Consumer of legal services in an OnLife world – By Assoc Prof Tania Leiman

Consumers of Legal Services in a Onlife World

TANIA LEIMAN, ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY

“V irtually everyone has a smartphone in their pockets, connecting them to just about every aspect of their lives… a device that”s always on and always connected” 1

, no longer any dichotomy between online and offline. 2 This “onlife” is our “new experience of a hyperconnected reality”. 3

We connect, shop, bank, access government services, pay tax, socialise, consume news and current affairs online. We expect to be able to purchase products customised to our characteristics and preferences “when [we] want, how [we] want”, 4

with “self-service tools that empower [us] to find quick answers on [our] own,” and “when [we] do need more personalised help, [we]”re not apt to wait on hold.” 5

We interact regularly with automated services (often without even being aware they are automated), and “major decisions that shape our lives – whether or not we are offered employment, a mortgage, insurance, credit, or a government service” are increasingly made via “automated eligibility systems, ranking algorithms and predictive risk models” with claims of greater efficiency and accuracy. 6

Automated tools resolve disputes online too. 7 Each onlife interaction generates behavioural data which in turn predicts future behaviour and fuels the value of the platforms 8

which give us which access to each other and make us “legible” or visible to those “seeking to market goods and services” to us. 9

“Platforms - including online marketplaces, desktop and mobile computing environments, social networks, virtual labor exchanges, payment systems, trading systems, and many, many more – have become the sites of ever-increasing amounts of economic activity and also of ever-increasing amounts of social and cultural activity [reshaping] work, finance, information transmission, entertainment, social interaction, and consumption of goods and services, and [destabilising] the locally embedded systems that previously mediated those activities in many different

THE BULLETIN February 2020 types of communities.” 10

We accept cookies, divulge personal details, sacrifice privacy and agree to detailed terms and conditions online (usually without reading them) as part of a Faustian bargain of convenience enabling our access to abundant free information 24 hours a day, now raising wide concerns about surveillance and privacy. 11

SEARCHING ONLINE

A common first step when encountering a problem in this onlife world is a search online – an estimated 6+ billion Google searches were processed per day in 2019, 12

each generating yet more valuable data. Search engines crawl, index and rank via relevance all available content on the internet. 13 Sophisticated search engine optimisation (SEO) functions locate and rank content as relevant. 14

Messaging applications interact with consumers enabling further personalisation in information provided. Increasingly such applications are powered by chatbots working independently from humans, responding to human queries “based on a combination of predefined scripts and machine learning applications” via text messages to specific commands (“rule-based chatbots”) or to natural language queries (“artificial intelligence chatbots”). 15

The more sophisticated the underlying software and the more data it can access, the more complex the chatbot can be 16

- and software is developing fast, with data gathering increasing even faster. 17

Many businesses now use scaleable, affordable, cloud-based software to provide personalised information or auto-filled documents via their websites – all conveniently accessible to consumers 24 hours a day without the need to travel or call. Rapid developments in machine learning and natural language processing tools promise even greater capacity to review and compare documents, customise, personalise, anticipate needs and desires, predict behaviour and suggest solutions.

THE LANDSCAPE HAS CHANGED

The legal information landscape has “irrevocably changed” too. 18

Introduction of electronic resources in 1970s and commercialisation of those resources in the 1980s changed the way lawyers accessed the law but remained largely out of reach to the public. The arrival of CD ROMs in the early 1990s was overtaken by “advances in the World Wide Web [which allowed] publishers to provide online access to their publications.” 19

“Since the mid 1990s, there has also been a strong move to unlimited free web access to legal materials across the globe” (e.g. AustLII, BAILII). 20

Public sector agencies and private enterprises now routinely provide extensive legal information for free via publicly accessible websites. Legal tech has blossomed - across jurisdictions and across the cost spectrum, including “specialised standalone technologies, such as legal chatbots, apps and virtual assistants; enablers of legal advice such as legal automated drafting, legal document review and legal algorithms; further enablers of legal advice such as legal data analytics and predictors, and legal artificial intelligence; automation of legal advice with truly smart contracts; and sets of [automated legal advice technologies] enabling NewLaw business models and legal technology companies.” 21

