The Traditional In-house Counsel vs The Age of Technology, Online Forms and Outsourced Legal Services By John Demide Esq
Introduction
Most people would say that the experience displayed by a counsel engaged in conversation with a client, is the fulcrum of the brief being the basis upon which a firm secures a client . However, it goes much further than that. In the face of this pandemic, the legal profession and indeed other service-based industries have been thrown off the deep end into a culture shock and as such business processes have had to be reviewed and, in some cases, re-invented to accommodate the new realities we have been thrust into.
No doubt, long before now, the legal services industry has had a developing standoff with regards to the assimilation of technology into legal practice processes with the arguments being put forward as to what role technology can play in the advancement of law and its practice. It has had to fight its way into prominence and relevance beyond being a means to project thoughts (i.e. through power point presentations and word processing software), through the facsimile processes (i.e. telegram, fax and email transmissions) through to its products being subjected to stringent principles of interpretation to see to their admissibility in court as substantive forms of evidence (i.e. electronic receipts having being generated online following new modes of acknowledgement of payments and other similar documents). The Evidence Act 2011 opened up the flood gates to accommodate electronically generated evidence in many ways considering the fact that we have moved into an era where the electronics highway has come to define how commerce and everyday relationships are conducted. Section 86(4) for instance states that where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest…The list goes on and on. Technology cannot be dispensed with in the active performance of the legal practitioners daily duties.
The Role of Technology in the Evolution of Legal Practice
Through it all, technology has been the midwife of the practicing lawyer and the firm, nursing it from the narrow and treacherous terrain of client on-boarding to document generation through to storage, transmission and eventual archiving and retrieval to mention just a sliver of the options available.
The average Nigerian lawyer looks up to the notion of automating the on boarding process as a matter that requires an interpersonal engagement rather than it being outsourced to an intangible system or process. The practice of a small to medium styled boutique law firm that deals in a crossbreeding of practices has a process that is purely operating on a basic anomalous notion that most office processes do not need to be automated. This has set some practices in the face of this pandemic down a path of irrecoverable breakdown due to their lack of forward planning and innovations.
On the other hand, there are some forward-thinking climes that had foreseen the future of practice and begun to migrate from the traditional mode of operations to the practice mode of the future (i.e. virtual operations) and this was all made possible by the incorporation of technology and virtual-automation into the everyday processes of a firm and businesses alike.
The age of the automated Office and Online Legal Documents
The work of legal practitioners involves a high level of documentation and information processing, storage, and retrieval. The information intensiveness of a lawyer’s responsibility is such that tools and technologies that would speed up the documentation, management and information handling are not only important but professionally necessary. The value of accuracy, correctness, completeness, relevance and timeliness are characteristics of information which ICT systems do generate to meet lawyer’s information needs[1].
With the inset of various legal service software and the advent of the Search Engine Optimization (SEO) algorithms online. Indeed, the practice of law is poised for a new dawn and the Nigerian Lawyer is open to becoming a candidate for extinction level events of becoming obsolete. Thus, because of losing clientele to the new competition that have no physical form but can equally give a satisfactory level of service which hitherto could only be gotten from the four walls of a firm strictly speaking the 21st Century lawyer must as of necessity hit the ground running.
The mainstreaming of technology into their processes if they seek to still remain relevant in the coming years is the way to go looking forward. A Case in view can be the Nigerian Corporate Affairs Commission. Only recently, the Commission had its act amended to introduce automated processes to declutter the commission and optimise their output/service delivery. This has led to the massive deployment of resources to upgrade its online incorporation process, which hitherto were done solely by the staff of the commission. Now, all an accredited agent (lawyer, accountant etc) or prospective customer needs to do is get online, create a profile and the doors of the commission and the customers’ wallet are open for business. Of course, this novel process for us is not bereft of its challenges, but those are expected whenever a new system is introduced for mass-access in Nigeria, but it does not mean failure.
This is a process that the traditional lawyer must take into consideration if they seek to set themselves aside from the pack. Knowledge and skill acquired from practicing the law is no longer enough in the current competing clime. The ability to deploy your knowledge and services swiftly, precisely and satisfactorily is only assured through the engine chosen (i.e. technology).
