The European Commission is concerned at the take-up of electronic commerce in the EU.Despite so many people buying flights, books and groceries online, e-commerce makes up less than 2% of EU total retail trade. They want to increase that figure by removing obstacles to online purchasing. To this end, they have just published a consultation document to find out how performance can be improved.

You might think that this has nothing to do with lawyers. But they have the legal profession in their sights. One of the prime audiences for this consultation is ‘the regulated professions, in particular pharmacists, lawyers and magistrates’.

The questions related to the legal profession make clear where they intend to develop policies for the future. They ask consumers and others (in the jargon of the 2001 E-commerce Directive): What information society services provided by the regulated professions are you aware of or do you have access to? Are you aware of which types of commercial communication practices are undertaken by the regulated professions (communication on fees, on specialisms, etc) in one or more member states or at European level? For which regulated professions? Are you aware of codes of conduct covering on-line commercial communications for certain regulated professions in one or more member state(s)? What are, in your opinion, the obstacles to the development of codes of conduct for online commercial communications for regulated professions at European level?

As its readers know, the Gazette is full of articles about the impact of technology on legal practice. But, curiously, our profession has suffered only surface changes to its traditional ways of practice. We all use computers and smartphones, but the basic mode of delivery is more or less as it always has been. It seems that now is the moment when the profession is on the cusp of great change. At any rate, the Commission is keen to push us over the edge.

The questions aimed at lawyers are targeted as much at their regulators. This leads to my main point, which arises out of the Commission consultation. Regulators have a duty to look at their current models and see whether they fit the future coming so swiftly down the tracks. In other words, does their current vision for the future practice of law encompass some of the technological changes, which, for better or worse, are about to transform us? Here are some of them:

  • As happened with manufacturing a generation ago, jobs in the legal services sector are being exported eastwards, through greater mechanisation and cheaper labour – otherwise known as outsourcing. When a car is made in the east and then bought in the UK, there are not the same problems as when a legal service produced in the east is delivered here (confidentiality, client consent, conflicts of interest, competence and so on);
  • As we see in the fuss over lawyer-rating sites, access to consumer-driven information – think Tripadvisor in the travel sector - is about to hit us, which will empower consumers in their choice of lawyer. Should free speech trump everything other than the libel laws, or should there be some regulatory structure (impossible to implement on the internet)?
  • The economic model of an office-based law firm will doubtless be undermined by that of the virtual law firm: website, e-mail, proof of electronic identity, cloud computing and video-conferencing will allow lawyers to stay at home and undercut the accommodation expenses of those stuck in offices. Again there are many regulatory challenges, if only because the lawyer can be situated anywhere in the world without an office or physical files that can be investigated by a regulatory visit.
I am aware that the future does not always turn out as we think. Nor does all of this follow from the Commission’s much more modest encouragement of the profession to use online legal services more often. But we see in our daily lives how the accelerating pace of the use of technology is shifting the ground from under our feet. It always takes a few decades for big changes to reach the legal profession. It seems that they are now about to hit us, and regulators should be prepared. A new vision is required from all of us.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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