Tech-enabled tools are fuelling commodization 22

and productization 23

- reframing what were traditionally services into products sold online more cheaply to multiple users in high volumes. 24

Services traditionally provided by lawyers (e.g. wills, agreements, other legal documents) are increasingly reframed as customisable products – for fixed fees (often low or no cost), available instantly. Even courts are moving online. 25 Despite the hype, so-called “smart contracts” hosted on a blockchain, where “code is the only valid expression of a contractual agreement between the parties” 26

are not yet widely in use. By contrast, “e-contracts” (with “computable parts such as data fields, rules and

similar…intended for subsequent contract automation operations, such as drafting, negotiation, monitoring and enforcing”) have led to development of various contract automation systems, and the capacity to “link contract terms to transactions and processes, to increase efficiency and monitor the actions of the parties.” 27

Many of these tools are proprietary, costly, available to high-end users only, and largely opaque; only a few are open source and free. 28

LAW OUT OF REACH?

All this is happening in a context where those needing legal solutions face the “morefor-less challenge”: “many business people confess that they cannot afford lawyers and often have to run the risk of working without legal guidance. … although the law is central to all of our loves, dramatic decreases in public legal aid mean, effectively, that only the very rich or the very poor any longer have the means to afford the services of lawyers.” 29

The Productivity Commission has acknowledged this “missing middle” 30 : “the cost of legal representation is beyond the reach of many, probably most, ordinary Australians. … In theory, access to that legal system is available to all. In practice, access is limited to substantial business enterprises, the very wealthy, and those who are provided with some form of assistance.” 31 This is the space in which disruptive innovation can flourish. 32

OPPORTUNITY TO INNOVATE?

Susskind predicts “[t]he bespoke specialist who handcrafts solutions for clients will be challenged by new working methods, characterized by lower labour costs, mass customization, recyclable legal knowledge, pervasive use of advanced technology and more.” 33

The changing landscape briefly described above shows this is already well underway, with more on the horizon, bringing opportunities for increasing access to legal services, but also concerns about quality and reliability and protection of consumers. However much we might argue about these or whether providers are reputable or appropriately qualified or insured, these tech-enabled automated, personalised products may be “good enough” for many who would not otherwise recognise their issue as a one that would benefit from a legal solution or who would not make the decision to pay for advice from a lawyer - an example of the “low end foothold” of disruptive innovation. 34

Although first iterations of these products may be clunky, as adoption becomes more widespread and datasets grow there is greater incentive to invest in further improving and refining quality and finding new applications for use (c.f. the multiple iterations of digital imagery since Eastman Kodak engineer Steve Sasson invented the first digital camera in 1975 35

). However, this also risks even further disconnect between those who can afford bespoke lawyers augmented by high tech tools and those accessing cheaper or free “good enough” tools.

EMPOWERING OR DIVIDING?

91% of Australians have a smartphone device 36

– a gateway with significant potential to empower consumers of legal services and products. But it can only do so where they can identify that a legal issue exists, the tools are accessible and affordable, any information or advice is sufficiently individualised, accurate, reliable and relevant. Increasing the level of legal literacy in our community will thus be critical to inform and equip users to make effective use of this opportunity and evaluate the products they access.

Ironically though, for those with limited effective internet access or no access at all, the “digital divide” can magnify already existing disadvantage. 37

Those groups identified by the Australian Human Rights Commission as most impacted by lack of access to the internet and lack of confidence engaging online 38

coincide with the 13 broad population groups identified by the Justice Project Final Report as experiencing most disadvantage in accessing legal services. 39

As illustrated by the recent Robo-Debt example, 40

automated decision making tools can even further entrench inequality for vulnerable groups.

