technology.

The project will involve partners from a number of universities in the West of the country and Wales, as well as the Information Commissioner’s Office and the West of England Combined Authority. Communities around Swansea and Bristol will be engaged to test new developments.

Initially the project will focus on discovering what innovations are out there and the best way to connect them to those in need.

Read the full story here

Law Society of Saskatchewan releases new podcast on the future of law and technology

The Law Society of Saskatchewan has released a new podcast on the changing role of technology in the legal profession. The podcast looks at how technology is being treated in legal education, as well as what the society is doing to react to the changes/

The podcast features Tim Brown, Q.C. Executive Director of the Law Society of Saskatchewan; Martin Phillipson, Dean of the College of Law at the University of Saskatchewan; and Craig Zawada, Q.C., Past President of the Law Society .

Listen to the podcast here. 

Solicitors Regulation Authority of England and Wales publishes results of study into innovation in the legal sector

The Solicitors Regulation Authority of England and Wales (SRA) has published the results of its independent study into innovation in the legal sector, commissioned in March.  The study was carried out on behalf of the SRA by a research team at the University of Oxford which included Professors Mari Sako and John Armour. The study has concluded that the majority of law firms were increasing their day-to-day use of technology, however, the development of bespoke legal technology was largely focused on advances which would benefit larger corporate clients.

The study has found that the pandemic has significantly impacted the uptake of technology, over the past 18 months it has been found that 87% of firms now use video conferencing services to meet clients and 66% store data in the cloud. 90% of firms also reported that changes made during the COVID-19 pandemic will be kept in place to some extent.

Technology usage was found to be highest among younger firms, firms operating through alternative business structures, and firms working in areas where technology was already established, like conveyancing. In terms of more advanced technology use- such as the use of automated documents, interactive websites and artificial intelligence – a little more than a third (37%) of law firms said they were currently using these.

The research found that the key stumbling blocks in innovation were related to funding and scalability. This meant that most bespoke development among technology companies was focused on products for the corporate sector. Firms working with individuals and small businesses stated that the most common barriers to accessing more advanced or targeted technological solutions were affordability, a lack of inhouse technology skills, or uncertainty over the business benefits from making an investment.

Anna Bradley, Chair of the SRA, said: “Supporting innovation and the adoption of legal technology is a key priority, as we set out in our Corporate Strategy. It can help increase access to justice for the public and small businesses, as well as supporting firms to be more efficient, benefitting everyone and the economy as a whole. These findings drive home the fact that when we talk about technology, we need to remember just how broad that term is and how far there is for some to travel. This is not just about artificial intelligence, virtual reality or future technologies. Some of the innovation which has the greatest potential to improve access to justice at pace is already available. Such technology can be applied widely and be used on a day-to-day basis to benefit both consumers and law firms. The challenge now is how we all work together to enable this to happen.”

Mari Sako, Professor of Management Studies at the University of Oxford and project leader for this research, added: “Technology and innovation have already changed, and will continue to change, the face of the legal services sector. Our research provides robust evidence of this. But we also found that benefits from legal technology are not evenly distributed across different market segments. Regulators, including the SRA, collaborating with other stakeholders could play a major role, not only to lower regulatory uncertainty but also to level the playing field across the market segments.”

Based on their report, researchers identified three key areas to be addressed in order to allow for greater development of innovation and technology:

  • Greater support and co-ordination among government, regulators and tech developers – particularly in encouraging innovation and identifying funding paths
  • Increasing public and law firm trust in new approaches and technologies
  • Increasing the technological and innovation skills and knowledge bases within the legal sector.

Read more and access the research here.

Lawyer Ethics for Innovation

Abstract

Law struggles to keep pace with innovation. Twenty-first century advancements like artificial intelligence, block chain, and data analytics are already in use by academic institutions, corporations, government entities, health care providers, and others but many questions remain about individual autonomy, identity, privacy, and security. Even as new laws address known threats, future technology developments and process improvements, fueled by consumer-demand and globalization, inevitably will present externalities that the legal community has yet to confront.

How do we design laws and systems to ensure accountability, equality, and transparency in this environment of rapid change? A solution can be found in a surprising source — the regulation of professional ethics. Lawyers have the capacity to play a critical role both in assessing the risks and benefits of innovation generally and also in deploying innovative tools to enhance the delivery of legal services. This Article is the first to articulate a formal obligation of ethical innovation as a component of professional discipline and licensing rules. This proposal comes at a time when the legal profession is increasingly immersed in innovation — whether measured by the number of “NewLaw” providers, exponentially increasing financial investment in legal tech, or by the American Bar Association’s 2020 Resolution supporting innovation to address the access-to-justice crisis.

Rather than taking a particular side in the debate over whether lawyers and judges should adopt innovations like artificial intelligence or machine learning, this Article acknowledges that technology advancements inevitably are part of modern society, including the practice of law, and advocates for reforms to professional conduct rules to protect individuals in the midst of innovation. This protection is especially warranted when innovation is forced amidst a moment of crisis, for example as seen when the 2020 coronavirus pandemic abruptly halted law practice in its traditional form, canceling office meetings and jury trials and other in‑person interactions. Some lawyers and courts were prepared, others were not. Some clients received the legal advice through virtual consultations or apps, and had their cases decided by judges via Zoom hearings, but many found themselves without the justice they needed. The lawyers and judges at the forefront of ethical innovation before the pandemic hit were the ones best able to serve their clients. Formalizing a duty to innovate as an ethical obligation will make the profession better prepared to serve the public in the future.

(Newman) Knake Jefferson, Renee, Lawyer Ethics for Innovation (April 20, 2021). 35 Notre Dame Journal of Law, Ethics and Public Policy 1 (2021), U of Houston Law Center No. 2021-A-7,

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. 

New research project on innovation and the use of technology in the legal sector in England and Wales launched by the Solicitors Regulation Authority

The Solicitors Regulation Authority of England and Wales (SRA) is launching 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. 

Lawtech: Levelling the Playing Field in Legal Services?

Abstract

The legal services market is commonly thought of as divided into two “hemispheres”– PeopleLaw and BigLaw. These segments represent, respectively, individuals and corporate clients. The last few decades have seen an increasing concentration of resources within the legal profession toward serving corporate clients, to the alleged detriment of consumer clients. At the same time, the costs of accessing legal representation exceed the financial resources of many ordinary citizens and small businesses, compromising their access to the legal system. We ask: will the adoption of new digital technologies lead to a levelling of the playing field between the PeopleLaw and BigLaw sectors? We consider this in three related dimensions. First, for users of legal services: will technology deliver reductions in cost sufficient to enable affordable access to the legal system for consumer clients whose legal needs are currently unmet? Second, for legal services firms: will the deployment of technology to capture economies of scale mean that firms delivering legal services across the two segments become more similar? And third, for the structure of the legal services market: will the pursuit of economies of scale trigger consolidation that leads both segments toward a more concentrated market structure?

Armour, John and Sako, Mari, Lawtech: Levelling the Playing Field in Legal Services? (April 21, 2021).

Read the full article on SSRN.