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Darcy Campbell, c3260213

Bot legal assistance technology and its implications upon access to justice and legal professional ethics. Lawtech refers to the use of technology to provide legal services. New technologies are increasingly being adopted in the legal profession to support, supplement or replace traditional methods for providing legal services. Artificial intelligence is a branch of computer science concerned with the building of smart machines capable of performing tasks that typically require human intelligence.1 Advanced AI tools are beginning to automate the tasks previously performed by legal professionals. A ‘bot’ is an example of such technology. While bots are not expected to replace legal assistance providers all together in the future, they are sure going to upset the status quo of the legal services market and create future ethical dilemmas which the legal profession must contemplate.2 Bots are like robots, constructed of software. They accomplish tasks on the internet which they have been programed to accomplish, acting as autonomous agents. Bot’s are not unique to the legal industry.3 In general, bot technology provides users with an instant messaging conversation interface which gathers important client information. The bot then processes the information, filtering the data through a database of rules and logical and casual connections and ultimately provides clients with a customised information tailored to the user’s needs.4 DoNotPay is an example of a ‘bot’ program operating in the legal market. DoNotPay is a bot created in 2015, operating in the United Kingdom and the United States which began as a service assisting users challenge parking tickets. Since its beginnings more legal actions have been added to the bot’s offerings. The app also helps users obtain green cards and visas, search for class actions settlements you are owed, fight credit card and overdraft fees, sue tech companies for data breaches and collect money from hotel and airline bookings. DoNotPay attacks the legal service market at a specific angle. Exploiting the bureaucratic process and codified rules which surround very simple low-level civil legal matters like applying for housing assistance or challenging parking fines. For the disadvantaged members of the community such legal disputes represent a significant hurdle to be overcome, and when the needs of the needy go unsatisfied in relation to access to justice, justice has been denied. DoNotPay is not the only bot providing legal services in the market. In 2016 LawPath released Lexi, a bot capable of creating privacy policies and delivering user specific privacy 1 Stephan Middlebrook & John Muller, Thoughts on Bots: The Emerging Law of Electronic Agents (2000), Business Lawyer ABA 56(1), 343-350.

2 3 Ibid. 4 Judith Bennet et al, Current State of Automated Legal Advice Tools (2019), The University of Melbourne; Stephen Middlebrook and John Muller, Thoughts on Bots: The Emerging Law of Electronic Agents; Edwina Rissland, Artificial intelligence and Law: Stepping Stones to a Model of Legal Reasoning (1990) The Yale Law Journal 8, 1957 – 1981.

Darcy Campbell, c3260213

policy information to clients. A distinction can be drawn between bots created to automate the role of legal advice, like those referred to previously, and those created to assist lawyers who are practising. Conveybot, is a bot owned by the UK firm Convey Law. The bot has the ability to engage with clients, provide instant free quotes and then arrange follow-up conversations. There assist many other bot programs assisting lawyers by automating process important to legal practise such as booking appointments, billing clients, conducting legal research, receiving payment and interviewing clients.5 DoNotPay is a special form of bot as it offers assistance to people in situations where purchasing legal advice is unusual. Low importance civil legal matters are not the type of matter one would engage a lawyer over. Why? There exist financial, psychological and physical barriers which people first have to overcome before they can engage legal advice. For the legal disputes which DoNotPay offers its services, people do not consider them imperative enough to overcome the barriers blocking them from seeking traditional forms of assistance. DoNotPay is challenging the gap which exists between the unmet need for civil legal services and the resources available to meet that need. 6 The further introduction of services like DoNotPay into the legal service market is undoubtable going to cause major disruption, which is predicted to dampen the roadblocks preventing access to justice which plague the current market, especially for those burdened by disadvantage.7 People who experience disadvantage often fall through the cracks of the Justice System for a myriad of reasons, which include: financial barriers; psychological barriers; educational barriers and location barriers. These barriers mean that those suffering from disadvantage are significantly more likely to ignore their legal problems, and take no action. Those who take no action receive the poorest outcomes.8 As of 2018, a significant portion of the Australian community were unable to access Justice. Underfunding and extreme pressure placed upon the legal system resulted in a system within Australia unfit to supply legal aid to disadvantaged Australians. 14 percent of the population live under the poverty line, yet legal aid representation is only available for the eight per cent of Australians. In 2015-16, nearly

