Kenyan Perspectives on Emerging Technological Innovations in the Legal Profession
Legal technology is a growing sector in Kenya and organizations such as the Lawyers Hub, Hague Institute for Innovation Law, Africa Legal Technology Network and the Law Society of Kenya (LSK) have taken the initiative to provide a platform to discuss the nexus between technology law and policy in a bid to enhance technological innovations in the sector. My recent article, “Emerging Technological Innovations in the Legal Profession and Its Impact on the Regulation of Market Competition: Kenyan Perspective,” was informed by the conflict that arose in 2018 between LSK and the Ministry of Lands in Kenya against the automation of the land registry. The LSK argued that automation of land registry was in contravention of the law, as conveyancing is a reserved task for lawyers in accordance Section 34 of the Advocates Act. Further there was no law to back e-conveyancing in Kenya.
The reaction of the LSK is a clear indication that the legal sector in no longer immune to technology innovations. In 2008, Susskind warned that successful lawyers in the future are those who will be willing to embrace new technologies and novel ways to source legal work. While the legal market may not be disrupted as a whole in the strict sense as encapsulated by Christensen, the increasingly informed tech savvy client base, the unbundling of legal services, online service delivery and the application of new technologies in the legal profession such as big data, artificial intelligence, block chain and automation of data has to some extent partly disrupted the legal profession.
In addition to identifying the opportunities that technological innovations in the legal sector create, I examine the regulatory concerns such as: regulation of unlicensed legal services providers; price regulation; data protection; professional competence; liability of the legal startups; the interaction of legal services innovation with professional regulations; the implications of the current legal profession on market competition; and the role of competition authorities in enforcing competition in the legal market.
For a long time, the legal profession has enjoyed exclusivity in the provision of legal services through stated and self-regulation justified on consumer protection and the quality of the services. However, this position is bound to change as the entrance of legal technological innovations bring with them competition that is affecting the way the legal market operates. In response and in a bid to maintain the market share and revenues, lawyers may engage in conduct that undermines competition and innovation.
Anti-competitive conduct may present itself in the adoption of strict rules that bar the entry of legal technological innovations in a bid to maintain monopoly. According to the European Union anti-conduct may include ‘price fixing; recommended prices; advertising regulations; entry requirements and reserved rights; and regulations governing business structure and multi-disciplinary practices´. The objective of this article is to rethink whether lawyer’s monopoly should be justified in the era of technology.
I recognize that, indeed, there has never been a market inquiry by any competition agency in the world to identify how technological innovations interact with the rules in the legal profession and the competition they bring with. I argue that lawyer’s exclusivity to provide certain reserved tasks should be justified in law.
I recommend the need to: review the legal regulatory framework to reflect the changes shaping the legal profession in the legal market in the era of technology and consider whether justifying monopoly goes beyond what is necessary to protect consumers and thus impose disproportionate costs or restrictions on regulated legal service.
As a result of the competition that technological innovations bring with them, competition agencies at the national and regional level must be on the lookout and carry out market inquiries in the legal market. This includes the need for legal reforms in the wake of technological innovations in a bid to ensure the compatibility of the current legal framework with competition law.
I also recognize the court as an important participant who must prepare to address disputes that may arise between legal regulatory bodies and the operations of the technological innovations. The jurisprudence and the development of law in this area is already developing in the US as a result of the presence of online legal service providers such as LegalZoom, Rocket Lawyer a Pangea3.
Vellah Kedogo Kigwiru, Technische Universität München and University of Narobi