Crossborder Restructuring of Law Firms, Internet Lawyers and Technology Whiplash by Peter D. Maynard, PhD, FCIArb 1
“The future is already here. It’s just not evenly distributed.” William Gibson 2
The topic is a mouthful. But, it brings to mind the future of the profession, cool stuff that can empower lawyers and clients, and the relatively unexploited opportunities for lawyers to dramatically improve their cooperation with other lawyers, courts and clients by virtue of modern technology, big data and relatively inexpensive but phenomenal computing power. Among other consequences, possibilities have opened up of continuing to break 3 traditional, colonial or neo-colonial patterns and mindsets that permeated places such as the Caribbean archipelago, which, for example, led clients and lawyers to hire and import lawyers from the mother country sooner than they would employ equally skilled lawyers in the same country or region.
Therefore, this article is divided into two sections; it will deal firstly with the Internet and technology and then draw some brief observations on crossborder restructuring. More emphasis is placed on the former section than the latter, and a very broad view is taken of restructuring to
1
BA, MA, LLM, PhD, FCIArb. Barrister (Bahamas, England and Wales, Trinidad and Tobago, St. Vincent and the Grenadines, St. Lucia, Antigua-Barbuda and pro hac vice Turks and Caicos Islands), Past Chair of the Public and Professional Interest Division of the International Bar Association, Head of the Law Department, University of The Bahamas, and Senior Partner, Peter D Maynard Counsel & Attorneys (full service commercial firm), Bay Street (P O Box N-1000), Nassau, Bahamas. www.maynardlaw.com, tel. (242)325-5335. I acknowledge the assistance of student Alphonso Lewis in the preparation of this article. 2 See, e.g., https://en.wikiquote.org/wiki/William_Gibson accessed on 21 August 2017. 3 Paradoxically the same technologies can have the opposite effect and can be used to strengthen traditional relationships and mindsets. The difference is that, because of significantly lower costs, technology is accessible to more people and the relationship choices can be more democratic.
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go beyond merger in order to touch on other business relationships among lawyers and law office ecosystems.
In the Caribbean, the merger of two or more firms, crossborder or within the borders of a country, is a relatively rare occurrence. But, most lawyers can think of at least one notable example. It is more common for lawyers to operate crossborder through networks and best friend relationships. Therefore, this article will conclude by commentng briefly on the latter relationships.
I. Internet and Technology Today, clients and lawyers are millennials (or generation y) 4 in increasing numbers and have integrated use of digital technologies, social media and the Internet intimately into their lives. In an effort to keep pace, practically every lawyer or firm has a website. In the past, the lifelines of a firm were the post, telegrams, telexes, telephones and fax machines.
With technology
whiplash 5 and rapid change, the old technology has either become obsolete or considerably diminished in importance. Greater reliance is placed on the information superhighway through the use of emails, smartphones and the Internet. Furthermore, extraordinary opportunities have opened up for networking, access to law databases, seminars, publications, and other resources, necessary for practice and business development. This article touches upon the use of technology by lawyers, specifically emails and the Internet but also other new and emerging technological advances such as artificial intelligence. 4
See eg <https://en.wikipedia.org/wiki/Millennials> accessed 11August 2017. See Joi Ito and Jeff Howe, â&#x20AC;&#x153;Whiplash; How to Survive our Faster Future, New York: Grand Central Publishing, 2016. The accepted yardstick is Mooreâ&#x20AC;&#x2122;s law, that technological capacity doubles every two years.
5
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This article is not so ambitious as to deal with all the issues that arise regarding the Internet. 6 In this brief article, regardless of field of practice, we shall consider an Internet lawyer to be a lawyer who has a website only, or both a website and also a physical office. The latter is most common. It is unusual to find a lawyer who has only a virtual presence, and who relies exclusively on the Internet to receive business and to deliver legal services. 7
This section is divided into six parts: 1. Advertising, websites and the failure of lawyers' rules to keep up with fast technological change; 2. Internet as a research tool; 3. Social media, such as LinkedIn; 4. Apps, such as What's App; 5. Artificial intelligence; and 6. E-filing.
A central theme of this paper is that lawyers have to adjust to change. But, the rules also have to be adjusted. This paper does not go so far as to suggest specific amendments to the rules, but fulfills its mission by pointing out that the rules need not only to be changed but to be completely overhauled. Particularly for lawyers, it is better to change the rules than continuously to drive a
6
For definition purposes, an Internet lawyer is a lawyer with considerable experience handling legal issues that involve the Internet, web sites, online applications, technology and software, Internet libel and intellectual property.Traverse Legal Attorneys & Advisors, <http://www.traverselegal.com/blog/faq/what-is-an-Internetlawyer/> accessed July 26, 2017; <http://www.aaronkellylaw.com/Internet-lawyer/> accessed July 26, 2017. 7 Even in T. Ferris, The 4-Hour Workweek: Escape 9-5, Live Anywhere, and Join the New Rich (2007), the nonlawyer author had a physical presence, although he checked his emails only once a day and outsourced tasks to virtual assistants.
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coach and six horses through them. As guardians of the law, lawyers are expected to take the lead in updating rules, especially those governing their own profession.
1.
Advertising, websites and the failure of lawyers’ rules to keep up with fast
technological change Television shows such as Jerry Springer, are punctuated with lawyer advertisements offering to go after huge damages for auto and motorcycle accidents, bad pharmaceuticals, medical malpractice and police brutality. 8 Advertising is designed to attract business, whether you are selling goods or services. Indeed, a prominent showman of his time is said to have opined that any publicity is good publicity. 9
But, others take a more genteel and moderate approach, lamenting possible negative impacts on the reputations of lawyers and of the profession as a whole and the advantage gained by rich lawyers able to direct large sums of money into publicity. Indeed, there appear to be at least two schools of thought regarding lawyers: a relatively liberal, laissez-faire approach (such as in the United States) and a conservative, more regulated approach (such as in the Caribbean). 10
The definition of “advertise” is describe or draw attention to a product, service, or event in a public medium in order to promote sales or attendance. 11 A good definition of “solicitation of
8
See www.jerryspringertv.com and www.nosey.com for times and markets although lawyer ads do not appear on these websites. 9 “There is no such thing as bad publicity” are words commonly attributed to circus impresario P T Barnum. He also is reputed to have said, "I don't care what they say about me as long as they spell my name right." In a similar vein, poet Oscar Wilde said "There is only one thing worse than being talked about and that is not being talked about." 10 This typology is by no means exhaustive. Other world regions have not been closely examined, although anecdotally it appears that most regions are relatively conservative as far as lawyer advertising is concerned. 11 Google.com accessed 7 August, 2017.
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clients” is found in the ABA Model Rule 7.3, according to which lawyers cannot importune “professional employment from a prospective client in person, by telephone or by real-time electronic contact, unless the person being solicited is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.” 12
It is useful to regard advertising and solicitation of clients in terms of a spectrum, ranging from word of mouth and hanging a shingle on the outside of an office on one acceptable extreme, to bombastic, exaggerated television, radio, billboard, or Internet ads on the other relatively unacceptable extreme. The challenge is to set out rules stating which kinds of publicity are acceptable and which are not, in a rapidly changing environment.
Under Rule 7.2 of the American Bar Association Model Rules of Professional Conduct, advertising or solicitation of clients is permitted. “Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.” 13 The Rule is notably subject to rules 7.1 14 and 7.3. 15
However, in Caribbean jurisdictions like The Bahamas, Jamaica and Trinidad and Tobago, Internet lawyers fly close to the fire and even into it, as advertising of legal services is ultra vires 12
See footnote 11 below. Rule 7.2 ABA Model Rules of Professional Conduct 2016, < https://goo.gl/DMo2He> accessed on 8 August 2017. 14 Rule 7.1 ABA Model Rules of Professional Conduct 2016, ‘A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’ 15 Rule 7.3 ABA Model Rules of Professional Conduct 2016, ‘A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.’ 13
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their respective codes of ethics. Therefore, such rules appear to be outdated within these and other Caribbean jurisdictions.
In Caribbean jurisdictions, websites are commonly used to inform potential clients and the public at large that legal services are offered by firms or sole practitioners, and the types of services. Rule XIII of the Bahamas Bar’s Code of Professional Conduct declares that unregulated competitive advertising is incompatible with the integrity of the profession and may be detrimental to the public interest. 16 Furthermore, to stress zero-tolerance of touting and advertising, paragraphs 7 and 8 of the Commentary 17 on Rule XIII also declare that that no form of advertising to attract clients must be conducted at any time 18 and that attorneys should not solicit appearances on the radio, television or any other public forum in his professional capacity as an attorney. 19 That admonition is also blatantly flouted.
Trinidad and Jamaica’s rules reiterate a very similar approach to advertising. For instance, under Canon II of Jamaica’s Legal Profession Rules, 20 paragraph (b) asserts that “An Attorney shall not in the carrying on of his practice or otherwise permit any act or thing which is likely or is intended to attract: business unfairly or can reasonably be regarded as touting or advertising”. Paragraph (g) declares that “An Attorney shall not permit his professional standing to be used for the purpose of advertising any particular product, service or commercial organization”. Paragraph (h) states that “Subject to the provisions of Canon II (i) an Attorney shall not use
16
Schedule of Bahamas Bar (Code of Professional Conduct) Regulations 1981 Chapter 64. The Commentary on each Rule is intended to be a general guideline and not part of the Rule. Section 2 (b) of the Regulations Chapter 64. 18 Ibid, paragraph 7. 19 Ibid, paragraph 8. 20 The Legal Profession (Canons of Professional Ethics) Rules 1978. 17
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professional cards, office signs, letter heads, or directory listings or like professional notices or devices.” Paragraph (i) makes specific exceptions of business cards.
Under the Code of Ethics of the Law Association of Trinidad and Tobago, a very similar message is also conveyed, as section 7 declares that: ‘The best advertisement for an Attorney-at-law is the establishment of a well merited reputation for personal integrity, capacity, dedication to work and fidelity to trust and it is unprofessional— a) to solicit business by circulars or advertisements or interviews not warranted by personal relations; b) to seek retainers through agents of any kind.’ 21
Therefore, it seems that lawyers and law firms in Jamaica, Trinidad and The Bahamas have acted ultra vires their respective codes of ethics by creating web pages which are undeniably a form of advertisement in a public forum, except insofar as the rules may have been amended for this purpose. The codes themselves are of relatively dated. But, some revisions have been made. For example, in 1997, The Bahamas made a significant leap forward by adopting instructions regarding publicity, called the Bahamas Bar Council Publicity Rules. According to sections 3 22 and 10 23 of these Rules, law firms and attorneys were then allowed to construct a website or home page on the Internet. 24 The Bar began to adjust to the reality that such websites were already up and running, and many more would follow. 25
21
Professional Code of Conduct: Third Schedule Part A Chapter 90:03 Legal Profession Act 1986. Bahamas Bar Council Publicity Rules Notice 1997 Chapter 64. Three (3) categories of publicity are considered acceptable, namely, listings, brochures and a web site or home page on the Internet. 23 Ibid, ‘It is considered acceptable for an attorney to publish a website or home page on the Internet which contains such information which is permitted in a brochure.’ 24 The Bahamas Bar Council Publicity Rules Notice 1997 Chapter 64. 25 Ibid, Recital D of the Preamble of the Bahamas Bar Council Publicity Rules Notice 1997 Chapter 64 also confirms the concerns that media were being used internationally regarding the availability of legal services. Recital D states that ‘By virtue of technological developments there are new and different media generally available and in use internationally for making known the availability of legal professional services’. 22
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As articulated in paragraph 4 of the Commentary on Rule XIII of the Bahamas Code, the prohibition of advertising legal services derived from the traditional view that advertising is banned by professional bodies. The view is that self-aggrandizement or touting one’s own reputation occurs “at the expense of truth and could mislead the uninformed and arouse unattainable hopes and expectations resulting in the distrust of legal institutions and attorneys.” Therefore, lawyers within the Caribbean region should amend the relevant rules or adopt new ones.
2.
Internet for Research
Law firms use software for practice management and billing, reachable through remote access and cloud services. Hence, lawyers can give more for less. Enormous amounts of other valuable resources are also available on the Internet. Search engines can ferret out information of every description. It is likely that most legal research is now conducted over the Internet through online databases such as Carilaw, 26 LexisNexis, 27 WestLaw, 28 Google 29 and others. 30 Cases, legislation, and articles can be found and accessed at any time or place free of charge or through a paid subscription.
Courts, government agencies and other institutions have made their
databases available online. Therefore, the lawyer’s tools and also his or her work methods have changed.
26
www.carilaw.org www.lexisnexis.com 28 www.westlaw.com 29 www.google.com 30 E.g., www.justis.com 27
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Internet research is really convenient owing to low costs, 31 the speed and accuracy of results, and the retrieval of information in electronic form. Searches can be narrowed by looking for specific key words, terms or principles. Moreover, the Internet gives access to foreign laws, cases, treaties and other resources that are not available locally at libraries or government offices.
Therefore, for the Internet lawyer, search engines and law databases are invaluable additions to his or her tool box. Indeed their impact is so fundamental that they have completely transformed the work landscape.
3.
Social Media, such as LinkedIn
Encrypted online portals are available to exchange correspondence and documents securely with clients. But, nowadays, even major political decisions are announced on social media. 32 Can lawyers safely use social media for work related information? Practitioners tend to regard social media with a high degree of skepticism. Rightly so, as information they place on social media is permanent, may be interpreted as advice, may reach people they never met or contemplated, may violate attorney-client privilege, and may increase the exposure of lawyers to liability.
Therefore, the purposes for which lawyers use social media tend to be carefully circumscribed. Notably, platforms such as Twitter, Facebook, Instagram and LinkedIn are used to advertise professional services. Each platform is different in character, with LinkedIn aiming to be mainly for professionals. Many attorneys have taken advantage of this and have created professional
31
Some at no cost to the user, such as the useful worldlii databases www.worldlii.org. At the time of writing, Kim Jon Un and Charlottesville racism and violence are both related to the frequent tweets of President Trump. With 36 million followers, he has singlehandedly induced many people and the press to pay attention to Twitter and by extension other social media. @realDonaldTrump accessed on 16 August 2017.
32
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profiles providing information concerning their areas of expertise and accomplishments. Those postings in turn attract clients.
Hence, it is a major failing if ethical codes do not address the use of social media. Attention should be given to this subject is the overdue updating of lawyersâ&#x20AC;&#x2122; rules.
4.
Apps, such as Whatâ&#x20AC;&#x2122;s App
Smartphone and associated technologies have revolutionized the way we communicate, work, play and interact. Recognizing that employees spend a substantial amount of work time each day on smartphones, many employers therefore adopt the attitude that if you cannot beat them, join them.
In some workplaces, employees are encouraged to communicate with each other and their employers (including lawyers) not only by email but also through apps. No longer exclusively used to play video games, listen to music and read books, some apps are also designed for communication and a wide variety of business purposes. While some systems are completely private and designed for internal use in a particular business, others are available free of charge and off the shelf so to speak. 33
For example, Whatâ&#x20AC;&#x2122;s App, Skype and Viber make communication between lawyers and clients easier and cheaper. Such calls are free of charge or considerably cheaper than the telephone
33
Meetings can also be arranged through paid or free services and apps such as Go To Meeting www.gotomeeting.com and Skype www.skype.com.
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company. Teams, within a single law firm or among several law firms, join a short or long term chat dedicated to a particular case or project.
These apps also offer free video calling, and make it convenient for attorneys to contact their foreign clients at scheduled or unscheduled times without the hassle of having to be in office or having to meet face to face at a particular location for video calling.
In sum, apps have slashed costs and boosted the convenience of communication with clients, and among lawyers and staff within the same firm and across many firms. The permutations and combinations are unlimited and easy to set up.
5.
Artificial Intelligence
In the past, machines replaced farm animals and manual labour. But, now machines are moving up the value chain and are coming after people with university degrees and political influence. 34 In simple terms, artificial intelligence (AI) is the performance by machines of tasks normally requiring human intelligence, such as learning, visual perception, speech recognition, decisionmaking, and translation into and between languages. 35 The hardware becomes stronger and smaller, and the algorithms are smarter. As we are reminded by movies such as Terminator and Matrix, building something that is smarter than your own species is probably not a good idea.
34 35
See, eg, Garry Kasparov, â&#x20AC;&#x153;Donâ&#x20AC;&#x2122;t Fear Intelligent Machines: Work with themâ&#x20AC;?, TED Talks <http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095426960>.
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So, AI has to remain human compatible, and that may be a real challenge. But, so far driverless cars continue to be developed, and Alexa 36 and Siri appear to be fairly popular.
AI systems now exist for the purpose of assisting attorneys in an efficient manner. 37 Moreover, they are not going away; they are here to stay. Important drivers are: lower costs, because of intense client pressure to reduce hourly fees and hours spent; improved access to justice, and several Internet lawyer entrepreneurs are exploiting this part of the market; 38 and advances in AI applications to perform greater tasks than previous technologies.
The fields affected so far include real estate, bankruptcy, contracts, and other tasks.
For
example, the client may answer several dynamic questions online and, as a result, a customized contract is generated. But, the scope is constantly expanding. For some time, some basic legal tasks have been outsourced, sometimes even to foreign countries. But, AI systems include Neota Logic system, 39 Everlaw, 40 Lex Machina, 41 Riverview Law, 42 Kira system, 43 Legal Robot 44 and
36
Alexa will pay up to $1.9 million to settle class actions brought by its customers. Since 2000, five suits were brought against Alexa for sending confidential information to Amazon which bought Alexa in 1999. https://www.cnet.com/news/amazon-unit-settles-privacy-lawsuit/ accessed 20 August 2017. 37 For instance, artificial intelligence systems such as RAVN ACE, Kira System and ROSS are being utilized by large law firms. 38 For example, Rocketlawyer <https://www.rocketlawyer.com/> LegalMatch <https://www.legalmatch.com/> CasePost <www.casepost.com> and LegalZoom <https://www.legalzoom.com/> accessed 8 August 2017. 39 Neota Logic system allows for intelligent automation of legal tasks or the purpose of making work less tedious for lawyers, <https://www.neotalogic.com/> accessed 9 August 2017. 40 Everlaw finds documents and explores databases in a quick and effective manner, <http://www.everlaw.com/> accessed 9 August 2017. 41 Lex Machina is a legal software that mines litigation data, revealing insights never before available about judges, lawyers, parties and subjects of cases, < https://lexmachina.com/> accessed 9 August 2017. 42 Riverview Law are experts in legal managed services, projects and technology and provide virtual assistants to law firms, < http://www.riverviewlaw.com/> accessed 9 August 2017. 43 Kira system is an AI software which helps complete contract reviews in a time efficient manner as well as mitigate risk of errors and unexpected liabilities, < https://kirasystems.com/> accessed 9 August 2017. 44 Legal Robot is an AI system which enhances or entirely replaces traditional legal processes like contract reviews with an automated intelligent assistant that flags issues and suggests improvements by considering best practices, risk factors, and jurisdictional differences, < https://www.legalrobot.com/> accessed 9 August 2017.
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ROSS. 45 For instance, the AI platform RAVN Applied Cognitive Engine (ACE) 46 was used as a contract robot to assist in real estate disputes, interprets, extracts and structures specific information from documents with a higher degree of accuracy and in less time than humans was first used by the Berwin Leighton Paisner, a British law firm. 47 Subsequently, the same AI system was later utilized by another British law firm, Linklaters. 48
The recent success of using AI systems to assist with legal matters has become so popular that and time efficient that a new artificial intelligence system, ROSS was created. According to rossintelligence.com, ROSS is a personal artificial legal researcher which has access to a large legal database, can answer legal questions and translate answers into different languages. Indeed, one of the largest law firms in the United States, Baker Hostetler, will be introducing the AI system ROSS as a legal researcher to assist lawyers in its bankruptcy department. 49
Considering the time the ROSS system saves and the efficient manner legal research can be conducted with other AI systems, the future seems bright. However, the question of whether these AI systems will replace humans still remains. This is because AI systems like RAVN ACE, 45
ROSS is a personal artificial legal researcher which has access to a large legal database, can answer legal questions and translate answers in different languages, < http://rossintelligence.com/> accessed 27 July 2017. 46 RAVN Ace is an artificial intelligence platform which retrieves specific information from documents and unstructured data. RAVN ACE also uses artificial intelligence to automatically read, extract and summarise information held within documents, https://goo.gl/3wLekH / accessed 8 August 2017. Other entities mentioned above such as Google and FaceBook also have AI products, and IBM Watson teamed up with Thomson Reuters. https://www.thomsonreuters.com/en/press-releases/2015/october/thomson-reuters-ibm-collaborate-to-deliverwatson-cognitive-computing-technology.html. 47 Rebecca Hawkes, ‘Berwin Leighton Paisner wins Best Use of Technology at the British Legal Awards with its implementation of a RAVN ACE Robot’ 2015, < https://www.ravn.co.uk/berwin-leighton-paisner-wins-best-usetechnology-british-legal-awards-implementation-ravn-ace-robot/> accessed 27 July, 2017. Also see information on the flyer sent from Elizabeth Ortega. 48 ‘Linklaters confirms AI deal with RAVN’2016, < https://www.legaltechnology.com/latest-news/linklatersconfirms-ai-deal-with-ravn/> accessed 27 July 2017. 49 Amit Chowdhry ‘ Law Firm Baker Hostetler Hires a ‘Digital Attorney’ Named ROSS , 2016, <https://www.forbes.com/sites/amitchowdhry/2016/05/17/law-firm-bakerhostetler-hires-a-digital-attorney-namedross/2/#1d68f2927341 > accessed 27 July 2017; < https://www.youtube.com/watch?v=sbwEO8-Vox>.
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Kira, Legal Robot and ROSS can perform the same tasks as junior lawyers and paralegals in less time and with more accuracy. But, the prospect of higher unemployment for junior lawyers and paralegals is probably overhyped. 50 Machine learning itself requires front-end labour by junior lawyers and paralegals. Therefore, at present, while tasks are becoming more automated and automation will probably cause a drop in employee headcount, lawyers will still have to check and approve their back-end work product. Lawyers are not yet an endangered species. With the decline of the billable hour for some tasks (through the faster speeds of AI), some lawyers have invested in AI. 51
6. E-filing The Caribbean Community (CARICOM) and associated regional institutions for some time have explored how to leverage technology to bring the region closer together in spite of the wide geographical spread of the countries. The Caribbean Court of Justice (CCJ) took a leadership role in this regard by launching an electronic court management system with a view to improved access to justice across the region.
The system permits e-filing of documents.
Court rules for both its original and appellate
jurisdiction have been amended to accommodate e-filing. 52
Since 2013, filings have been
possible by email. But the system had been dramatically expanded to allow litigants to file
50
See, e.g., Artificial Intelligence, Technology and the Future of Law, 25 March 2017 https://www.law.utoronto.ca/events/technology-and-future-law-lawyering-and-legal-education-conference 51 Dentons launched legal tech company Nextlaw Labs which invested in 2017 in AI-powered award-winning platform ProFinda. https://www.dentons.com/en/whats-different-about-dentons/connecting-you-to-talentedlawyers-around-the-globe/news/2017/may/nextlaw-labs-invests-in-next-generation-ai-powered-expertise-findingplatform-profinda accessed on 20 August 2017. 52 See the e-filing portal at http://www.caribbeancourtofjustice.org/e-filing-portal accessed on 21 August 2017.
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online, and to have an increasingly paperless experience. 53 One can also expect greater use of ediscovery in due course.
Therefore, lawyers should think of strategically integrating technology into their practices. Is your technology competence a measure of your competence as a lawyer? That question arises from the ABA model rules. â&#x20AC;&#x153;To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology â&#x20AC;Śâ&#x20AC;? 54
But, the rules also have to be adjusted. Indeed, the rules on publicity need not only to be changed but to be completely overhauled. Particularly for lawyers, it is better to change the rules than continuously to violate them. Lawyers are expected to take the lead in updating rules, especially those governing their own profession.
At the same time, exciting new possibilities open up when the Internet is used for cloud-based software for billing and research.
These benefits affect all professions including lawyers.
However while social media are pervasive, caution is required in using them. Apps are widely used for communication and other purposes within and between law firms. Artificial intelligence has also been applied to the law office ecosystem and the scope of its impact is expanding. The changes in regional institutions are also far-reaching. A notable example is e-filing in the CCJ.
53
A Curia court management system was introduced in 2017 which, in addition to electronic filing, facilitates performance and case management. See, e.g., http://jamaica-gleaner.com/article/caribbean/20170512/ccj-amendsrules-its-original-and-appellate-jurisdictions accessed on 20 August 2017. 54 ABA model rule 1.1 paragraph 8.
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II. Crossborder Restructuring of Law Firms Restructuring can be a broad topic. Mergers in a crossborder context are an even broader topic. If you Google “law firm restructuring”, one of the options that comes up is “major law firms that have closed”. 55 I doubt that such an unhappy result (bankruptcy) is what the topic proposer for this session had in mind.
In the context of the Caribbean, where most lawyers work in small firms or as sole practitioners, such crossborder restructuring is relevant to a small minority of firms. At the same time, most lawyers can think of at least one notable example. 56
At the same time, regardless of firm size, many lawyers operate crossborder. Therefore, this part makes some comments on how regional lawyers operate in a crossborder context, and what changes, structural or otherwise, they need to make for that purpose. It touches on technological and regulatory constraints.
