Is LegalTech “Fit and Proper”?

Is LegalTech “Fit and Proper”?

Increasingly, there is awareness that new technology, especially artificial intelligence, is changing the practice of law in profound ways.

In two presentations, FLIP Stream’s Deputy Director Justine Rogers and Research Fellow Felicity Bell considered the effects of “LegalTech” on lawyers’ professionalism and ethics – firstly, as more and more non-lawyers become involved in the creation of legal products, and secondly for lawyers’ own professional identities as LegalTech continues to develop.

At the eighth International Legal Ethics Conference, recently held at the University of Melbourne Law School, Dr Rogers and Dr Bell presented on the impact of a widening range of non-lawyer professionals – such as coders, knowledge engineers and software developers – becoming involved in legal service delivery. The provision of legal services by non-lawyers is significant because all lawyers who wish to practise law must satisfy a “fit and proper” test at entry. After admission, this good character requirement is ongoing, and central to the test of professional misconduct and disciplinary sanction. Non-lawyers, meanwhile, are not subject to this requirement or to any conduct or practice rules. Also, there is no standardised means of quality control either of those involved in the creation of LegalTech or of products themselves, other than after-the-fact general consumer law principles. Accordingly, Dr Rogers and Dr Bell examined the desirability and feasibility of extending legal professional regulation to these actors.

How do professionals maintain their identities in a world where elements of their work can be undertaken, sometimes to a higher standard, by machines? Dr Bell and Dr Rogers investigated this question in the context of law and legal practice. In a paper presented at the Law and Society Association of Australia and New Zealand conference at the University of Wollongong Law School, they discussed the impact of artificial intelligence on lawyers’ professionalism.

Noting the strains already operating on the profession, Dr Bell and Dr Rogers looked at whether the injection of AI into legal practice is straining lawyers’ capacity and resolve to pursue high levels of professionalism – or ethicality and competence – for the benefit of the administration of justice, the client, and the wider public. They then turned to how regulators can support and motivate ethical behaviour in lawyers, in the face of this technological change, first looking at how lawyers’ use of AI is currently regulated, and then considering what a more active form of professional regulation would look like.