ILEC 2014, session 1

by Paul Maharg on 11/07/2014

I’m at the ILEC 2014 at City U., London.  Just arrived, and at the first parallel session, choosing ‘The effect of technology on the regulation of lawyers in the US’.  John O. McGinnis & Russell Pearce on ‘The coming disruption of law: machine intelligence and lawyers – diminishing monopoly rules’.  ABA has made minor changes in the Model Rules to accommodate machine intelligence, and to enable lawyers to employ or retain non-lawyers working in digital industries, eg document management vendors, etc.  Are lawyers competent to ensure that they perform competently — the standard is ‘reasonable supervision’.  What about non-lawyer delivery of services direct to the public.  Some say the unauthorised practice rules inhibit practice here.  His point — that in the long run, the role of machine intelligence in providing legal services will speed the erosion of lawyers’ monopoly on delivering legal services, and will advantage consumers and society by making legal services more transparent and affordable (from abstract).  I know what he means, but it’s kind of a debatable point, at the very least, that services will be more affordable & transparent.  Eg use of digital by financial industries?  Their role in the Great Recession, ably assisted by blinding technology?

Benjamin Barton next, The American Lawyer’s Monopoly – what goes and what stays the same in a changing market.  Arguing for broad de-regulation of the market.  Prediction for 2023: lawyer regulation will stay the same, lawyers will hunker down in the face of winnowing change, and will decline.  Informally, there will be great change — combos of computerisation, outsourcing and non lawyer practices will reshape the market for legal services so that the individualised, hourly work done for clients to a market of cheaper commoditised products, and this will accelerate over time — see Legal Zoom, Rocket Lawyer.  He observed the huge discrepancy between use of technology in corporate firms (largely untouched by regulation), and solo practitioners (heavily affected by regulation, and by Legal Zoom etc).  Why so, re regulation?  Because Legal Zoom has crept into the mid-level and lower-level of lawyers offering general services, and this wasn’t a single even but a relatively slow and yet unlooked for development.  Also, Bar Assoc, Supreme Cts etc are conservative, hang onto prior practice — the regulatory equivalent, he said, of Kodak.

Finally, Dana Remus on ‘The dangers of deregulation’.  Tech is neither value-neutral nor an unqualified good.  We need to consider the impact of technology, both direct and indirect, before we can fully understand and evaluate any proposal for relaxation of the profession’s ethics rules.  In fact, she argues that further deregulation will entrench the existing wealth & power disparities between rich clients & poorer clients.

Some general points, general fears expressed at question time.  Interesting query regarding the status of practical wisdom vis-a-vis machine intelligence.  The pros & cons were flung to & fro.  It reminded me of a seminar I attended at a conference in Delft TU, years ago.  A group of academics & developers had been funded by the Dutch government to produce an application that used a Second Life-type environment, with avatars, to teach military medics the basics of battlefield triage.  It was impressive: if I remember aright, the prone bodies, in uniform, had a number of wounds, looked awful, pale, or crying out.  The doctor avatar could bend down, touch the body and on a transparent window would appear the wounded soldier’s vital signs as a list that could be further cascaded.  The key question was of course which wounded persons were most in need of immediate treatment, so as to begin the sorting process so essential to triage.  The military medics (and indeed other doctors) present objected strongly to the approach of the developers.  They said it was teaching doctors the wrong processes of diagnosis; and in any case the whole process of information display switched the user-learner immediately into reflective mode.

One of them, I remember, said that the process of medical diagnosis was not like the protocols that pilots run through whenever they perform important functions in the cockpit.  By which I understood that the process of judgement was more sophisticated than that represented by the applications developers.  In effect it was a version of the Patel & Kaufman debates on backward and forward thinking developed by some forms of legal soz, medical education, but not others (actually, do the same arguments apply precisely to legal interviews?).[1]

The point being argued to and fro was fascinating, and strong feelings were expressed on both sides. But there is one similarity between triage and pilots, and it was brought home to me when I read the background literature on the ditching of US Airways flight 1549 into the Hudson.  While Capt Sullenberger took control of the aircraft after the bird strike and complete power loss, First Officer Skiles made his way as fast as he could through three pages of emergency procedures normally carried out at around 30,000 feet, not 3,000 feet.  Time and tempo is essential to the decision-making in both triage and pilotage.  It’s also an element in legal practice.  As I pointed out in Transforming, tempo is seldom something we consider in education for transactions; and yet surely it contributes to failures in transactional detail, and in ethical actions on client files.

  1. [1]See, eg, Patel, V. and Kaufman, D.R. (2000).  Clinical reasoning and biomedical knowledge: implications for teaching, in J. Higgs and M. Jones (eds) Clinical Reasoning in the Health Professions (London, Butterworth Heinemann).

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