5 Bennet (n 2), 10. 6 Drew Simshaw, Ethical Issues in Robo Lawyering: The Need for Guidance on Developing and Using Artifical Intelligence in the Practise of Law (2018) 70(1) Hastings Law Journal, 179; Steph Wilkins, DoNotPay Is the Latest Legal Tech Darling, But Some Are Saying Do Not Click, Evolve The Law (webpage, 29 April 2020) < https://abovethelaw.com/legal-innovation-center/2018/10/12/donotpay-is-the-latest-legal-tech-darling-but-someare-saying-do-not-click/?rf=1>. 7 Daron Acemogly and Pascual Restrepo, Artificial Intelliogence, Automation and Work (2018), National Bureau of Economic Research.

8 Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia Law, Justice Foundation (2012), 159.

Darcy Campbell, c3260213

170,000 people were turned away nationally from community legal centres. 9 In 2018 a survey conducted by the Queensland Law Society looked at the legal profession’s view on the state of access to justice in Queensland. The results revealed that 74 per cent of respondents found that legal services were unaffordable in Queensland.10 How does DoNotPay diminish the barriers regarding accessing justice? Like all bot technology the tool is automated, instantaneous, and online. This means the tool can be accessed anytime from anywhere with an internet connection and that the service is standardised, reducing the risk that the service wont be what users expect. DoNotPay is a subscription service, costing subscribers three dollars (U.S) a month. The flat fee means that the ambiguity surrounding the cost of legal advice has been striped away. The service is very affordable and represents a low risk solution compared to traditional legal advice. Universally, what is preventing bot technology from being more effective is the fact that the tool requires an internet connection and is only available to assist people in limited number of legal areas. As AI innovations progress into the future bots like DoNotPlay will expand the the issues the platform will service11. In 2017, DoNotPlay began exploring the possibility of helping refugees seek asylum and file immigration applications in the United States and Canada.12 Another limitation of AI is its inability to take into account information beyond the observational data that it has at its disposal. Legal practitioners are taught and required to exercise independent professional judgement and render candid advice. This might involve referring to other considerations outside of the law such as moral, economic, social and political factors, that may be relevant to the client’s situation.13 The practise of professional judgement may be marginalised if AI is adopted. Lawyers generally are not provided with formal AI technological training. Therefore, the bot systems and services which lawyers may interact with are not understood generally by the legal profession. For instance, client confidentiality increases in complexity when it is not common knowledge held by lawyers or regulators how cloud system sharing technology works and its vulnerabilities.14

9 Law Council of Australia, The Justice Project: Final Report (2018), 20-36. 10 Queensland Law Society, Access to Justice Scorecard: Evaluating access to justice in Queensland (2018), 10.

11 Clifford Chance, Artifical Intelligence and The Future for Legal Services (webpage, 30 April 2020) .

12 Simshaw (n 3) 176. 13 American Bar Association, Model Rules of Professional Conduct (2016), r 2.1; The law Society of New South Wales, Solicitors’ Duties to Clients (Webpage 30 April 2020) . 14 Emily Poppe, The Future Is Complicated: AI, Apps & Access to Justice (2019) Okalahoma City Law Review 72(1) 185-212.

