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Academic seconded to Dáil to probe the ethics of lawtech
Pic: Shutterstock

28 Oct 2020 / technology Print

Academic seconded to Dáil to probe lawtech ethics

An NUI Galway academic has been funded for research into how information technology is enabling new approaches to legal practice and the work of courts.

Dr Rónán Kennedy of the School of Law has received a funding award of €26,460.

He will be hosted by the Oireachtas research and library services for his research project, ‘Algorithms, big data and artificial intelligence in the Irish legal services market’.

Innovation

The study will examine how Irish law should respond to the rapid innovation that is now taking place.

Artificial intelligence (AI) reduces legal costs and enables better-quality legal advice, but may lead to smaller firms being left behind.

The study will also examine the use of AI in judicial decision-making (as already happens in other countries) and how this could take control away from judges and strengthen existing social biases and prejudices.

Dr Kennedy said “This fellowship provides an opportunity to see how the Oireachtas works, and how legislation is written.

“It will give the Oireachtas a better understanding of the social implications of innovations in science and technology, and will help academics working in those fields to communicate their research in a way that helps legislators develop better policy for very important topics.”

The SFI Public Service Fellowship programme allows academic researchers to be seconded to Government departments, agencies and the library and research service of the Oireachtas, to work on specific collaborative research projects.

The funding has the goal of fostering innovation within the public sector through data-driven and evidence-based policy approaches.

Lawtech in Ireland

Dr Kennedy told Gazette.ie that the economic, social and ethical implications of technological innovation enabled by information and communications technology (ICT) is a key current issue. 

There is a pressing need to explore both how ICT is enabling new forms of legal practice, and how Irish law should respond to this, but these questions have not yet been considered in any detail, he said.

Although the legal profession was a relatively early adopter of ICT tools, development slowed from the 1970s on.

Rapid changes

The period since 2015 has seen rapid changes in the range and capacity of the tools that are available to supplement the skills of lawyers, he explained.

The deployment of tools such as machine learning may radically transform this field (and many other professions) in the next five to ten years, raising questions for legislators to consider.

In the courts, lawtech includes video-conferencing, digital audio recording (used throughout the Irish courts), document management and display, video evidence (CCTV or interview recordings, both very common), electronic filing (under trial in the Supreme Court), case management, and websites.

In legal practice, lawtech ranges from:

  • Basic word processing,
  • Online research databases,
  • Electronic discovery (pre-trial location and sharing of relevant documents),
  • Practice and litigation management,
  • 'Big data’ and ‘artificial intelligence’ (AI) tools that claim to find problems in lengthy contracts, predict the outcomes of court cases, and otherwise enhance the professional judgment of lawyers.

Lawtech is still in its relative infancy in Ireland, particularly compared to the UK and the USA, but is fast becoming a significant area of innovation, Dr Kennedy points out.

There are several indigenous start-up businesses focusing on the legal services market and many practitioners (and their clients) are adopting lawtech.

Courtroom presentation software has been used in the High Court (the high-profile Schrems and Quinn cases) and Supreme Court (Lannigan v Barry).

More significantly, the new chief executive of the Courts Service Angela Denning intends to invest heavily in ICT and to introduce radical reforms, such as allowing guilty pleas to be entered online.

Economic implications

These accelerating changes may have important economic implications, Dr Kennedy believes.

Lawtech could be a means of reducing legal costs.

The Law Reform Commission has made recommendations on electronic conveyancing, which are being implemented by the Law Society.

Lawtech could also enable new businesses, new business models, and new sources of employment, Dr Kennedy says.

“Ireland’s position as a European technology hub also provides an opportunity to build an industry with export potential. The possible savings and profits are significant, but so are the costs of failed projects. A supportive but cautious legislative framework will be needed,” he told Gazette.ie

Social implications

Lawtech could also improve access to legal advice in entirely new ways, such as through online ‘apps’.

Software which enables the preparation of straightforward paperwork, such as uncontested divorces, have long been available.

These tools are now quite sophisticated, with online ‘chatbots’ tackling more involved procedures, such as challenging parking tickets.

Individuals may be able to consult with their solicitors by video-conference, reducing travel time and other inconveniences, but this will require secure communications, Dr Kennedy points out.

Lawtech therefore has the potential to provide users of legal services with better quality at lower cost, he says.

However, legal apps may fall foul of prohibitions on non-lawyers providing legal services.

This question has already been litigated in the United Kingdom (JK & MK v E- Negotiation [2020] EWFC 2).

In that case, the service provider in question was found not to have violated English law; the outcome might be different in Ireland, and legislative reform might be needed.

Ethical implications

ICT and AI have already raised significant general ethical issues, which are widely discussed, but lawtech generates specific questions, Dr Kennedy says.

“For example, it could create two types of ‘have nots’. Small legal firms may not have the resources needed to obtain the access to infrastructure and skills to compete with larger practices.

“Less technologically competent, economically-deprived or rural individuals may be unable to access online or digital services,” he continues.

Although video-conferencing has been used for less serious hearings (such as bail) and contexts where it is appropriate (such as child witnesses), expanding its use to include full hearings risks placing the accused at a disadvantage.

The use of video-conferencing by practitioners also raises ethical and data protection issues.

While the use of ICT to assist or replace judicial decision-making are not part of current Courts Service plans, US judges have used big data tools for bail and sentencing, raising concerns about possible biases in the data.

China, Pakistan, and (closer to home) Estonia have begun to deploy ‘AI judges’, Dr Kennedy points out.

Their use in Ireland would raise challenging ethical, legal, and constitutional questions, as they could involve turning justice over to programmers and statisticians, and might entrench existing social inequalities.

Legislative implications

These developments therefore raise challenging questions for legislators to consider, Dr Kennedy says.

“It is often claimed that too much regulation stifles innovation; however, unrestrained innovation could lead to a fragmented market without shared standards, making it difficult for new competitors to challenge dominant firms.

“Careful interventions will therefore be necessary to ensure that lawtech is positive and ethical.

“There will also be a need to update the law on aspects of evidence, procedure, and technical matters such as signatures, in order to keep the law up to date,” he says.

Dr Kennedy expects that changes may be required to the Criminal Evidence Act 1992, the Electronic Commerce Act 2000, or the eIDAS Regulation, as was done for electronic conveyancing in the Land and Conveyancing Law Reform Act 2009.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland