The Lawyer’s Future: Millennials, Gen – Z, Disruption and Blockchain M. Georgia Gibson Henlin, QC In the world of law, old habits do indeed die hard 1 The technology likely to have the greatest impact on the future of the world economy has arrived, and it’s not self-driving cars, solar energy, or artificial intelligence. It’s called the blockchain. 2
The lawyer’s approach to the adoption of technology historically conservative and not without some degree of merit. Lawyers as a group are steeped in tradition. They are conservative and slow to adapt to changes and moreso those that threaten to disrupt traditional principles underlying their relationship with their clients. One concern is the confidentiality and privacy of client data. Their conservatism is not unwarranted. Recent high profile data breaches, the latest being Equifax, 3 makes the case for their conservativism.
This is underscored by the fact that lawyers have not
been spared. Indeed Mossack Fonseca, a law firm in Panama was the subject of the “epic haul” of their data. That breach came to light on the 4th April 2016. Perhaps less well known is that the Cayman Islands firm of Appleby was also the subject of a data breach. The CaymanCompass a local newspaper reported as follows:
1 2 3
Richard Susskind: The End of Lawyers? Rethinking the Nature of Legal Services – Preface to the Hardback Edition Don Tapscott and Alex Tapscott, Blockchain Revolution, How the Technology Behind Bitcoin is Changing Money, Business, and the World One of United States largest credit bureaus.
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Appleby admitted “a data security incident” happened at the firm last year and that some data had been compromised. “We are committed to protecting our clients’ data and we have reviewed our cybersecurity and data access arrangements following a data security incident last year which involved some of our data being compromised,” the statement said. “These arrangements were reviewed and tested by a leading IT forensics team and we are confident that our data integrity is secure.” 4
Lawyer/client data is therefore attractive to hackers and has been the subject of unauthorised access. Herein lies the challenge. Approximately, ten years ago Richard Susskind 5 urged lawyers to rethink the way that they deliver legal services. Susskind urged lawyers who find it difficult to consider or embrace information technology’s impact on law and legal practice to take note of services such as LegalZoom. He describes Legalzoom as: a US-based business that leads the way in providing online legal documents. Since their launch in 2001, their vision has been to help people create their own legal documents and so put the law within the reach of millions of people – reliably and online. They believe it should be easy for non-lawyers to create wills, incorporate businesses, register trademarks and take care of their everyday legal matters without instructing costly lawyers… LegalZoom is now the best known online legal service in the US, and its brand is better known in the US than that of any law firm. Remarkably too, they have served over 1,000,000 customers. 6 Technology is now mainstream. The future is now. Even so, today, in Jamaica, there are lawyers and justices alike who are proud to say that they are unable to turn on a computer. This, at a time when traditional notions of computers as a tool are
4 5 6
https://www.caymancompass.com/2017/10/24/appleby-confirms-data-breach/ Supra Supra at xxvii
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becoming obsolete.
Basic tools for work such as word processing applications 7 are
forcing lawyers to the “cloud” so that lawyers no longer have exclusive control over the documents and information relating to their clients’ business. Governments and courts are introducing online platforms for delivering services including electronic payments for taxes and electronic filing. In making the case that attorneys should rethink the way they practice Susskind made reference to the changes that were then taking place in the United Kingdom Supreme Court “expressed the hope that [the systems then being introduced to the court] would become a flagship for a wide range of case management technologies” 8 and they have. The Privy Council consistent with improvements in the Supreme Court in the United Kingdom has adopted technology that makes it processes more efficient and available to litigants. Some may argue more expensive.
Nevertheless, starting with
electronic filings, the court now requires that in addition to conventional paper bundles, litigants should file electronic copies of their record of appeal which should be fully searchable. The technology enables the court to highlight the case bundles and to search quickly and locate relevant sections of the case. In addition, the ban on cameras in court rooms has been abolished and in the near future the court may consider hearing cases from the rest of the Commonwealth by video link. As it stands, litigants and
7 8
Office 365; PowerPoint and Excel Supra at Page xxvi
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lawyers are able to watch its proceedings live or on demand. The Caribbean Court of Justice (CCJ) is similarly the most advanced court in the region.
