The problems surrounding the impact of IT on the international trade in legal services affect Brexit only tangentially. So a discussion of them provides a holiday from the Brexit overload in the news over the last few days. These IT problems raise philosophical questions about the nature of legal services themselves.
The World Trade Organisation (WTO), under which legal services are traded between WTO member countries, acknowledges four ways - or ‘modes of supply’ - in which services cross borders. In summary, these translate for lawyers as follows:
- the service itself crosses the border (for instance, by letter, e-mail or telephone)
- the client crosses the border (to see a lawyer)
- the law firm crosses the border (by establishing a permanent presence)
- the lawyer crosses the border (sometimes because of permanent presence, sometimes because of fly-in, fly-out)
These four modes are challenged now by the changing nature of legal services. If there is a lawyer or law firm on one side of a physical border and a client on the other, they make sense. But what if there is no lawyer involved in the delivery of legal services? This is not fanciful as we know, both because of the rise of unregulated providers and because of technological innovations that allow automated document delivery websites, bots and other forms of artificial intelligence, or blockchain. A number of challenges arise, going right to the heart of the identity of legal services.
First, there is a good philosophical discussion behind the question as to whether a legal service is a legal service – as opposed to some other kind of service – if it is produced by a machine without human intervention, and not by a lawyer. Does the term ‘legal service’ necessarily imply a lawyer providing it?
There is no accepted universal definition of legal service, and attempts at a general definition have so far failed because of the different way such services are regarded in different jurisdictions. In the UK, we can see that legal services can be provided by non-lawyers (although I am not sure whether it has been settled that they can be provided purely by machines), since only the reserved activities need a lawyer. But what about other countries which take a much stricter view, and where all legal services require a lawyer, with those falling outside not considered legal services at all?
So the question of whether machines on their own are capable of providing legal services is still open to challenge. If they are not capable, then the WTO commitments of countries in relation to legal services could never apply to them – which is not good news for lawyers, since such services would then be uncontrolled.
Second, regarding unregulated human providers in general, they could be providing services through technology or in the old-fashioned way (in person). If in the old-fashioned way, they are much less likely to be providing cross-border services, which is all that the WTO focuses on in its four modes of delivery. But there is absolutely no reason why unregulated owners of electronic platforms cannot deliver across borders – and they do.
The unfortunate thing is that countries make commitments in their WTO schedules in relation to lawyers, and not in relation to unregulated legal services providers. So the rise of unregulated electronic platforms catches the WTO system unawares, and leaves it unable to deal with such providers through the classic four modes commitments on legal services.
Third, the question arises as to whether a border is crossed at all by a service provided by a machine without the intervention of a human. If software is providing legal advice over the internet, from where does that advice come? From the server in which the software is housed? From the registered office of the company which is behind the service, even if it is different to the location of the server?
In summary, can something which exists only virtually, and which is accessed via a computer wherever you are in the world, be considered to cross a physical border? For instance, if I happen to be temporarily in the country in which the server is based, or in which the company offering the service is based, even though I am not aware of either of their locations, does that suddenly not make it a cross-border service?
The issues above have been mainly raised as questions, because there are no easy answers. We all need to grapple with them now. There may be more, such as the question implied in the discussion over borders: who exactly is the provider in the case of a machine delivering legal services without the intervention of a human? Presumably, the answer is the owner of the machine.
These headaches must be added to all the other political troubles facing the WTO, and threatening its future.