Darcy Campbell, c3260213

The development of bot technology offering legal services is not without ethical challenges. Within many jurisdictions, like New South Wales, a distinction is drawn between providing legal information and providing legal advice. The later reserved only for licensed practitioners. As legal bot’s continue to expand their services and sophistication courts or regulatory bodies will at some point have to decide whether such services constitute the unauthorised practise of law. From a deontological ethical perspective, the professional practise rules which limit the authority to give legal advice to licensed legal practicians is a rule which must be respected. They represent a maxim which must be obeyed. 15 Providing legal advice establishes a fiduciary relationship between the provider and the client, which creates many legal duties for the person whom the trust is placed. Restricting the practise of law to licensed professionals, who have been properly trained, understand and are prepared for the responsibility and challenges of the service, ensures that those seeking legal assistance will be provided with a high quality service which will satisfy the standards demanded by the fiduciary responsibility.16 However, this rule serves the ultimate moral obligation of a lawyer, which is to the court and facilitating Justice in the public interest.17 A modern-day deontologist would reject universal maxims, instead view that ones agent-relative position will indicate whether an action is ethically based on the moral agent’s specific relationship to the principle. That is to say that because the responsibility to ensure justice is achieved is paramount it should therefore be treated as paramount, and all activities are considered ethical to achieve this principle objective.18 Therefore, impeding the development of bot legal could be viewed as unethical in light of their potential to contribute to the achievement of the law profession’s main objective.19 Alternatively, the problem could be analysed with a utilitarian perspective. Reflecting upon the current status of the legal justice divide experienced in Australia, the United States, the United Kingdom and other areas of the world, the introduction of bot technology is dramatically increasing the accessibility of legal assistance which is in dire need of improvement. It could be argued that the narrowing of the justice gap would prove a net benefit to the state of the Justice system, despite the quality of the legal assistance provided being reduced due to the inability of AI to provide the robust service of traditional practitioners. Of course the inverse might also be true. The introduction of bot legal services

15 Ysaiah Ross, Ethics in Law: Lawyers Responsibility and Accountability in Australia (Lexis Nexis Buttersworths, 6th ed, 2014), 30. 16 Ibid, 53-69. 17 Ibid 36. 18 Ross (9) 30 [2.45]. 19 Simshaw (n 3) 188.

Darcy Campbell, c3260213

may diminish the quality of legal assistance to a level which the amount of coverage provided does not make up for the drop in overall quality occurring as a result.20 The tension which exists with regard to improving the quality of justice provided today and in the future make it necessary that the legal bot technology is rigorously scrutinised and services provided are measured against the current requirements of legal practitioners, and that bot technology providers, lawyers, firms, bar associations and legal ethics oversight bodies initiate a discussion regarding the ethics of these services and the development of guidelines to ensure that those seeking legal assistance are protected. Introduction of black letter law regulating bot technology would be unwise. Strict legislation or common law regulation developments suffer from being reactionary, slow and quickly outdated when applied to technological innovation. The introduction of a set of enforceable guidelines would be an adapt approach to getting ahead of the bot law service revolution. The Australian Privacy Principles (APP),21 created a principles-based approach to protecting individual privacy, imposing obligations upon entities which extract user’s personal information. The guidelines were technologically neutral, ensuring the principles were flexible and capable of adapting to technological changes. I consider the APP as potential inspiration for the development of law bot technological guidelines to ensure developments in the bot law service market remain ethically sound, while not stifling innovation.22 I consider the introduction of bot technology as necessary innovation needed to invigorate the market for legal services which is especially lacking in the areas of small civil disputes and for those suffering disadvantage. However, letting innovation in the market develop freely increases the potential for the services provided to develop into a form ineffective for providing Justice. I propose that the guidance and direction be required to ensure that the bot lawyer bot ultimately share and reflect the ethically responsibility delivering legal assistance demands.23

20Ross (n 9) 29; Simshaw (n 3) 183. 21 Privacy Act (Cth) 1988. 22 Benjamin Barton and Deborah Rhode, Access to Justice and Routine Legal Services: New Technologies Meet Bar Regulators (2018), Standford Public Law Working Paper; Office of the Australian Information Commissioner, Australian Privacy Principles (web page, 29 April 2020) .

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