The first part of this paper is apropos of how lawyers and clients may empower themselves through technology. The opportunities and also challenges arising from technology and the Internet are magnified many times over in a crossborder context. Tools ranging from the use of
55
That was the actual result of a Google search done on 18 August 2017. There are several global firms that focus on crossborder restructuring of companies. 56 E.g., Trinidad and Tobago DeNobriga Inniss & Co. merged in 2000 with Lex Caribbean (of Barbados), with offices now also in Jamaica and London. Bermuda’s Appleby Spurling & Kempe merged with Cayman firm Hunter & Hunter in 2004; the merged firm, known as Appleby Spurling Hunter, also had offices in Hong Kong and London. The Bahamian firm Higgs & Johnson merged in 2009 with the Cayman firm Truman Bodden & Company; they were both members of the network TerraLex. http://www.thebahamasweekly.com/publish/international/Cayman_and_Bahamas_Law_Firms_Merge4908.shtml Bergman Bloem & Bergman and ZwanikkenSnowEssed merged in 2009. The new firm, called BergmanZwanikkenSnowEssed (BZSE), became the largest law firm on the Dutch side of St. Maarten. http://www.dutchcaribbeanlegalportal.com/news/in-the-spotlight/692-bzse-largest-law-firm-on-sint-maarten
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apps to AI open exciting possibilities and challenges.
For example, strategic crossborder
alliances with other lawyers can provide more focused attention to specific projects, greater responsiveness to clients, a wider range of services and expertise, scaling up, larger workflows and ultimately lower costs.
Lawyers may enter into various kinds of business relationship with each other. Regarding regulatory considerations, it is useful to consider different situations: merger, networks, best friend (or correspondent) relationships. 57
A merger or marriage between two or more firms involves careful planning and a common culture. Even then, there is no guarantee it will last. In a crossborder contcxt, each local office is responsible to make sure that local regulations are satisfied.
Networks are a looser, less committed form of association. But, there is strength in numbers. In return for a subscription fee and regular meetings, networks can be a source of crossborder referrals, which may be valuable business. They may also provide important support in other ways, such as branding 58 or making AI platforms or other services available to members that they otherwise would be unable to afford.
57
These situations are common illustrations but not necessarily exhaustive. For example, in two primary practice areas of the author â&#x20AC;&#x201C; (1) arbitration and (2) asset tracing and recovery â&#x20AC;&#x201C; he is a member of the Latin American and Caribbean Usersâ&#x20AC;&#x2122; Council of the London Court of International Arbitration among other organizations that assist in branding. www.lcia.org/Membership/Users_Council_Officers.aspx He is also a member of FraudNet, a network of about 70 anti-fraud, asset tracing and recovery specialists around the world recommended and operated by the International Chamber of Commerce. As each fraud involves several jurisdictions, such a skilled rapid force such as this is vital to success. www.icc-ccs.org/index.php/home/fraudnet 58
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In India, China, Brazil and some other major markets, best friend or correspondent chosen foreign firms, particularly as merger may not be an option.
Barriers to the transfer of goods, expertise and people are coming down, notably in regions such as the Caribbean. Technology and the Internet are playing an important role in creating the relationships to make this happen.
According to the Economist magazine, “On one hand, international lawyers are at least as ingenious as their customers when it comes to overcoming obstacles to transnational operations; on the other, lawyers have always been skilful at limiting access to their own profession, both within their own countries and globally.” 59
In China and Brazil foreign firms have flourished by offering advice on international law, but (with the exception of Hong Kong) they cannot provide legal representation in local courts. India is closed to foreign lawyers in any capacity. Particularly in such circumstances where the admission to practice is not liberalized, there is no alternative but to look for a correspondent lawyer directly or through a network.
In conclusion, the topic is provocative and thought-provoking in its application to regions such as the Caribbean.
The new and emerging technologies are truly revolutionary.
But, the
technologies are not an end but can be a means to the end of delivery of efficient, cost-effective, high-quality legal services. As Gordon admonished at the outset of this tour d’horizon, The
59
See,e.g., “Law and globalization: Not entirely free, your honour”, Economist magazine, 29 July 2010, www.economist.com/node/16693882 accessed 21 August 2017.
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future is already here, but it is just not evenly distributed. The opportunities and challenges are there of empowering lawyers and clients. It is up to you to take advantage of them.
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