Technology, Law and Legal Education

The Law Society of South Africa is hosting a discussion forum on the state of Information Communication Technology (“ICT”) relating to lawyers and the practice of law.  This critical discussion follows the ICT Policy Colloquium held on 19thand 20th April 2012.  The ultimate outcome of the latter policy discussion, facilitated by the South African Government’s Department of Communications, is to produce a White Paper on integrated ICT policy framework for South Africa by the end of the 2014/2015 financial year.  The Government Gazette Notice, issued by the Minister of Communications in April 2013, can be found here. [PDF]
With that in mind, there are a few important points to consider.  The use of information technology and new forms of communication are both widespread and pervasive. The legal fraternity, traditional by its very nature, has unsurprisingly been slow to adapt to the dramatic change in society and communication.  Hourly billing rates, intensive administration and an attitude that is determined to preserve the status quo will see many in the profession fade into obscurity or lose market share.
All professions must stay relevant and keep a nimble attitude if they are to survive the information age. There are many intelligent and experienced senior members of my profession calling for a complete overhaul of professional legal training and law school training.  It is in crisis, many will argue.  What crisis you may ask?  Well, at no stage in any formal legal curricula is any student taught formal skills relating to information technology, the influence of ICT on the political and law-making arena, privacy issues exacerbated by the immediacy of the platform and the increasingly prevalent global phenomenon of data protection.  Moreover, electronic research, case management, trial practice and a variety of other aspects relating to technology and law have, largely, been ignored.
You may find a young lawyer who has conceivably achieved great results in four or five years of university, served two years of articles of clerkship and has no idea about, for instance, the Electronic Communications Act or the Protection of Personal Information Bill (soon to be an Act).  This is dangerous for both the lawyer and his/her future client.  Electronic communication is now a way of life.  Facsimile and more traditional means of communication are being relegated to secondary forms of speak.  We are transforming as a society and collectively we are doing so globally.  The practice of law, and any professional field is becoming an international, electronic endeavor and all lawyers should, at the very least, be superficially familiar with the ICT environment and seek to adopt a multi-disciplinary approach.  It is, in my view, the only way forward and institutions such as the American Bar Association have recognised this by amending professional rules of conduct to cater for the change in communication methodologies.  
To its credit, the LSSA leadership recognise the need for a change in attitude and are facilitating a variety of discussions relating to law and technology.  However, there is much to be done.  The state of our electronic communication jurisprudence is but embryonic at this stage.  Electronic signatures, definitions of electronic messages, electronic evidence, electronic court filing systems and many other aspects must be critically debated, and in many cases, amendments to the law must be made or new laws introduced. The key elements of the Internet’s success are the immediacy and efficiency it offers; lawmakers and policy-makers must not be left behind in the dust.
It does appear as if all parties are starting to row the boat in the same direction.  That is gratifying as it would be shortsighted in the extreme to overlook the burgeoning technological revolution.  Digital is upon us and we must act now or face the possibility of a profession and society without the necessary skills and even worse, a society without applicable or appropriate legal mechanisms to facilitate the efficiencies that technology can bring. 

A caveat with all this technology mumbo-jumbo; technology should never be adopted for technologies sake.  The primary rationale must be to drive efficiency and, ultimately, produce quicker, more profitable results.  Often, in my experience, many corporates or institutions implement ICT or forms of technology for the sake of checking a box and appearing relevant, or on the cutting edge.  The result with instances such as these is a haphazard, ad hoc approach that creates room for error, more manual administration, frustration and very little efficiency. The moral of the story: adopt technology, but do so with a holistic, pragmatic view.    

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