Distributed legal work
Trace invites Graeme Johnston of Juralio to share his thoughts on ‘Distributed legal work: privacy and openness’ and the impacts of a global pandemic
Article
It appears at least possible that one of the lasting effects of the 2020 COVID-19 pandemic will be to catalyse the trend towards enabling legal services professionals to do more of their work away from physical hubs such as offices and courts.
In this context, two fundamental elements of the rule of law raise issues of openness and privacy
One element is that the law should be publicly available. This requires not just the publication of formal legal rules and powers, but also that there should be meaningful public access to how these rules and powers are interpreted and applied in reality by the courts and other organs of state. In practice, this latter point is limited by the fact that it is very cumbersome to extract information from legal materials and even more so to attend legal hearings.
The other element is that the privacy of legal advice must be protected so that such advice can be confidently obtained and candidly given. Otherwise, citizens cannot practically find out where they stand legally and the rule of law is diminished. In common law countries, this idea is given effect under the jargon of ‘privilege’ whereas in other countries the more straightforward term is often ‘professional secrecy.’
Properly balancing these notions of openness and privacy is therefore important if the rule of law is to have any real meaning.
I’ll now discuss two particular challenges within these areas.
Court hearings using video technology: how ‘open’ should they be?
One such challenge relates to court hearings. The starting point is to recognise two established realities.
One is that, since the nineteenth century, technologies such as printing, typing and word-processing have persistently increased the reliance on written materials in court proceedings.
The second reality is that oral hearings still command great importance in court processes. Typically, this is greater in common law countries but it’s not confined to them. It is also widely recognised that most such exchanges ought usually to occur in public in the absence of some special reason. However, the theory of open access has in practice been limited by the need to attend in a court room at the relevant time or, in some systems, by the ability to pay for a written transcript.
The recent widespread adoption of video call technology to handle court hearings raises really important and difficult questions as to how to handle the resulting video records. Should they be live-streamed? Should they be recorded? Should they be made available for NLP and other analysis in ways that may over the coming decades make clear that the likes of Lex Machina and Solomonic were just the beginning?
If openness is reduced compared with the current realities, what will be lost in rule of law? If openness is increased, how will litigants react (e.g. more arbitration, more claims designed to cause public pressure rather than to advance a legal case). What will the observer effects be on lawyer conduct? What are the implications for lawyer development?
And if private companies are permitted to analyse such hearings and sell the results, should we be worried about the possibility of the litigation process being tilted even further in favour of the wealthy? Or is that an absurd thing to take into account given that the legal playing field has never been level anyway? Alternatively, should the data just be made open on the basis that this gives the best chance of businesses emerging which can make use of it to create a less unequal playing field?
These are difficult, subtle and complex issues. They require a proper debate, involving more than the usual suspects (judges, lawyers, media and technologists).
Privacy / confidentiality
A second challenge relates to meeting the expectation of clients that their private affairs will be kept confidential by their lawyers.
Even today, this is not always observed, as anyone will know who has heard lawyers chatting about clients and cases to each other in trains and restaurants, or seen them working on sensitive material on laptops which can be easily read or photographed by someone nearby. And that’s before one even gets to the less visible issues of information security.
I don’t think these concerns should be a blocker to more distributed ways of working. Indeed, quite the opposite: removing train commutes from many lawyers’ daily lives would in reality enhance protection of client confidentiality.
I think the future is likely to involve more lawyers working more often from co-working spaces.
Lawyers will ideally be trained in practical ways to protect information. And providers of working space targeted at lawyers who consider these issues properly may find a solid opportunity. Suffice it to say, in my view, the typical co-working space of today, with inadequate numbers of badly soundproofed call rooms, isn’t going to cut it.
In conclusion
These thoughts are deliberately inconclusive. The point is that the move to more distributed forms of working in law raises some important issues in this area, some real risks, but also perhaps an opportunity to improve the rule of law (as well as legal services!) if approached thoughtfully.
This article was written by Graeme Johnston
About the author: Graeme is a former lawyer and CEO of Juralio, a law tech company based in Scotland. A longer version of this article is available on Medium.
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