“The Court has
distinguished judges, well-trained staff, modern technology, video conferencing, efiling, a Regional Judicial and Legal Service Commission – all of which are designed to ensure that we deliver high quality justice to the people of our region.” 9 Similarly, in Jamaica the Civil Procedure Rules 10 and the Court of Appeal has made provision for or otherwise implemented initiatives that facilitate electronic filing. In the Court of Appeal Practice Note No. 1 of 2015 deals with the electronic filing of submissions. In addition, to the incremental movement by Jamaica’s superior courts, and perhaps more fundamentally, the lawyer/client cohort has changed and continues to change to online user preferences. The Millennials have come of age. The Gen-Zs are not far behind. Millennials are known for doing things differently particularly the way that they use and interact with technology. They were born between the late 80’s and mid 90’s. They are digital natives. Their differences have already generated significant literature and discussions in law schools, legal management firms as well as among legal services providers. Millennials’ use of technology has forced and will force lawyers to adapt to take account of their way of working and receiving service. It is thought that they are lazy, entitled and demanding.
9 10
Maybe not quite so. They will work, but on
President Byron, 15th Annual SALISES Conference, Hyatt Regency, Port of Spain, Trinidad – April 23, 2014. See for example – r. 2.7(3) and (4); r. 3.6; 3.93.10(5);
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their terms. Millennials want to work remotely and they require flexi-hours. These characteristics are anathema to the legal environment.
Nevertheless, through
millennials they are being imposed on the more conservation generation of “babyboomers” 11 and Gen-Xers, 12 who have different expectations and work ethic and are socialised into to working on the clock and around the clock. These cohorts are more likely to tighten the screws in the face of data and security breaches. Then there is Gen-Z. 13 This generation has an even greater expectation of instantaneity than Millennials.
They thrive on the latest happenings and suffer
withdrawal symptoms if they are separated from technology. It is said that they process information faster than other generations because of apps such as Google, Snapchat and Vine. 14 Unlike Millennials, “in school, they will create a document on their school computer, do research on their phone or tablet, while taking notes on a notepad, then finish in front of the TV with a laptop, while face-timing a friend.” 15 They are multitaskers. “Nearly 92% of Gen Z has a digital footprint.” They are connected. There is no turning back. This pervasive use of technology by new lawyers, potential lawyers and potential clients brings lawyers face to face with Susskind’s urgings. They must rethink the way that they deliver legal services.
11 12 13 14 15
Born between the mid to late 1940s and 1964. Born between 1965 and 1984 Born after 1995 The Blog 11th May 2016 – 8 Key Differences between Gen Z and Millennials. Ibid
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But there is the philosophy underlying the way lawyers historically work. They belong to a profession that is steeped in tradition influenced by the nature and purpose of the law. This impacts their behaviour, what they do and the role they play in the administration of justice and the protection of the vulnerable.
This context
notwithstanding, lawyers are not being alarmists. Their conservatism is well grounded. One of the haloed traditions of the law is the preservation of confidences imparted by the client to the lawyer. There is also the idea of the preservation of the integrity and authenticity of documents relating to certain transactions. This is protected by the concept of “writings”. Recent concerns about erosion apart, confidentiality is at the core of the lawyerclient relationship. It has been granted constitutional status. Lawyers can be subject to discipline for breaching client confidences save for certain well known exceptions. So far as codification goes, in Jamaica the Canons of the Legal profession provides as follows: 16 An attorney shall not knowingly – i.
reveal a secret or confidence of his client, or
ii.
use a confidence or secret of his client – a. to the client’s disadvantage; or b. to his own advantage; or c. to the advantage of any other person
16
July 2, 2014, Canon IV(t)
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unless in any case it can be done with the consent of the client after full disclosure. Provided that an Attorney may reveal confidence and secrets in the following circumstances: i. ii. iii. iv.
v.
where it is necessary to establish or collect his fee; to defend himself or his employees or associates against an accusation of wrongful conduct; in accordance with the provisions of the Proceeds of Crime Act and any regulations made under that Act; 17 in accordance with the provisions of the Terrorism Prevention Act and any regulations made under that Act; 18 or where the attorney is required by law to disclose knowledge of all material facts relating to a serious offence that has been committed.
