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Message from Jonathan Goldsmith, Chair, BIC International Trade in Legal Services Committee, February 2021

Jonathan GoldsmithDear BIC Friends:

The IBA has recently issued an information paper for member bars and law societies with ideas for tackling the issue of unregulated providers of legal services. The paper is intended as a background source of help, for instance when a bar finds itself engaged in discussions with decision-makers regarding the treatment of unregulated providers within its jurisdiction.

Many countries are witnessing an increase in the provision of unregulated legal services, whether by providers in person or through electronic platforms, or combinations thereof, or other forms of information technology (IT) owned wholly or in part by non-lawyers. In many cases, these individuals and platforms are not regulated by those responsible for regulating the legal profession.

A number of bars are discussing whether such legal services, or the entities providing them, should be regulated, and if so, how.

The information paper tackles this sea-change in the means of delivery of legal services and their providers. Whereas previously the term ‘legal services’ immediately triggered the image of a lawyer, that is now not always the case. Whether or not this new provision of legal services may be considered, in some jurisdictions, unauthorised practice of law, is often not yet clearly defined.

At the same time, various types of legal technology are entering the market and are used in the provision of legal services. Within the broad nomenclature of ‘artificial intelligence’ (AI) are a multitude of software and other digital means, ranging from rote functionality to software using true AI and deep learning. Blockchain technology is one example that is being used in a variety of economic sectors. These technologies are operated both by lawyers and non-lawyers, and pose their own specific challenges. Whether or not existing rules of professional conduct cover the challenges involved is one of the urgent questions facing bars.

Despite the IBA not itself being a regulator, it nevertheless published International Principles on Conduct for the Legal Profession in 2011, subsequently amended in 2018. The Principles are clearly aimed at lawyers alone. They bypass unregulated (non-lawyer) providers altogether, and the information paper gives bars food for thought on the unregulated sector.

A section of the paper is devoted to national developments in some jurisdictions: the USA, UK, Germany and Poland.

A further section is devoted to the specific impact of recent IT developments.

The paper concludes with a list of standards which a bar may find useful as a check-list when explaining what is important in the delivery of legal services by those not regulated as lawyers. These include: protection of the public, advancement of the administration of justice and the rule of law, and meaningful access to justice for all, as well as appropriate controls for money held on behalf of customers.

Throughout, the paper insists on certain important principles:

  • the public interest and the interests of clients are best advanced when legal services are delivered by lawyers who are licensed or otherwise authorised, with the protections that usually attach to a lawyer’s licence;
  • the IBA should not be seen as endorsing the provision of legal services relating to unregulated providers in jurisdictions where such provision is unlawful or otherwise constitutes the unlawful practice of law, or where it could be damaging to the public interest and the interests of clients in the short or long term;
  • however, the reality is that such provision is taking place now in a wide variety of jurisdictions;
  • the provision of legal services by unregulated providers can in certain circumstances help to address the difficulties faced by many in trying to access legal services, and has been embraced by certain in-house legal departments, and so may have various advantages; and
  • any publication relating to unregulated legal services should not subject the IBA to criticism for merely serving lawyer self-interest.

The new information paper can be found at this link, and any questions should be addressed to becca.verhagen@int-bar.org.

Best wishes,

Jonathan Goldsmith

Chair, BIC International Trade in Legal Services Committee