This is the second part of a report on the 2019 FLIP Conference. Read Part I here.
Technology and Lawyers’ Duties
In Professor Kowalskiâs keynote, he asked whether the future will include negligence claims because of errors caused by not using technology. In one case in Canada, costs were capped because the judge determined that artificial intelligence should have been used to reduce counselâs preparation time (see this Law Times article for more information). Not only has technology enabled the streamlining and automation of legal tasks and processes, the use of legal technology is becoming an expectation and a requirement.
In a later session, âThe implications of technology on lawyersâ professional dutiesâ, a related question arose as to whether a lawyer in Australia may be in breach of the Solicitors Conduct Rules, e.g. the duty to deliver legal services competently, by not using technology. We hear that the Law Society of NSW Legal Technology Committee has put forward recommendations for amendments to the Solicitorâs Conduct Rules with respect to staying up to date with changes in law, including technology.
In the US, 36 states have adopted an amendment to the ABA Model Rules of Professional Conduct to include a requirement with respect to technology competence:
âTo maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.â
Legal Education and New Skill Sets
According to Professor Kowalski, law schools will need to create more value for students and use technology to improve teaching and learning.
Another session considered the topic âThriving as a legal professional of today, tomorrow and beyond: necessary skill sets and knowledgeâ. The panel included Professor Kowalski, Peter Dombkins (Adjunct Associate Professor, Gilbert + Tobin), Justin Mcnamara (People Excellence) and Shoshana Shields (Director of Legal, Google Australia and New Zealand).
The discussion considered what employers look for in new lawyers, to which one response was âeverything but the lawâ, meaning that a âdeep verticalâ of legal knowledge is not enough. The concepts of the T-shaped lawyer and the more recent Delta Model illustrate the types of competencies that are necessary in addition to discipline knowledge. Examples discussed included the ability to thrive in ambiguity, numerical literacy and the ability to understand data, emotional intelligence and relationship management. There are differing views in the panel discussion about whether lawyers need to know how to code and it was suggested that a basic level of coding will enable lawyers to understand and communicate with programmers and other technical experts.
A question asked in âThe Reality of Artificial Intelligenceâ session was: Should the government be doing more to regulate AI? In response, a need to protect against the erosion of evaluative judgement was raised. Evaluative judgement ââŚencapsulates the ongoing interactions between the individual, their fellow students or practitioners, and standards of performance required for effective and reflexive practice.â[1] It is a core professional competency, which can be developed in higher education through activities such as peer and self-review, reflection and feedback.
A student in the audience asked for advice about how to future-proof her career. In Professor Susskindâs closing remarks, he referred to a well-known quote by Alan Kay: âThe best way to predict the future is to invent itâ. How can law schools help our students to better prepare for inventing their future?
[1] Tai, J., Ajjawi, R., Boud, D., Dawson, P., Panadero, E. (2018). Developing evaluative judgement: enabling students to make decisions about the quality of work. Higher Education, 76(3), 467-481. https://doi-org.virtual.anu.edu.au/10.1007/s10734-017-0220-3