A Tipping Point: Across Four Pillars (Pt.2)
Part 2: The Regulators
And another week goes by!
Hopefully now there is a sizable contingent of lawyers globally that have come to terms with:
The ongoing nature and implications of this crisis as it impacts “business as usual”, and;
That their solutions for remote work (if any) are clunky and it has as much to do with people’s behaviours as it does the tech (although there is much to be said about a poorly integrated implementation).
(Shout out to all those who think they’ve done Gods work by showing their boss that Zoom exists 🤣)
This week I wanted to continue sharing my thoughts on what is happening with the current crisis, what I feel is worth considering in these circumstances and how it carves a path to the #futureoflaw.
This is of course, within the context and scope that FutureLab.Legal approaches the Global Legal Industry to learn and solve. If you recall from last week, the Four Pillars were: The Market, The Institutions, The Regulators and LegalTech. This week, we look at…
The Regulators
Currently, the most stand out issues for Regulators shine from the Courts around the world and their challenge to seamlessly transition to Digital Court Systems (whether they had them available/setup or not) in order to continue the carriage of Justice. How Barristers can represent clients and liaise with solicitors, how Judges can follow and pass down decisions and Obiter Dicta on cases and how people whose cases are being tried can feel like they’ve had their “day in Court”.
Attention will now also be focused on challenges where Bar Associations, Law Societies and other Regulators who traditionally stand as the last bastion of change in a jurisdiction, are faced with being the ones to take a leadership role (ironically) and make allowances for temporary (and reconsidered long-term) “sandbox” arrangements. Where the traditional (largely paper and physical) systems cannot sustain the work in the current circumstances, it provides an opportunity for Regulators to assess the underlying systemic issues that now manifest as the legal system is strained by COVID.
It’s important to mention that this call to stewardship overlaps with Governments as most current emergency changes in the amended law are stemming from responding to economic crisis (which has been exacerbated by the current COVID crisis). Some of these laws do involve allowing for digital signatures, relaxing insolvency and employment frameworks, moratoriums on tenancy contracts etc. which show how interlinked Governments and more Legal Industry focused Regulators are. It also shows how many different ways we can approach change from a regulatory perspective (which makes it more frustrating to see that Lawyers, representing the Profession through Bar Associations and Societies seem to hold a string which is only capable of pulling us back).
So, between Courts, Governments and Law Societies/Bar Associations there is a dynamic and nuanced interaction. It is obvious that each have their own roots, processes and motivations. The challenge now lies in how they respond in light of recent circumstances.
The Regulators Role
There are heavy implications for The Regulators and their frameworks to allow for change, and these are inherently linked to The Market, The Institutions and LegalTech’s ability to move forward.
I have highlighted the “pace of change” of our industry since I started FutureLab.Legal a few years ago. The message to firms and legal practices about being out-paced and out-priced in a matter of years is one that was not made in isolation. Certainly a key driver and expectation is The Market pushing the industry forward by changing their business models and approaches to Legal Services. But in “true-to-Q” fashion, the answers are found in the gaps between the stakeholders.
So, The Market has its own sphere of influence in being the front line of Legal Service delivery: tinkering and improving their services, driven by their bottom line which is inseparably linked to their client’s expectations. Still, the reigns are held by The Regulators in terms of initial and ongoing qualification requirements, and limits on how legal services can be delivered.
The Institutions are bound to a large extent to deliver their educative programs that train lawyers according to the dictates of the qualification requirements (aside from standard conferral of degree requirements) of The Regulators. No matter the passion and drive behind a law school and their attempts to re-staff and pursue a forward-facing curriculum, they are ultimately constrained by the uniform requirements of the jurisdictions and their regulations that dictate how “lawyers are made”.
There are also restrictions to what LegalTech companies can do in their efforts to push the industry forward. In certain jurisdictions and certain applications of LegalTech (particularly AI), applications to even consider a “sandbox” regulatory environment have been denied.
The Regulators: COVID Implications
So, when we consider The Regulators in the current COVID crisis, there is an opportunity for systemic change. So many Lawyers, Universities and LegalTech founders are bound by “the rules of the playground”. In times such as these where fundamental change in behaviours are forced, it is the duty of The Regulators to recognise the changing circumstances and take the opportunity - where previously there was inertia and an emphasis on maintaining the “status quo” - to contemplate and reflect on what changes are required across the short, mid and long term and to take action.
No longer can the Law and its practice be a timeless tradition across all its features and manifestations. As far as first principles are concerned, most of it will remain unchanged - the Law is still the mechanism by which civil society endures, a covenant for people to co-exist, the four walls of the Garden that guard you from Chaos outside.
The chief consideration for Regulators then, is to: recognise the cracks that COVID presents in the system, and to duly pursue the systemic changes that are required with the future (not just the past) in mind.
As for that #futureoflaw, the Regulators relevance and existence depends on their ability to be more than the string that pulls us back. A pro-active view - incorporating abundance rather than pure risk-aversion - will generate trust and confidence in those that have the privilege to represent the collective lawyers within the broader system, better aligning them with the essence of practicing law: to help everyone (and ourselves) in a just society.
Curiously, LegalTech is the main driver for inter and cross-jurisdictional platforms and organisations forming (some of which FutureLab.Legal is more directly involved with) that will place a question on the efficacy or need of Regulators within a single jurisdiction in this rapidly changing environment. It is within reason to contemplate that the relevance of a Law Society or Bar Association will be questioned when the traditional qualifications and allowances to practice law are not tempered against the modernity, efficiency and global way it is increasingly being delivered.
There are other factors worth mentioning and it is important for me to acknowledge the scale of complexity when addressing this within a diverse system that exists globally, but this can only be so long! I hope this gives you some insight into the implications of COVID on The Regulators and the opportunity that exists in this disruptive environment 🤓
Next Week and House Keeping
Next week we will explore the implications that COVID has placed on The Institutions - a juicy topic and one that again places incredible strain on the “way its always been” for Universities.
If you’re enjoying this series and the Lab in general, I’d love for you to share it on Linkedin/Twitter/other platforms with your friends and colleagues using the button below:
If you’d like to work with me directly across any of these four pillars - feel free to reach out on my website or email me direct.
Also, I’m thinking about releasing some of my work on IP frameworks on the #futureoflaw through the paid subscription tier in parallel to the free tier in the Lab. Write “IP” in the comments section below or let me know via email if you’re interested in that and I’ll add you to the beta list!
As always, the future of law is in our hands 🔥
Q.
Photo by Aditya Joshi on Unsplash