While a hyperconnected reality offers new possibilities to consumers seeking legal solutions, unless it is extended to all and concerns are addressed, we risk missing an opportunity to substantially increase access to justice. B

Endnotes 1 Ashley Unitt, “10 Trends Changing Customer Expectations” https://www.vonage.com/ business/perspectives/10-trends-changingcustomer-expectations/ 2 Mirielle Hildebrandt, Smart Technologies and the End(s) of Law, (Edward Elgar, 2015),42. 3 Luciano Floridi, “Introduction”, in Luciano Floridi (ed), “The Onlife Manifesto. Being Human in a Hyperconnected Era” (Springer, 2015), 1. https://link.springer.com/content/ pdf/10.1007%2F978-3-319-04093-6_1.pdf; Hildebrandt, above n 2, 42. 4 Brett T Sullivan, “Packaging Legal Services as Products” Lucent Law PLLC, 2016 https://www. slideshare.net/GregMcLawsen/packaging-legalservices-as-products 5 Salesforce Research, State of the Connected Customer (2nd ed, 2018) https://www.salesforce. com/research/customer-expectations/# 6 Virginia Eubanks, Automating Inequality. How High-tech Tools profile, Police, and Punish the Poor (St Martin”s Press, New York, 2017) p. 3 7 Jeremy Barnett, Philip Treleaven, “Algorithmic Dispute Resolution—The Automation of Professional Dispute Resolution Using AI and Blockchain Technologies”, The Computer Journal, Volume 61, Issue 3, March 2018, Pages 399–408, https://doi.org/10.1093/comjnl/bxx103; 8 Shoshana Zubof , Surveillance Capitalism (Profile Books, London, 2019) 9 Julie E. Cohen, “Law for the Platform Economy,” U.C. Davis Law Review 51, no. 1 (November 2017): 133-204, 137 10 Cohen, above n.9, 136-7 11 See for example Zuboff above n 8 12 https://ardorseo.com/blog/how-many-googlesearches-per-day-2019/ 13 https://moz.com/beginners-guide-to-seo/whysearch-engine-marketing-is-necessary 14 https://support.google.com/webmasters/ answer/7451184?hl=en 15 https://www.practicalecommerce.com/WhatAre-Chatbots-and-How-Do-They-Work 16 https://bigdata-madesimple.com/how-dochatbots-work-an-overview-of-the-architectureof-a-chatbot/ 17 Zuboff above n 8 18 Wardell, K 2009, “From caveman to casebase:

the evolution of legal research through the technological age”, paper presented to the Australian Law Librarians” Association (ALLA) Evolution Conference, Darwin. NT, 2-4 September. Conference paper uploaded with the permission of the Convenor of the 2009 ALLA Evolution Conference https://epubs.scu.edu.au/cgi/ viewcontent.cgi?article=1014&context=lib_pubs 19 Wardell above n 18, 3. 20 Wardell above n 18, 4. 21 See e.g. Judith Bennett, Tim Miller, Julian Webb, Rachelle Bosua, Adam Lodders & Scott Chamberlain, Current State of Automated Legal Advice Tools Networked Society Institute Discussion Paper 1 April 2018, 5 https:// networkedsociety.unimelb.edu.au/__data/ assets/pdf_file/0020/2761013/2018-NSICurrentStateofALAT.pdf; 22 Richard Susskind, Tomorrow”s Lawyers. An introduction to your future (Oxford, 2 nd

ed, 2016)25-31 23 Aebra Cole, “Why Selling Products May Be The Future For Law Firms” Law 360 5 April 2018 https://www.legalmosaic.com/wp-content/ uploads/2018/04/Why-Selling-Products-MayBe-The-Future-For-Law-Firms-Law360.pdf; Joel Barolsky, “Legal products: A new trick for old dogs” Financial Review, 28 November 2019 https://www.afr.com/companies/professionalservices/legal-products-a-new-trick-for-old-dogs20191126-p53e32 24 Barolsky, above n 23 25 E.g. http://www.courts.sa.gov.au/Pages/default. aspx; http://www.sacat.sa.gov.au/; https:// civilresolutionbc.ca/ 26 Governatori, G., Idelberger, F., Milosevic, Z. et al. On legal contracts, imperative and declarative smart contracts, and blockchain systems. Artif Intell Law 26, 377–409 (2018) doi:10.1007/ s10506-018-9223-3, 384 27 Governatori et al, 384 28 E.g. docassemble https://docassemble.org/ 29 Richard Susskind, Tomorrow”s Lawyers (Oxford University Press, 2 nd

