By Dr Felicity Bell and Justine Rogers -
Snapshot
- Non-lawyer professionals such as coders and software engineers are becoming involved in legal service delivery with potential implications for clients, the legal profession and the justice system.
- This trend challenges regulatory controls which are already part of a complicated and attenuated regulatory landscape.
- This article describes the current redress mechanisms for consumers of LegalTech and offers three possible avenues for their regulation.
Increasingly, non-lawyer professionals – such as coders and software engineers, entrepreneurs, industry experts and non-practising lawyers – are becoming involved in the delivery of legal services. Should these professionals be regulated? If so, how?
Non-lawyers might offer services to lawyers or direct to the public. There are implications for clients, the public, the legal profession and the justice system.
Before we look further into these issues, who are these newcomers and what is their relationship to law?
Who is involved in LegalTech?
Identification of the ‘non-lawyers’ founding and/or running LegalTech companies and building their products is difficult due to a lack of clear data. In a 2019 survey by the consultant company AlphaCreates, they found that of 111 Australian LegalTech enterprises, just over half were founded by one person and nearly 30 percent by two people. These founders, as well as their employees and contractors, are a mix of software developers, scientists, industry experts and entrepreneurs (sometimes former or current practising lawyers). Thomson Reuters reported in 2017 that 45 percent of UK LawTech start-up CEOs were former lawyers.
Yet, the products and services LegalTech offers are ‘built in software’ through the expertise of coders and knowledge engineers who typically do not have law degrees, let alone legal practice experience. The extent of lawyer involvement in their development may be minimal.
In Australia, AlphaCreates reported that 83 percent of LegalTech founders came from within the legal services industry. This is relevant because, for now, most LegalTech leaders have legal qualifications and potential practice experience, and thus an understanding of law and the profession’s values and obligations. Why is this important? Law is a highly regulated profession. Writers have said that legal professional regulation has three essential public service functions: 1. protecting consumers in the face of information asymmetries; 2. ensuring the integrity of our legal systems; and 3. ensuring universal access to legal services. In return for being regulated, the state has historically granted to the legal profession some form of, more or less limited, monopoly over legal work wherein certain kinds of work are ‘reserved’ to it exclusively. In Australia and North America, non-lawyers can provide legal information but not legal advice. Non-lawyer individuals or companies who develop software and offer it as legal services technically risk prosecution for unauthorised legal practice, which is a criminal offence.