Confidentiality is so fundamental to the relationship of lawyer and client that it impacts or influences the way that they work. It forces a lock, paper, and key approach. This is because much about the relationship is centered on safeguarding client information against unauthorised disclosure. “Writings” is a reference to the strict compliance with documenting and signing certain transactions such as wills, assignment of leases and the sale of land. The mischief being to avoid fraud and perjury. 19 There are at least two additional reasons that favour lawyers reconsidering their approach to “soft” or online transactions. There is a technology that supports the principles underlying the traditional notions of legal duty particularly those relating to
17 18 19
This amendment is currently under challenge in the case of Claim No. 2014 HCV 04772 in the Constitutional Court – decision pending in the appeal from the decision against this ruling. Ibid The Statute of Frauds, 1677
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transactions and keeping confidences.
This same technology also empowers the
“digital natives” so that will be able to create, complete and enforce their legal transactions online. On the one hand therefore the technology enables lawyers but on the other it creates competition for their services. For this reason, it is apparent that lawyers should consider shifting their focus to understanding this new technology if they are to remain efficient in matters such as research, legal management and transaction matters as well as relevant. The technology though not a silver bullet is touted as an: ingeniously simple revolutionary protocol that allows transactions to be simultaneously anonymous and secure by maintaining a tamperproof public ledger of value. Though it’s the technology that drives bitcoin and other digital currencies, the underlying framework has the potential to go far beyond these and record virtually everything of value to humankind, from birth and death certificates to insurance claims and even votes. 20 It is the blockchain. 21 It enables the creation of a public “trust” ledger. It does so by promoting the confidentiality, integrity 22 and authenticity of transactions including legal transactions.
20 21 22
It means that the confidentiality and “writings”
Dan Tapscott - Supra Sakoshi Nakamoto, a pseudonym - 2008 Daniel Drescher (Apress) at page 6 – “Integrity is important non-functional aspect if any software system. It has three major component:. • Data Integrity: The data used and maintained by the system are complete, correct and free from contradictions. • Behavioural integrity: The system behaves as intended and it is free of logical errors. • Security: The system is able to restrict access to its data and functionality to authorised users only.
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requirements can be replicated in the online or digital environment. This functionality that replicates “writing” is significant given the primary concern of lawyers with authenticity and integrity of the transactions. It arguably meets the conditions of the Statute of Frauds and enables one to identify the signatory and trust that the transaction in a “document” is what it represents. It replicates writing because it makes possible the same assurances and safeguards as a writing: [h]andwritten signatures serve an important purpose: they state an agreement with the content of a document and agree with its execution. The reason why we accept handwritten signatures as evidence for agreement is the uniqueness of each person’s handwriting. Every human being has his or her own characteristic way of writing his or her name. Hence, we identify a name being written in a specific way, we conclude that the person who writes his or her name in that particular way has indeed produced that handwritten signature, and, as a result, we can conclude that this person has agreed with the content of the document and its implementation. 23 Thus the blockchain is capable of creating an “electronic ledger that is similar to handwritten signatures.” The underlying principle is the use of digital signatures to create a unique association with the author, confirm the agreement of the author and authorise the execution of the document or transaction. This generates confidence in the security of the transactions in the blockchain. When properly configured, it ensures that only authorised persons are able to access, alter or transfer transactions or property associated with the accounts. The types of transactions that are implicated by this
23
Daniel Drescher supra at 104
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include the registration and tracking of intellectual property, the registration and transfer of land and securities and the creation and enforcement of contracts. The integrity of the transaction is achieved because “[d]igital signatures in the blockchain can be trace (sic) back uniquely to one specific private key and to one specific transaction in one process.� The technology preserves the transaction thereby enabling the lawyer to comply with identity, retention and/or retrieval obligations. Establishing and verifying identity are important to legal transactions.
