The lawyer of the future?
Lawyers of the future could face pressure to augment their “cognitive capacity” through neurotechnology if they want to become partners or meet client demands, a report for the Law Society has speculated.
The report [1] predicted that future clients might prefer “cognitively enhanced lawyers” who worked on their matters only when “fully attentive” and billed by “units of attention” instead of billable hours.
Neurotechnology interacts directly with the brain or wider nervous system by monitoring and recording neural activity or taking action to influence it. It could be implanted in the brain or take the form of a headset, wristband or helmet.
In his report for the society, Neurotechnology, law and the legal profession, Dr Allan McCay, deputy director of the Sydney Institute of Criminology, said: “If it were possible to augment one’s cognitive capacity in order proceed more quickly and effectively through legal work, and make partner more quickly, some might be minded to opt for an upgrade.
“This might be particularly so if one’s colleagues were augmenting their capacities, or one was on the receiving end of pressure from clients to work more efficiently.”
Since some neurotech devices “purport to give indications of when workers are attentive”, it might be negligent for lawyers to “continue with important legal work that requires attention to detail when a piece of neurotechnology has warned you that you are not at your best”.
Dr McCay went on: “Perhaps the day might come when some clients prefer cognitively enhanced lawyers who only work on their matters when they are fully attentive.
“In light of the development of attention-monitoring neurotechnologies, the billable hours metric might become too crude for some clients who might prefer to pay for ‘billable units of attention’.”
Dr McCay said the shift to ‘billable attention’ would involve the “gathering of lawyers’ brain data”, which could be reused for other purposes, while the “mental privacy dimension of a firm’s brain-monitoring system” seemed “unsettling to say the least”.
Dr McCay said neurotechnologies were “likely to bring challenges” in many areas of law.
“To take criminal law as an example, one might ask what conduct constitutes the actus reus (criminal act) where a person injures another by controlling a drone or other system by thought alone.
“Moving to sentencing, would it be acceptable for criminal justice systems to monitor and perhaps even intervene on offenders’ brains by way of neurotechnological device whilst they are serving sentences in the community?”
Dr McCay said there was an “important debate” as to whether existing human rights protections were fit for purpose given the possibility of brain-monitoring and manipulation.
Meanwhile, legal educators “might start to face new questions relating to equity and academic integrity”, for example over what kinds of neurotechnological assistance should be allowed during assessments.
“What if some students have access to performance-enhancing neurotechnologies and others do not?”
Dr McCay added: “This tech is coming, and we need to think about regulation. Action is needed now as there are significant neurotech investors such as Elon Musk and Meta (Facebook).
“We need law reform bodies, policy makers and academics to be scrutinising these technological advances rather than waiting for problems to emerge.”
I Stephanie Boyce, president of the Law Society, said the report set out some of the “many opportunities” that could arise from neurotech.
“It also sets out some of the challenges that lawyers may need to grapple with now and in the future. As the report makes clear, neurotechnology could greatly improve the lives of many but also facilitate ethical failures and even human rights abuses.”
The Law Society has been considering how the changing world may impact the profession through its Future Worlds 2050 project.
A “disruptive” vision of the profession in 2050 published last year envisaged more than half of legal services workers in the UK losing their jobs and those that remain forced to take “performance-enhancing medication” [2], while a separate report predicted that helping clients cope with the repercussions of climate change could transform the profession [3].