Most surveys conducted in the last years have observed that lawyers are aware of the need to modernize, digitize and elaborate new business models to better serve their clients and accompany the digitization trend of the economy.
Lawyers are however bound by professional rules and ethics that are critical to ensuring that all clients can be effectively represented, can maintain their trust in their counsels and ultimately guarantee the right to legal representation and the guarantee of a fair trial. As a result, they do not enjoy the same freedom as regular businesses when selecting service providers. This has probably contributed, albeit to a lesser degree, to the slower digital transition in the legal industry. The desire to observe these professional rules and ethics, combined with the concern to be held in breach thereof, has most likely acted as a deterrent.
These considerations warrant the implication of bar associations. They indeed have jurisdiction, along with the courts, to interpret the rules on the legal profession and the code of ethics. Some bars have furthermore already issued some recommendations regarding technologies – such as the Council of Bars and Law Societies of Europe’s “guidelines on the use of cloud computing services by lawyers” but these recommendations do not reach their objective as they require the lawyers to assess compliance on a technical level – which they do not have the training to do, and which inevitably leads to differing interpretations and blurry standards. Consequently, neither service providers nor lawyers can agree on the baseline that needs to be met – even more so when the standard varies from one country to the other.
A possible solution to this challenge would be for bar associations to set the base standards that they expect in collaboration with service providers. Ultimately, it will be the service providers’ responsibility to provide proof of the level of security of their service and to demonstrate that their service allows lawyers to fully comply with their professional rules and ethics. This approach would present additional benefits, such as (1) to promote dialogue between providers and Bar associations and would reduce the resources spent on surveillance efforts; (2) lawyers would be able to select a provider based on features, without unnecessary exposure to claims for breach of professional rules/ethics; (3) providers would be able to present their software to lawyers and inform them about technological advances – this is particularly important because it is my personal belief that clients may at some point hold lawyers liable if the latter do not use widely available technology to improve the clients’ chances of success (see my article on the topic (FR): https://www.linkedin.com/pulse/limpact-possible-des-technologies-sur-la-de-lavocate-du-torrent)
This concept of allowing the lawyers to keep themselves informed of the evolution of legal technologies directly stems from the ABA’s model rules, which state that “To maintain the requisite knowledge and skill, a lawyer shall keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” (Rule 1.1 with commentary 8) and the general obligation to use one’s best efforts in representing the client’s interests.
Providers also have a marked interest in collaborating with bar associations as it would allow them to save time, money, and resources. They would be able to create software compliant by design, i.e., with the professional rules and ethics built in, rather than having to make changes at a later stage – either because of a request from a bar association, a court order, or a client-lawyer request.
Considering the speed at which technologies develop, it is already certain that providers and bar associations would need to meet regularly and maintain a communication line. Evolutions in professional rules and ethics could then be added to the providers’ development roadmaps, be budgeted and the lawyers would benefit from up-to-date software.
This solution would allow Bar association to check compliance – rather than recommending any specific provider – and preserve lawyers’ freedom to choose whether to use software and, should they choose to use software, select from a list of compliant providers instead of having to themselves conduct this review.
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Nicolas Torrent
SLTA Vice-President – Communication and marketing | Co-head Geneva Chapter
Swiss LegalTech Association (SLTA)
