Distributed legal work: privacy and openness

It appears at least possible that one of the lasting effects of the 2020 pandemic will be to catalyse the trend towards enabling legal services professionals to do more of their work away from physical hubs such as offices and courts.

This article discusses a couple of information topics to think about as we grapple with the new reality.

Broader tensions

Two of the realities of modern life are that

1. Information has never been easier to publish, but the challenge for the ordinary person of separating signal from noise has in many ways increased compared to just a few decades earlier.
2. Greater legal protection is, in theory, available today against the misuse of private information, but the underlying threats have also hugely increased over the last couple of decades. Practical management of the risks has in many ways failed to keep up.

Openness and privacy as elements of the rule of law

In legal work, these broader realities intersect with two fundamental elements of the rule of law.

1. One element is that the law should be publicly available. This requires not just the publication of formal legal rules and powers, but also that there should be meaningful public access to how these rules and powers are interpreted and applied in reality by the courts and other organs of state. In practice, this latter point is limited by the fact that it is very cumbersome to extract information from legal materials and even more so to attend legal hearings.
2. The other element is that the privacy of legal advice must be protected so that such advice can be confidently obtained and candidly given. Otherwise, citizens cannot practically find out where they stand legally and the rule of law is diminished. In common law countries, this idea is given effect under the legal jargon of ‘privilege’ whereas in other countries the more straightforward term is often ‘professional secrecy.’

Properly balancing these notions of openness and privacy is important if the rule of law is to have any real meaning. It’s possible to strike the balance in different ways, and even the briefest comparison of sophisticated modern legal systems (say, English and German law and court procedures) will show many such distinctions.

Nevertheless, some common challenges and themes will arise for all legal systems as a result of the acceleration in distributed working.

I’ll now discuss two of these.

Court hearings using video technology: how ‘open’ should they be?

One such challenge relates to court hearings. The starting point is to recognise two established realities.

• One is that, since the nineteenth century, technologies such as printing, typing and word-processing have persistently increased the reliance on written materials in court proceedings.
• The second reality is that oral hearings still command great importance in court processes. Typically, this is greater in common law countries but it seems to have been found desirable in courts generally for there to be an opportunity for examination of witnesses and for an exchange between judges and parties’ representatives which is more fluid than can be achieved in writing. It is also widely recognised that most such exchanges ought usually to occur in public in the absence of some special reason. However, the theory of open access has in practice been limited by the need to attend in a court room at the relevant time or, in some systems, by the ability to pay for a written transcript.

The recent widespread adoption of video call technology to handle court hearings raises really important and difficult questions as to how to handle the resulting video records. Should they be live-streamed? Should they be recorded? Should they be made available for NLP and other analysis in ways that may, over the coming decades, make clear that the likes of Lex Machina and Solomonic were just the beginning?

If openness is reduced compared with the current realities, what will be lost from the rule of law? If openness is increased, how will litigants react, e.g. more arbitration, more claims designed to cause public pressure rather than to advance a legal case? What will the observer effects be on lawyer conduct? What are the implications for lawyer development?

And if private companies are permitted to analyse such hearings and sell the results, should we be worried about the possibility of the litigation process being tilted even further in favour of the wealthy? Or is that an absurd thing to take into account given that the legal playing field has never been level anyway? Alternatively, should the data just be made open on the basis that this gives the best chance of businesses emerging which can make use of it to create a less unequal playing field?

These are difficult, subtle and complex issues. They require a proper debate, ideally involving more than the usual interested parties (judges, lawyers, media and technology companies).

Privacy / confidentiality

A second challenge relates to meeting the expectation of clients that their private affairs will be kept confidential by their lawyers.

Even today, this is not always observed, as anyone will know who has heard lawyers chatting about clients and cases to each other in trains and restaurants, or seen them working on sensitive material on laptops which can be easily read or photographed by someone nearby. And that’s before one even gets to the less visible issues of information security.

I don’t think these concerns should be a blocker to more distributed ways of working. Indeed, quite the opposite: removing train commutes from many lawyers’ daily lives would in reality enhance protection of client confidentiality.

I think an aspect of the future is likely to involve more lawyers working more often from co-working spaces (WeWork debacle notwithstanding). Irrespective of that, however, I would hope that more systematic attention to these issues will be given. Lawyers will ideally be trained in more practical ways to protect information.

Providers of working space targeted at lawyers who consider these issues properly should find a solid opportunity. Suffice it to say, in my view, the typical co-working space of today, with inadequate numbers of badly soundproofed call rooms, isn’t going to cut it.

In conclusion

These thoughts are deliberately inconclusive. The point is that the move to more distributed forms of working in law raises some important issues in this area, and some real risks, but also perhaps an opportunity to improve the rule of law if approached thoughtfully.