Innovation and Regulation – Necessary Bedfellows

There is no buzzword in the legal sector right now louder than ‘Innovation’. The disruption caused by COVID has rapidly accelerated both the appetite and timescale for technological progress in the sector.  It has created the urgency for change which is so often required before people to move out of their comfort zone,  in particular lawyers.

Lawtech has been on the Law Society’s radar for a long time.  Their LawTech Adoption Report in February 2019 acknowledged its very real presence but concluded that it was ‘still nascent and less ‘disruptive’ than other types of technology’ and ‘less mature than other fields of digital disruption such as fintech where there is more funding and regulatory alignment.’

There can be no question that this assessment, made as it was in the heady pre-Covid days of February 2019, is no longer an accurate reflection of the position.

Even by early 2020 the Law Society’s further research in this area demonstrated the growing presence and adoption of Lawtech. It  also highlighted the concerns that existed in the profession, in particular;

• Potential bias embedded in the algorithms underpinning solutions (e.g. work allocation tools)
• Accessibility of Lawtech products (both in terms of users with disabilities, and smaller firms with smaller overhead spend)
• Data privacy issues
• Artificial intelligence black boxes (i.e. where some Lawtech developers are unable to provide detailed explanations of how the product works for commercial reasons) meaning difficulty in ensuring oversight and compliance.

Reflective of the current mood, the Law Society have this week launched a consultation  entitled  Lawtech, ethics and the rule of law: discussion paper.

This consultation invited legal professionals to provide their thoughts on the development of Lawtech principles (such as legal certainty, mutual understanding) to the legal sector, Lawtech developers and the UK jurisdiction.  They seek responses on whether the current SRA Standards and Regulations enable effective and compliant design and procurement of Lawtech and ask the sector whether there are any existing principles or standards in the UK or internationally which the UK should consider adopting.

They suggest that the principles should be co-created by lawyers, LawTech developers and stakeholders and cover the following areas;

1. Tackling reliability, accuracy and potential bias: a Human Rights Impact Assessment and Equalities Impact Assessment should be carried out during procurement or, if the firm is in-house, the assessment should be carried out at the development stage
2. Ensuring data privacy: a Data Protection Impact Assessment and a Privacy Assessment should be carried out for each LawTech product to ensure compliance
3. Verifying LawTech competence and capability: law firms should put in place a learning management system that covers the different types of LawTech product, making them a more discerning buyer, with an understanding of how to hold the solution accountable
4. Standardising procurement frameworks: to ensure that they are a cross-department task, ensuring compliance with data privacy, cyber security and client confidentiality when a cloud platform is used
5. Transparency and information: where possible law firms should inform the client about the use of legal technology, where relevant
6. Clarity: there must be a clear understanding of how a system has been designed and developed before it is procured and used

This call for clarity will be warmly welcomed.  If the ‘tipping point’ that Alison Hook spoke about in her 2019 Report (LSB: The Use and Regulation of Technology in the Legal Sector Beyond England and Wales) had been reached then, it is fair to say that it has now well and truly been pushed over the edge. 

If lawyers and law firms are to keep up with new business models and innovative offerings, and if exciting and inventive start-ups are to thrive, there needs to be commonly understood guidance. There also needs to be better dialogue between tech businesses who are active in this sector and the lawyers implementing and using their product on how the two can work together to uphold public confidence. 

Regulation does not have to be stifling. In fact, innovation and regulation are necessary bedfellows.  If a regulatory regime is based on common societal values, is flexible, well informed and market led, it will encourage those in this space to continue to push the boundaries.  Well publicised regulation leads to increased consumer buy-in as public confidence is upheld.

If there is a second buzz word of 2020 it is ‘collaboration’.  If we want to do more than pay lip service to this word, lawyers and technologists need to really start to understand the ways in which their own respective input results in the best output for clients.  Historically lawyers have often operated in silos, leaving tech to their IT department, and leaving process improvement to their support functions.  It is perhaps why it has lagged behind Fintech so markedly. 

We would therefore hope that in due course the Law Society also seek the views of those outside the profession when it comes to what the principles and standards should include and have as their focus.    The goal should undoubtedly be to allow disruption and innovation, at the same time as protecting the public and upholding public confidence.  No mean feat but achievable with open dialogue and, dare we say it, ‘collaboration’.

ABOUT THE AUTHOR

Sarah is a partner in the Regulatory Team. She works with a number of clients across sectors to provide legal and process advice, to include the most effective harnessing of technology in the Legal Sector.  She is Lean Six Sigma (Green Belt) qualified.

Jessica is a senior associate in the Regulatory Team, specialising in legal services regulation, with a focus on regulatory compliance, legal ethics, investigations and public law matters.