Canadian Lawyer

18 S E P T E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m This question usually comes up in the context of e-discovery and whether the tasks performed by document review- ers are legal work requiring a licence to practise. The stakes are usually whether or not a reviewer is an employee or a pro- fessional services provider. In the most well-known U.S. case involving David Lola — a reviewer seeking overtime pay that would not have been payable if he were deemed to be practising law — both parties agreed that an individual who undertakes tasks that could be performed entirely by a machine cannot be said to engage in the practice of law. That seems entirely reasonable with ironclad Vulcan rationality. Let's then extend the reasoning to com- panies themselves who are nothing if not legal persons, as taught in first-year law school. Consider those that offer legal ser- vices by relying on technology to synthe- size and package data without any com- mentary, editorial or advice. Through our work at LegalX, we see many companies that have a product using data science in the following way: A body of unstructured, open-source data is accessed, perhaps a cache of case law or court records, for example. A combination of machine learning or artificial intelligence is used to review the data and synthesize an analytical outcome based on search criteria entered from an end user. The end user interprets or decides what to do with the results. The above steps could assist in deter- mining what a reasonable settlement amount might be in a family law case, a civil personal injury case or any area where a body of decisions is available, and awards are typically granted on an established set of criteria. In many areas of law, outcomes are determined by tables, regulations and ranging guidelines and not just an evolving body of subjective case law precedent. Nowhere in this scenario is work being provided by anything other than a machine. At most, and not necessarily as a requirement, perhaps lawyers helped design the questions to be answered on the front end, but they are not called upon to "exercise legal judgment" in determining the outputs. If there are 15,000 cases that can be whittled down to three similarly situated scenarios based on search terms or even a narrative posed question, the settlements — including division of assets in family law cases — are simply a matter of algorithm and/or data extraction. That's not subject- ive legal advice, that's mathematical reality. Yet, regulatory bodies, especially in Canada, would at minimum seek to investigate whether that was in fact the unauthorized practice of law — meaning work that should be completed either by a law firm or individual lawyer. We know that these types of investigations are taking place. What we don't know is whether they will actually be dispensed with in a timely fashion. Hopefully, the law soci- eties and U.S. bar associations are more concerned with actual behaviour such as breach of trust rather than low-priority investigations attempting to determine if technology-led service providers are acting as lawyers. There is likely no bad faith when law societies and U.S. bar associations are ou might be forgiven if you are tired of hearing about machines versus law- yers, but the topic, much like our future robot overlords, is not about to be put to rest. Similarly, the definition of legal work and the practice of law are subject to more scrutiny than at any prior time in the history of the "profession" (air quotes intentional). As self-governing guilds, law societies and U.S. bar asso- ciations (which aren't really regulators) are being confronted with uncomfortable questions requiring clear answers to plainly laid out (non-virtual) reality. If a task can be completed entirely by a machine, is it the practice of law? T E C H S U P P O RT Y O P I N I O N @aronsolomon @jasonmoyse Let the robots help the public When the profession restricts the use of technology in legal services, whose interests are being protected? By Jason Moyse and Aron Solomon

• Cover