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Rise of the machines: just one tech challenge for lawyers

Opinion

South Australia’s legal profession must embrace technological change and global opportunities if it is to prosper, argues legal commentator Morry Bailes.

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Last week Google artificial intelligence defeated the foremost player of Go, a game infinitely more complex than chess said to have more possible board positions than atoms in the universe, according to GeekWire. The emergence of AI in such a tangible form is as profound for the legal industry as it is for all professional services. Algorithms are so advanced that they are capable of previously unimagined achievements.

Artificial intelligence is only one expression of the dramatic advancement of technology that will in time end the lower-end provision of legal services. It is the beginning of the next revolution of technological capability, which will be the hallmark of the 21st century. Service jobs thought to require skill beyond the reach of the machine will evaporate before its advance, just as the 20th century consumed the jobs of those in industry. Think just how many people are employed now that mining trucks drive themselves and machines manufacture cars and equipment? Such may be the fate of the services industries in this current century.

How then will the services industries, including the legal profession, respond? The consumer will wise up soon enough, as have Uber users versus the taxi industry and Air BnB aficionados when comparing that product with the hotel industry.

None of this will happen so suddenly that there will not be time to adjust. Regulatory restraints in the law will also play a big part. There are paramount public policy considerations at play and a vital ingredient, the independence of the courts, will impact the rate of change. Nevertheless that in itself may be a guide as to what will succumb to technology and what may survive in the practice of the law. Lawyers should be deceived that these factors alone will keep the wolf from the door.

The leading academic in the professional services futures space, Richard Susskind from Oxford University, is actively encouraging law undergraduates to abandon the traditional humanities as an ancillary qualification in the pursuit of their legal careers. Complementary degrees such as engineering, media and ICT are high on the list of qualifications necessitated by this brewing 21st century revolution. Given the gross ‘oversupply’ of legal graduates, prospective employers, if at all attuned to the moving ground beneath their feet, will opt for those graduates best equipped to embrace the future.

It is imperative that we match our legal expertise with the current technology acumen of Asia, and keep apace with regulatory change lest we fulfil current perceptions that South Australia is fast becoming an Australian backwater; an estuary of outdated thought and monumental lack of vision.

The Law Council of Australia and its constituent bodies have recognised the urgency of advising the profession in these uncertain, changing, yet exhilarating times. If it plays its cards right, the profession can stay with or ahead of the game.

Much of what is currently known about technology must be placed in digestible form for our profession. Those who have regard will flourish. Those who do not will slowly perish, but such is business. Notwithstanding the ancient character of our profession, in which some may seek to take solace, such trust is misplaced and will be to their detriment.

The Law Council’s Legal Profession Futures Committee advises the profession on how to gear up for the present century. It is an exercise of recognising current and emerging trends, educating lawyers and their firms to ‘gird their loins’ to sufficiently understand and negotiate the waters of change. Australia is a smart country and the message will not be lost on our brightest legal professionals, many of whom already ‘get it’.

The committee considers issues like future work practices and firm structures, education, cyber security, blue sky possibilities, and globalisation, the latter with all its pitfalls and possibilities. In its just published report entitled Digital Globalisation: The New Era of Digital Flows, McKinsey reflects that notwithstanding what cross-border digital trade has added to global GDP (an astonishing 3.5%) more has been lost in the decline of cross-border trade in goods, services and financial transactions. It is inevitable that where there are ups there are downs. The trick is not to try to catch the falling blade.

Globalisation also raises the issue of export of legal services. It is postulated that Perth, for example, in the same time zone as China and much of South East Asia, will be a vibrant business and financial centre for Asia by 2050. Legal services must follow. More than that, the Asia Pacific is on the doorstep of all of Australia. Within our close and immediate region are some of the biggest global economies of the second half of this century. We are a sophisticated and advanced democratic economy whose contribution to law and the rule of law will be sought out if we are prepared to embrace the challenge.

The regulatory doors of foreign markets are being prised ajar by the excellent work of the Law Council’s President, Stuart Clark, its Transnational Practice Division led by the ilk of Director Narjuna Nadaraja, a former lead negotiator for DFAT and the Australian Government, and by its Deputy Secretary General, Margery Nicoll, a ranking member of the International Bar Association, whose influence in that organisation and others is far reaching and influential. India and South Korea are high on the Law Council’s priority list which also includes other Asian tigers.

The challenge for the Law Council and the profession is to place us in a state of readiness to step through these doors when they open, challenging potential British and European dominance in our geopolitical area.

An intriguing event happened recently for my family law partners at my firm. We had our first case in Fiji. The message is that the practise of the law beyond our borders is not only the preserve of the big firms. It is well within the grasp of small and medium size firms and most particularly barristers. The need for expertise in areas of alternate dispute resolution (to avoid the potentially horrendous cost of litigation) and international arbitration, to name but a few, lends itself to the bar.

There is however a rider and that is that no Australian professional will survive the 21st century technology tsunami as a Luddite. The state of South Australian courts is simply unrepresentative of the sophistication of developed Asian countries. South Australia is also hardly helping the Australian cause by being the only jurisdiction where foreign lawyers are ‘carved out’ of the regulatory scheme. Further we sit outside the Uniform Law with all its economic opportunity. It is difficult to put us in the forefront of future advance in this area when we demonstrate by our every action an inclination to sit outside the tent.

We may presently have an upper hand in accomplishment, a tradition in the rule of law – with all its trappings – as well as contemporary judicial experience, but our upper hand may not last. It is imperative that we match our legal expertise with the current technology acumen of Asia, and keep apace with regulatory change lest we fulfil current perceptions that South Australia is fast becoming an Australian backwater; an estuary of outdated thought and monumental lack of vision.

The future blueprint for the export of Australian legal services requires not only the deregulation of foreign markets, a project enthusiastically embraced by the Law Council, but the education of our profession to embrace the possibilities offered by future legal practice. Our legal know-how must equate with and equivalent know-how in communication information and technology.

If we fail, all is not lost. We shall, in a diminishing way, serve local needs. If we succeed we will be a bank of legal knowledge and resource for the Asia Pacific, not only promoting our profession but also the rule of law, that ‘golden thread’ that militates against injustice and brings to an economy surety and prosperity. The truth is that all economies who uphold the rule of law ultimately succeed and all who do not ultimately fail.

For Australian lawyers the hard yards of familiarising ourselves with the technological new world order should be worth it for that alone. With the rule of law comes not only economic benefit to our neighbours and thus ourselves, but with it a knowledge that the citizens of those countries abroad, who may not currently enjoy the rights, liberties and freedoms that we, cloaked in the protections of good law do, can share too in the certainty of impartial justice.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.

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