Ethics worry with lawyers and lawtech firms “not speaking same language”

Greene: Ever greater reliance on technology

Solicitors are concerned that some new legal technology they buy does not take into account their professional rules and ethical duties because lawtech firms are “not speaking the same language”, a study by the Law Society has found.

It said some lawtech companies – such as start-ups or those without lawyers in their teams – “did not know of the existence” of the rules or the role of the Solicitors Regulation Authority (SRA), while others found it difficult to understand the procurement processes of law firms.

“This lack of awareness, particularly for medium and large firms, did not deter them from inviting companies to pitch or present to them. They applied their own expertise and analysis to consider the regulatory and ethical implications of the lawtech solution.”

Researchers said larger law firms responded by putting quality standards in place, or additional due diligence and risk assessments where products were developed by non-legal businesses.

“Some small and mid-size firms prefer not to try new lawtech products because of regulatory or ethical concerns. Although they can see merit in the products, they prefer to avoid risk by using tried-and-tested products or those used by other firms.

“Practitioners have been adaptable and have used peer-to-peer groups or informal networks to identify best practice and answers.”

The Law Society said it commissioned the study, based on 30 interviews with law firms of all sizes, to stimulate debate about the ethical implications of buying lawtech and find out whether ethical guidance or principles would help the design and procurement process.

Participants said a set of ethical guidelines would be useful in assessing whether lawtech products were compatible with their regulatory obligations, rather than relying on peer recommendations.

The society said it also wanted to find out whether standards would provide solicitors with “additional comfort” that they were complying with SRA rules.

All the participants agreed that the design, procurement and use of lawtech raised ethical questions or concerns.

Researchers said that to maintain their competitive edge, law firms were “more than ever” sharing resources and information with non-legal lawtech businesses but were struggling with “diverging standards and the challenge of cross-border data transfer”.

When solicitors worked with tech companies which provided unregulated services, such as advice on global regulatory issues or emerging markets, questions could be raised about client protection, confidentiality and legal professional privilege.

Further concerns were raised by the use of predictive analytics in litigation and whether it could be biased, based on a client’s race, age or gender, or in crime where lawtech could be used to assess the risk of committing a crime or being rehabilitated.

Meanwhile cloud-based tools “were identified by participants as a key concern for large firms, small firms and in-house teams”, with lawyers suggesting that they spent “a disproportionate amount of time” on cloud-related issues.

Firms also complained about having to accept complete liability if the product caused harm, an “inequality of arms”, where a law firm and unable to negotiate bespoke terms and unclear terms, warranties and guarantees

The Law Society has produced a Lawtech, ethics and the rule of law discussion paper, seeking views on the ethical concerns faced by law firms in designing or buying lawtech.

An expert group will examine the findings and a report with recommendations will be made shortly afterwards.

David Greene, incoming president of the Law Society, commented: “Behaving ethically is at the heart of what it means to be a solicitor, and, as we rely ever more on technology in our day-to-day business, this paper will seek views on whether lawtech principles will benefit the legal sector.”

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