FLIP Conference 2019 – Part II

This is the second part of a report on the 2019 FLIP Conference. Read Part I here.

 

Finger pointing to technology apps

Technology and Lawyers’ Duties

In Professor Kowalski’s 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 counsel’s 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, ‘The implications of technology on lawyers’ professional duties’, 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 Solicitor’s 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:

“To 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.”

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 ‘Thriving as a legal professional of today, tomorrow and beyond: necessary skill sets and knowledge’. 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 “everything but the law”, meaning that a “deep vertical” 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 ‘The Reality of Artificial Intelligence’ 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 “…encapsulates the ongoing interactions between the individual, their fellow students or practitioners, and standards of performance required for effective and reflexive practice.”[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 Susskind’s closing remarks, he referred to a well-known quote by Alan Kay: “The best way to predict the future is to invent it”. 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

 

FLIP Conference 2019 – Part I

People at conference

 

The Future of Law and Innovation in the Profession Conference on 25 July in Sydney brought together lawyers, academics, students, legal technology organisations, professional and regulatory organisations and members of the judiciary to discuss current and future developments in legal technology and legal services.

What does the Future Hold?

In his opening keynote, Professor Mitch Kowalski from the University of Calgary Law School encouraged attendees to look at the macro environment when considering the future (see the Deloitte report Beyond the Noise, The Megatrends of Tomorrow’s Word). There is no doubt that technology will continue to have a transformative impact on legal services and legal careers, but this is just one factor. Professor Kowalski discussed the impact of new generations progressing through the workforce, stating that “by 2025, 75% of the global workforce will be millennials”. He spoke of changes in ways of working as millennials prioritise flexible work arrangements, work-life harmony (instead of work-life balance), and follow non-linear career paths compared to previous generations.

In a later session, Professor Richard Susskind OBE predicts that there will be more change in legal services in the next two decades than we have seen in the past two centuries. To paraphrase the title of Professor Kowalski’s keynote; will lawyering in 2050 consist of robots in suits? Not quite, don’t panic! However, Professor Susskind says that “tomorrow’s lawyers” are “the ones who are developing systems that solve problems that today can only be solved by a lawyer”.

Using an example of a power tool company, Professor Susskind explained that what the company’s customers need is a hole rather than a drill and asks – what is the legal services ‘hole’? Clients are not seeking lawyers but rather the outcomes that lawyers bring. Professor Kowalski used the example of Blockbuster to illustrate this point; people still watch movies but don’t want to go to the store to get them. Similarly, legal services will continue to be required but in a different way.

Professor Kowalski envisages a future in which solo practitioners and small firms will “punch above their weight” because technology resolves issues including location and people. Some organisations are now using non-lawyers to work with legal technology and handing off higher value work to lawyers, to lower costs.

Professor Susskind discussed some parallel developments that he expects will continue for some time. One involves the automation of tasks using technology and the other involves transformation and replacement of traditional ways of working. He says that most professions are moving beyond the technology automation stage but it is still early days for many law firms. However, the pace of change is accelerating.

A multitude of new legal technology and services providers are emerging (LawGeex 2018 Legal AI Landscape). Big4 professional services firms are focusing on legal services. There are over 2000 legal tech start-ups in the world today. How evolved are these technologies? The Gartner Hype Cycle for Emerging Technologies (2018) forecasts that many emerging technologies have 5-10 or more years to develop before reaching the ‘Plateau of Productivity’ phase.

What is actually happening in practice? Speakers gave examples of rules based systems being used successfully in law firms, e.g. document drafting and automation systems that provide robust first draft documents. Another example given was the use of AI in discovery, using conceptual clustering for large document sets to identify concepts. Predictive coding cuts down document review time. An algorithm uses existing document review data and compares it against documents not yet reviewed in order to bring documents identified as most relevant to start of the queue.

Professor Susskind expects that much of the work of the courts will move online. To use an example from Professor Kowalski’s keynote, in British Columbia in Canada, the Civil Resolution Tribunal is completely online and there are no lawyers involved.

Indicative of the rate of change and need for support and education about legal technology within the profession is the Law Society of NSW’s choice of InnovateLaw 2019 Hackathon challenge. The challenge was to design a technology solution to assist legal professionals to navigate and implement from the legal technologies available in the marketplace. ANU’s team won this challenge with their LawTech Connect solution!

Risk, Trust and Ethics

‘The Reality of Artificial Intelligence’ session panel was comprised of Caryn Sandler (Gilbert + Tobin, Commissioner Samantha Gavel (Information and Privacy Commission NSW), Aurelie Jacquet (Standards Australia Artificial Intelligence Committee) and The Honourable Justice Melissa Perry (Federal Court of Australia).

The panel discussed some of the risks and ethical issues associated with AI. AI requires a significant amount of data, which elevates risks of data breach and attacks. Issues arise when secondary uses of data occur without consent and a combination of de-identified data sets could potentially re-identify an individual.

Three key problems with AI were highlighted:

  1. The human problem – who should ‘teach’ the AI?
  2. The technology problem – AI magnifies bias
  3. The legal problem – who is accountable?

Laws to regulate AI do not currently exist. To address issues around trust, ethical frameworks are being developed, such as the one created by CSIRO Artificial Intelligence: Australia’s Ethics Framework (A Discussion Paper).

 

Continued in Part II