Rachel Cairnes, policy and public affairs adviser at the Association of Consumer Support Organisations (ACSO), responded to the Law Society discussion paper on 'LawTech, ethics and the rule of law'.
Cairnes highlighted ACSO's ongoing work on technology and innovation, including a report on Technology and Innovation within the legal sector which is due to be published shortly. The aim of the report is to understand better how technology and innovation, or 'LawTech', is changing the way legal services are being sought, structured and delivered. A number of ACSO's findings from the report relate directly to the questions posed in the discussion paper and were used to inform the response.
"Traditionally, regulators have been too reactive in their approach to LawTech, providing guidance and looking to alter the regulatory framework when a problem arises, as opposed to anticipating issues and leading the sector. A reactive approach creates uncertainty around LawTech products and halts the provision of more efficient, cheaper services to consumers".
It was noted that the SRA alongside other regulators have recently demonstrated a more active commitment to research and evidence gathering on the issues related to LawTech and its adoption. "This focus on LawTech is both welcome and timely, not least as the outbreak of coronavirus and the measures put in place to mitigate its spread have accelerated the use of technology within the sector."
Cairnes argued that the development of soft law principles, such as codes of conduct, guidelines and roadmaps, would provide benefits to the legal services sector, LawTech developers and the UK jurisdiction. "Soft law principles should be regularly reviewed in order to keep pace with technological developments and to ensure they provide the sector with enough flexibility to develop and adopt new innovations."
LawTech principles or standards should focus on how best legal service providers and LawTech innovators can support vulnerable consumers. "Consumer vulnerabilities must be carefully considered within the context of LawTech. Should the entry point of a firm be technology based, it may fail to detect a consumer's vulnerabilities and direct them on a digital journey that could cause detriment to their case and to their personal wellbeing. When developing LawTech principles, the consideration of vulnerable consumers must be a priority."
Other concerns regarding the development of LawTech included bias or inaccurate data, the potential for fraud and breaches of data protection laws (namely GDPR). "LawTech principles should be designed to address these issues in an effective and appropriate manner."
In regard to the Solicitors Regulation Authority's (SRA) Standards and Regulations (Stars), Cairnes noted the SRA's conclusion from the Legal Access Challenge: "there is a risk that the SRA will become complacent in its belief that its regulatory framework is not an obstacle to developing LawTech, despite the fact that disruptive technologies continue to change the landscape of the legal services sector. It is essential that the SRA regularly reflects upon its own regulatory processes to ensure it is enabling effective consumer protection alongside the design and procurement of LawTech. Engagement between law firms, consumer bodies and other regulators should be encouraged as a means to gain valuable insights from across the market that allow the SRA to adapt its regulatory approach as necessary."
"Technology and innovation present many potential benefits for consumers and legal service providers, including greater access to justice, and increase in affordability of services and more efficient processes. However, LawTech, whilst rapidly developing, remains nascent. For this reason, engagement and cooperation across the justice system and other relevant markets is required to ensure effective consumer safeguards are in place."
ACSO members can read the submission in full on the Members' Area of the ACSO website.