The
blockchain exists on an open and distributed system that is the internet. Notwithstanding, this the transactions can be uniquely identified. The data structure of the blockchain also enables the mapping of owners to property and vice versa. It has secure protocols for establishing or verifying identity of persons, the subject or object and then linking them to each other. These protocols perform a function similar to birth certificates or government issued identification cards such as passports or driver’s licence. These forms of verifying identity rely on the security concepts of identification, authenticity and authorisation. Each of these concepts serve different purposes that are relevant if not essential to the validity of legal transactions or to enable such transactions to be traceable. Identification means no more than someone asserting the identity of either a person or of something.
The fact that someone identifies
themselves or a thing as someone or something does not mean that they are whom they say that they are or that the thing is what they say. There must be a means of verifying
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identity of the thing or person. The motor vehicle registration or title, birth certificate, driver’s licence or passport performs this function. However these documents are only reliable if there are security features or procedures that authenticate them. Authentication prevents “someone from claiming to be someone else.” 24 It “means verifying or proving that you are really who you claim to be.” 25
Finally, authorisation
relates to the granting of access. “Authorisation means granting access to specific resources or services due to the characteristics or properties of ones identity. Authorisation is the consequence of both a successful authentication and evaluation of one’s characteristics or rights.” 26 It means that the person that is authenticated would be the person entitled to claim ownership or rights in relation to the transaction in question. In summary, the blockchain is capable of creating a robust system which can verify ownership and identity. It relies on cryptography which is “necessary for creating a trustworthy means of identification, authentication and authorisation and ensuring data security.” 27 Linking the transaction to the owner and vice versa resolves only one aspect of the problem. In the legal environment, the lawyer would also be concerned about control over the data or transaction. In other words, questions would arise as to access
24 25 26 27
Ibid at Page 43 Ibid Ibid Ibid at Page 46
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and storage of the data. The blockchain is also capable of securely storing the data. This is best illustrated by reference to library catalogs: [l]ibrary catalogs are registers of all the books owned by a library‌ Each vard in one of these catalogs represent one book and the card displays information about the book such as the name of the author, the title of the book, the date of publication, and the location of the book within the library such as the floor, room, shelf, and rack number. 28 It will also be recalled that there are these library cards that document the movement of the book. This relates to each time that it is borrowed, the period over which it is borrowed and the date of its return. In the blockchain, the transactions are appended to prior transactions and include embedded security features that associate related transactions with each other in the order that they were created thereby keeping them together. The foregoing is a simplified explanation of the security and hence the utility of the blockchain in legal transactions. It demonstrates that technical safeguards have been developed that are capable of providing the necessary security and verification of legal transactions.
