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Legal profession's cautious planning for the future

Opinion

Adopting digital technology while ensuring continued public access to justice, and deciding what sort of skill sets future lawyers will need are some of the challenges facing legal minds, writes Morry Bailes.

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With the Law Council of Australia’s eye firmly focused on technology and the future of the law, its Futures Committee has been re-booted to provide thought leadership to the legal profession and to consider the critical question of the future of legal services.

Meantime, the biggest digital evolution to impact the business community has just transpired, brought about by a germ, and not the germ of an idea. 

Many of the things that we had entertained as future technology  in the legal profession happened overnight; virtual meetings, online courts and paperless ‘everything’. However, the cupboard is far from bare when it comes to the many more challenges that confront us as a profession, and for that matter other professional service providers. Some are unique to the law, some are common across industries. 

The future of the law combines many and varied considerations, creating intersections with all manner of technological and practical issues. We are talking about a world of legal regulation and ethics, of risk and professional indemnity insurance, of legal education, access to justice, and what it is that legal consumers in the future will demand of our profession. A profession may I add, that is not known for its innovation and modernism, with monolithic international legal firms at one end, and at the other, sole practitioners including barristers. 

The challenge in any examination of the future of legal services is where to start.

Here are some of the issues that are likely to occupy the Law Council’s Futures Committee as we grapple with how to set the future course of one of the oldest but most important professions, while continuing to remain relevant to our clients. 

First, what should the makeup and skills of the future lawyer be? It is a deceptively easy question, at the heart of which may lie the answer to many of the questions we often pose of ourselves, such as how to provide access to justice and deliver just outcomes for as many people in our society as we are able. 

It is also a question that legal academics are beginning to answer, as we see centres of excellence popping up in some Australian law schools. 

To begin with, law often attracts those with an interest in the humanities, which is part of the problem in the shaping of our profession. We tend not to recruit legal graduates with skills as project managers, STEM and technology skills, or who come from backgrounds of innovation and entrepreneurship. What is more, law schools primarily teach law and not these accompanying skills, although that is changing. And arguably, while we are producing a graduate with a greater and broader skill set, are law firm recruiters or barristers who are encouraging lawyers to the bar looking for specialist skills that might take the profession in a quantum leap toward where we could be placed in terms of a brace of technology, or are still looking at what mark someone scored for Constitutional Law? 

If we are able to answer the question of what would be desirable to see in the future lawyer, we are a giant step closer to having law schools produce what the profession needs, and in turn a further step toward what the future legal profession should look like. In short, with the professions recent embracing of technology and the necessary responses from the courts, it is patently clear that this is our future and I can’t imagine us putting the genie back in the bottle. And why should we? But the profession, as a fully digitised deliverer of legal services, needs lawyers in the future that are a far cry from many of those currently practising. 

Laudable as the response of our courts has been to the delivery of justice in the COVID-19 age with effective online solutions and the creation of ‘the virtual court’, there arises a critical question of whether we have inadvertently said a temporary goodbye to open justice.

The concept of open justice is perhaps demonstrated by an example. When in China for work earlier last decade I met many Chinese lawyers, who would show you around, and often point out their courts, as we might do with our visitors. What was striking; however, was that we could never go in. They were not open to the public. A closed court system unless it is for a particular purpose—say the taking of the evidence from a victim of an alleged sexual crime—is an anathema to us here in Australia. The courts are open, and any citizen may enter at any time, just like our parliaments. Justice Gibbs of the High Court said in Russell v Russell that it is the ‘ordinary rule’ of courts of Australia that their proceedings shall be conducted ‘publicly and in open view’; without public scrutiny, ‘abuses may flourish undetected’. Gibbs J went on to say:

‘Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court.’

So, what has changed? Faced with the challenge of providing online platforms for courts to operate without requiring in-person attendances during the COVID-19 pandemic, our courts may have inadvertently transgressed the principle of open justice, because although litigants and their legal representatives may appear, members of the public have been excluded. Obviously the greater the level of lockdown, the greater the problem, such as in Victoria. 

In our imagined world of an increased digital justice system, we cannot allow ourselves to forget the fundamentals and leave the public and the community excluded.

Justice to be done, must also be seen to be done. 

This leads to a further consideration, as to whether whilst the greater use of technology in the delivery of legal services may be an answer to access to justice for some, might it also be an impediment to others?

The digital gap in Australia is not necessarily something that the legal profession or any office-based worker is going to give a great deal of consideration to. However, a digital gap does exist in Australia, and may be widening. There are groups of people within the community are more technology illiterate or disenfranchised than others. Those who are poor do not necessarily have the ICT equipment of others. The elderly can be digitally excluded, as can those in rural, regional, and particularly remote communities. In short, we are not all on a level playing field. 

Thus, by enhancing digital delivery and access to machine based legal products, and implementing online digital dispute mechanisms, we may have widened the gap between those who can and those who cannot use such services. 

That is not to say we should be doing anything other than using technology for the advancement of the provision of legal services and access to justice, but it does mean we need to be conscious of bringing everyone ‘along for the ride’ or at least as many as possible, failing which we may exacerbate the problem for some. 

Fourthly, if we are in the business of promoting technology based solutions to advance access to the law with the use of automated legal services and software and other online tools, how are these products to be successfully and adequately regulated and held to a proper standard that protects the consumer?

Unregulated legal services abound on the internet, and in most cases cannot be regulated. Providers are often outside the jurisdictions and control is impossible. If a consumer utilises such unregulated services, there may be little that can be done to protect them, other than warn them against the dangers of accessing legal services by the internet. It is analogous to over-reliance on ‘Dr Google’. 

But when the Australian legal profession utilises these software programmes and tools, they fall within our regulatory system, so how is that regulation to work? A simple challenge is version control. Cases are decided every day by our courts that change the law. Is the online product that you are relying on to obtain accurate online legal advice the version that was updated with the law as of today, or is it yesterday’s advice? Much can turn or fall on what is the current law, for example in the ever-changing area of tax. Indeed, every area of law changes constantly. Nothing ever stays the same. The regulatory challenges and how professional indemnity insurance will answer for these online tools is an emerging and difficult area that will require of us a great deal of thought. Acting prescriptively may not be the answer, but not acting at all is not an option.

The work of the Futures Committee of the Law Council will likely be constant and evolving, as we imagine and re-imagine the delivery of legal services to the client of tomorrow. It is as complex as any industry experiencing digital disruption, but further complicated by an inordinate array of regulation and coupled with a primary obligation to the administration of justice. It is no easy task, but if we do not seize the momentum, it will seize us.

Either way, the future has arrived for the law, and it’s now up to us as a profession to start to answer the questions that are with us today as well as to prepare for the questions unfolding in the years ahead.

Morry Bailes is Chair of the Law Council of Australia Futures Committee, Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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