Age of Advanced Legal Resource/Advice Location Online
The argument as to what weight could be given to the level of information secured from the legal information being circulated over the internet because of an SEO query from an inquisitive individual has been put to a lot of definitions, analysis, and counter analysis. Some lawyers have said that the personal touch of a lawyer cannot be dispensed with when seeking to draft, advise or to instruct in the appropriate legal remedies available to a client seeking redress. This is sadly as far away from the truth as can be imagined.
Experience is being quickly replaced by precedents and analogies that can be readily secured at a click of a button and dedicated data streaming. The era of hardcopy precedents being within the exclusive clutches of lawyers and law firms has been demystified with the advent of the internet. Thus, to say that a form secured online based on a specific query put forward by a potential client would not yield a document capable of satisfying the required needs of a client, does not hold weight.
Azinge (2002) identified five key areas of IT relevance to lawyers. The main points are summarized below;
- Internet Access To Judicial Decisions: with basic IT facilities like a personal computer, a dial-up or wireless connectivity, a lawyer can now access judicial decisions of the Supreme Court of Nigeria, and all the House of Lord Judgments. The same is applicable to the judgments of many United States Courts. Online legal databases like Lexis/Nexis and Westlaw are already a practical experience of legal professionals in developed countries.
- Electronic Communication: Digital technology provides the platform for lawyers to: transmit and receive messages from clients, colleagues and the court system; gain access to the internal know-how of the institutional memory of a law firm and provide access to information on specific subject matters.
- Documentation: this is a cardinal aspect of the legal institutions responsibilities. The legal process is undoubtedly documentation-intensive. Whether in drafting agreements for clients, or legislative drafting or litigations, preparing writs or even judges writing their judgments. Thus, asof necessity, every counsel needs to learn the ropes surrounding the generation and transmission of documents through computer consoles as the future is now in our palms as well as our systems.
- Litigation Support Service. Information technology is relevant to the lawyers’ management and control of the diverse documents which they have to master in order to advance and prepare their clients’ case. It relates to efficient use of IT systems for the efficient storage and speedy retrieval of such documentation.
- Collaborative Multi-tasking: IT system allows a lawyer to work on many documents simultaneously while at the same time downloading materials from the internet. He can copy and paste one document to another or from one section of document to another. Thus offering up more qualitative service to clients and cooperation between counsel, clients, courts and law investigation and enforcement institutions.
- Electronic Service of Processes: recently with the advent of the pandemic, the National Industrial Court issued fresh guidelines that could redefined the landscape of court proceedings, with the adoption of the submission of final written addresses on CDs for the purpose of digital viewing and quarantining processes to reduce the level of contact between judges and processes and to aid in curbing the spread of the vector. This innovation that has already been in use in our emails could come to be mainstreamed in the delivery of processes thus, eliminating the surrounding intricacies of physical delivery and arduous physical exertions.
The Nigerian Lawyer is open to so many resources out there on the internet clamouring to simplify the business of customers without them having to be bothered about the legalese surrounding for example a “simple contract”. These two-word keyed into a SEO will yield close to 1,000,000 results equipped with backing laws that guide their respective areas of application. If this does not signal the end of an era, this writer does not know what does.
Who is an In-house Lawyer?
The Black’s Law Dictionary[2], defines an In- house Lawyer as one or more Lawyers employed by a Company. Even though the wordings of the subject matter appear simple there is still difficulty in placing a definition on it. And to overcome the limitations associated with every definition, an in-house lawyer can be described as a lawyer employed as part of the internal employees of a corporate body, company and agency to perform legal duties. To say that every organization needs an in-house lawyer, is simply stating the obvious. The role of in-house lawyers appears to be underrated, even though they play a very important role in the proper functioning of the organisation which they belong to. In most cases, their functions are not restricted only to their professional duties.
The dynamics of business growth has continued to propel the need for in-house lawyers in corporate bodies and government agencies. As the business environment grows, so also is the need for such bodies to be proactive in their approaches to anticipating and solving likely legal problems. However, in the face of the burgeoning change that faces the Legal service industry, if the In-house lawyer refuses to adapt to the change, he will be replaced by binary code.
Where do In-house Counsel stand?