It provides some assurance that somewhat effaces the fear that
lawyers experience when faced with the millennial challenge. The millennial challenge forces a movement to the online platform as lawyers now work or will shortly be
28
Drescher at Page 112
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working in a new space because of the preferences of their associate lawyers or their clients. It is the age of the digital natives. This reality is also informed by the fact that code 29 is performing the function of law. 30 Lawyers must now compete with the blockchain 2.0 which makes possible the creation, and enforcement of transactions such as the transfer of property and contracts online: A 2010 communication from Satoshi Nakamoto indicates that “the design supports a variety of possible transaction types that I designed years ago. Escrow transactions, bonded contracts, third party arbitration, multiparty signatures etc. If Bitcoin catches on in a big way, these are things that we’ll want to explore in the future, but they all had to be designed at the beginning to make sure that they are possible later. 31 In summary, blockchain is more than about currency. The underlying protocols or data structure make possible other a hosts of other transactions all of which similar to the bitcoin rely on trust. Smart Property Property in this context includes shares, intellectual property, real property and things. It will be recalled that transactions can be stored or registered in the blockchain ledger as in a library. In effect, the property or digital asset is registered and can be sold, transferred or exchanged by the owner. The owner’s interest is protected because he
29 30 31
Computer programming. Lawrence Lessig, Code and Other Laws of Cyberspace, 1999 Melanie Swan, Blockchain, Blueprint for a New Economy at Page 9
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controls the key 32 that authorises access to the property. The sale or transfer takes place when control of the private key to the new owner. Smart property is therefore defined as: Property…whose ownership is controlled via the blockchain, using contracts subject to existing law . For example, a pre-established smart contract could automatically transfer the ownership of a vehicle title from the financing company to the individual owner when all the loan payments have been made (as automatically confirmed by other blockchain based smart contracts. Similarly, mortgage interest rates could reset automatically per another blockchain –based smart contract checking pre-specified and contract-encoded website or data element for obtaining the interest rate on certain future days. The key idea of smart property is controlling ownership and access to an asset by having it registered as a digital asset on the blockchain and having access to the private key. Smart property is a new concept, possibly difficult to appreciate. However, it is real. It is a realisation of the predictions of Lawrence Lessig 33 when he spoke about code regulating completely free of human input. In this respect, the code is controlled by cryptography. “The code is self-enforced by the technical infrastructure in the sense that it is bound to operate based on the underlying code and cannot deviate… There could be widespread implications for the entire field of property law – or great simplifications in that property ownership can be recorded on the property itself”34 Another example is the use of smart property to manage ownership is in the area of
32
33 34
This is a reference to an encryption protocol, the private key that is associated with a public key. The private key is used in asymmetrical encryption – when the private and public keys are paired, they convert the data or information into a readable format. Supra Melanie Swan at Pages 14 and 15
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intellectual property. Intellectual property in this digital space is referred to as digital art. “Digital art refers to intellectual property (IP) very generally, not just online artworks. Art is connoted in the patenting sense, meaning “owned IP”. 35
The
blockchain is utilised to “register any form of IP (entirely digital or representing something in the physical world) or conduct attestation services more generally such as contract notarization. The terms is also used in the blockchain to mean online graphics, images, photographs, or digitally created artworks that are digital assets, and thus IP to protect.” 36 Smart Contracts “A smart contract is both defined by the code and executed (or enforced) by code, automatically without discretion.” 37 A vending machine is an example of how smart contracts work. It performs and makes available the good after payment by following a pre-specified protocol which is executed without discretion or human intervention. It is argued that this automation of performance and enforcement makes trust required in real world contracts unnecessary. The result is efficiency, the downward pressure on prices forcing lawyers to rethink the way that they deliver legal services in order to remain viable and relevant. In other words, the more savvy digital natives and their digital native clients are more likely to gravitate towards these online
35 36 37
Ibid at Page 39 Ibid Ibid at Page 16
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platforms. The reality too is that these digital natives are more likely to understand the technology so that “baby-boomers” and Gen – Xers should consider them as assets for future business planning, development and growth. In other words, this is a case for embracing Millenials and Gen – Z. Conclusion This is an overview of the factors that require lawyers to embrace technology. It is also an introduction to blockchain a technology that enables them to do so with some degree of confidence. It is not a case for a technical understanding blockchain. However, it explains why blockchain is the technology, at least for the moment that will take them to the next level of service delivery. The blockchain data structure promotes efficiency and competitiveness. It is built on trust and security thereby addressing one of the core concerns of lawyers, confidentiality and preservation of client information. It must be borne in mind however, that it is neither a silver bullet nor a panacea. The human element is always a factor to be considered in the adaption of any system be it physical or digital.