ed, 2017) 5 30 Productivity Commission 2014, Access to Justice Arrangements, Inquiry Report No. 72, Canberra, 641 https://www.pc.gov.au/inquiries/completed/ access-justice/report/access-justice-volume2.pdf 31 Chief Justice of Western Australia, Wayne Martin quoted in Productivity Commission above n 30, 6 32 Clayton M. Christensen, Michael E. Raynor & Rory McDonald, “What Is Disruptive Innovation?” Harvard Business Review December 2015 https:// hbr.org/2015/12/what-is-disruptive-innovation; Rebecca L. Sandefur, “Access to What?” (2019) 148 (1) Winter, Dædalus, the Journal of the American Academy of Arts & Sciences, 54 https://www. amacad.org/sites/default/files/publication/ downloads/19_Winter_Daedalus_Sandefur.pdf 33 Susskind, above n 29, xix 34 Christensen et al, above n 32. 35 Michael Zhang, The World”s First Digital Camera by Kodak and Steve Sasson, (PetaPixel, 5 August 2010) https://petapixel. com/2010/08/05/the-worlds-first-digitalcamera-by-kodak-and-steve-sasson/ 36 Deloitte, “Mobile Consumer Survey 2019”, https://www2.deloitte.com/au/mobileconsumer-survey 37 Australian Human Rights Commission, 8 A right to access the Internet, https://www.humanrights. gov.au/our-work/8-right-access-internet 38 Australian Human Rights Commission above n 38. 39 Law Council of Australia, The Justice Project 2019 https://www.lawcouncil.asn.au/justice-project/ final-report 40 https://www.abc.net.au/news/2019-09-17/ centrelink-robodebt-class-action-lawsuitannounced/11520338

A roundup of recent Society meetings & conferences

ROSEMARY PRIDMORE, EXECUTIVE OFFICER

20 NOVEMBER 2019 Meeting with the Attorney-General T he President, Amy Nikolovski, President-Elect, Tim White, Chief Executive, Stephen Hodder and Policy Lawyer, Anna Finizio met with the Attorney-General, the Honourable Vickie Chapman MP. Matters discussed included the appointment of Senior Counsel; the appointment of Judges to vacancies on the Supreme Court and the Court of Appeal; the Legal Profession Uniform Law; and the Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Bill 2019.

28, 29, 30 NOVEMBER 2019

Meetings of Law Society Presidents, Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the LCA

Amy Nikolovski (as President and also as Society appointed Director of the LCA), Tim White and Stephen Hodder variously participated in the above quarterly meetings, which were held in Canberra. Key topics of discussion included the 2020 Law Council President’s objectives; the ongoing review of the Australian Solicitors’ Conduct Rules; and various internal policies and governance and financial matters relating to the LCA.

2 DECEMBER 2019 Meeting with Labor Parliamentarians re foreign lawyers legislation The amendments to the Legal Practitioners Act 1981 (SA) to introduce regulation for foreign lawyers were discussed by Amy Nikolovski and Anna Finizio at a meeting with Mr Christopher Picton MP and the Honourable Ian Hunter MLC.

6 DECEMBER 2019 Meeting with The Hon. Irene Pnevmatikos MLC

The Society’s concerns with an amendment to the Labour Hire Licensing (Miscellaneous) Amendment Bill 2019, that sought to include “legal practice work” as part of the labour hire licensing scheme in SA were raised by Amy Nikolovski and Anna Finizio at a meeting with the Honourable Irene Pnevmatikos MLC.

11 DECEMBER 2019 Meeting with the Chief Justice

Matters discussed by Amy Nikolovski, Tim White and Stephen Hodder at their meeting with the Chief Justice included the appointment of Senior Counsel; the Society’s proposal for the introduction of mandatory Continuing Professional Development in Bullying, Discrimination and Harassment, and in wellbeing and resilience; and setting down fees. B

MEMBERS ON THE MOVE R etired District Court judges David Smith and Jack Costello have both recently begun practising out of chambers on 30 Market St Adelaide. Mr Smith is practising as a barrister and is available to conduct mediations and undertake general consulting work, while Mr Costello will focus solely on mediation work. Mr Smith can be contacted at: Davidwsmith5491@ gmail.com or 0402133323. Mr Costello can be contacted at: jack@costellojk. com.au or 0403795475.