In the current state of things, in-house counsel (i.e. lawyers employed within an organization to give legal advice and review documents) are duty bound to sharpen up their skills and look to ensure that they put in their uttermost best to ensure that their employers are never caught out in the sun wondering If they can do without the unit.
In-house counsel are duty bound to seek out appropriate knowledge and tools that enhance their relevance within the system. Ted Lazarus[3] Google’s Legal Director when asked what the most significant use of technology he has deployed in the course of doing the business of law at google said that the ability to work collaboratively on documents, presentations and spreadsheets using cloud-based Google applications has transformed the way we do our jobs. Teams of lawyers exchanging ideas in real time, both with each other and with other functions, thus ensuring that all points of view are heard and efficiency maximised.
Significantly, Kerry Phillip[4] equally said that at Vodafone, the adoption of contract lifecycle management technologies to speed up contracting and give access to the wealth of data contained in our contracts has allowed the business to begin the process and only brings lawyers into the fold when the contract is new or different. Thus, freeing up their lawyers to work on much more creative and higher value-add matters.
Indeed one of the policy statements passed by the Nigerian Bar Association at the 2019 Annual General Conference was targeted at the quest to enhance[5] the technical skills of the next generation of lawyers in the areas of digital communication, foundational technologies, enabling technologies and transformational technologies, with tutorials by real players in computer and data science as well as statistics.
The idea behind organizations engaging in-house Counsels is to help reduce the attendant legal risks associated with the policies and transactions of a company. Though, some of the duties of an in-house counsel are essentially what an average lawyer does daily, there are some specific duties which are peculiar to an in-house Lawyer, especially as provided by the Rules of Professional Conduct for Legal Practitioners in Nigeria. The pattern of in-house counsel’s function put him at a vantage position to mitigate potential losses and several legally related multidimensional threats to the organisation.
Outsourced Legal Services
However, recently there has been a glaring push to outsource Soliciting processes usually done by in-house lawyers to foreign climes and much recently to virtual job sourcing sites. These are online sites where there is a pool of resources offered by people who do not necessarily belong to a firm, but provide their services through bids and allocated resources and they give equal service and in some situations higher quality services than what some in-house counsel provide.
This has thus set the pace for the alarm bells to ring. Some of these outsource sites are upwork, fiver to mention a few. These have been dismissed by lawyers as fads that will fizzle and die away. Not so a 2018 Freelancer Income survey released by American financial services company Payoneer shows that regardless of their own location, the freelancers surveyed serve clients from all over the world, many work with clients from more than one region. More than two-thirds of freelancers (68%) work for clients based in North America, and half of freelancers (51%) serve clients based in Europe. The Middle East and Africa are the smallest outsourcing markets[6] but are promising nonetheless.
Conclusion
The Nigerian Lawyer has to own up to the emerging revolution happening in his backyard and embrace technology as a necessary partner in development. It is no longer a tool for typing, but it is much more than that, it is a tool that facilitates efficient service delivery and diversification.
Moreover, in the wake of the invasion of various courts by hoodlums, particularly in Lagos and Delta States during the wave of the #EndSARS protest, where several court processes, exhibits, and other vital documents were allegedly vandalized it calls for a deep reflection and a desperate need for evolution and development in the administration of justice system in Nigeria by the actors, principally counsel.
The In-house lawyer has to become as proficient in the art of technology as he has become in the art of the law for which he is known. Use it to sharpen his wit and put him/herself in a position of relevance, showing that code(i.e artificial intelligence) can never substitute the quick wit and intuition of the tangible and visible lawyer.
[1] https://digitalcommons.unl.edu/libphilprac/662/Information Communication Techonology (ICT) Use as a Predictor of Lawyers’ Productivity J.E. Owoeye, University of Lagos
[2] 8th Edition
[3] https://www.legal500.com/gc-magazine/feature/new-tech-frontiers-and-the-in-house-counsel/
[4] Ibid
[5] https://nigerianbar.org.ng/sites/default/files/ /2020-05/ Policy Book of the 2019 ANNUAL GENERAL CONFERENCE OF THE NIGERIAN BAR ASSOCIATION
[6] https://techpoint.africa/2019/07/08/nigerian-freelancer-marketplaces/
[7] image credits from www.forbes.com – top 7 digital transformation trends in legal for 2019
