How to reconcile deontology and the duties of the profession with technological change and the demand for new services by customers?
Paulo Câmara, Managing partner of Sérvulo e Associados
Lawyers are bound by the fiduciary duty to serve the interests of their clients, which has several consequences also in terms of innovation. The first consequence concerns legal innovation. It is up to the lawyer to serve his client with the solutions that are supported by the law, of course. But it is also central to being on the front line of regulatory or jurisprudential developments. This allows solutions to be reached (namely of a contractual, transactional or litigation nature) that in many cases can be innovative, with important gains in customer service.
Second, we must mention the importance of technological innovation. The use of more refined technological instruments allows greater efficiency in the service provided - and to that extent directly serves the client's interest. Currently, with the post-Covid context, the profession has shown a high degree of preparation for teleworking and for the use of the most advanced computer tools. It follows that the pressure to digitize customer contact is very intense. However, this does not dispense the personalized attention and care given to each customer. Third, the fiduciary nature of the legal service has consequences for the way law firms organize themselves and how they structure the services offered to their clients. Here, too, we must seek innovative solutions, faithful to the purpose of each society and the way of better serving its customers. Finally, since we are talking about deontology and innovation in legal services, it is important to make it clear that the advertising rules about legal services that are in force today are anachronistic and that they would merit a serene and thoughtful but decisive review, in light of the national reality. and international profession.
Luís Barreto Xavier, Consultant for Innovation at Abreu Advogados
Duty of technological competence: About 38 of the 50 states that make up the United States have adopted a "duty of technological competence", which includes an ethical obligation to understand the benefits and risks associated with technology. In an article available on the American Bar Association website, Jim Calloway refers, among others, to the “risk of harming a customer due to a lack of [technological] knowledge”, the “risk of unintentional disclosure of information”, or the “risk of losing valuable customer data. ” Although this is not (yet) one of the deontological duties expressly set out in the Portuguese Bar Association Statute, it must be understood that the need for knowledge and use arises from the “duty of competence” provided for in Article 98/2 technological tools available for competent client sponsorship. 2 - Legal services and legal products: One of the issues that will certainly gain traction is the emergence of legal products, resulting from commoditization of the market, alongside legal services. This trend is associated with the emergence of new players, alongside law firms: law firms, consultants (especially the 'Big Four'), law tech companies. The tension grows between strictly restrictive regulation and market forces and customers' freedom of choice. 3 - “Lawyer in the loop”: with the spread of legal technology, there is a need for the intervention of lawyers in decisions and services supported by artificial intelligence or other autonomous systems.
Bruno Ferreira, Co-managing partner of PLMJ
They are reconcilable paths and their compatibility will be very beneficial for society in general, as it allows clients to continue to benefit from the ethical guarantees inherent in the services provided by lawyers. In fact, these services are not completely new, but an evolution of what was already being done, either by new means or with the collaboration of professionals who are already part of the societies. It is the advocacy of the future with a careful evolution and that allows to maintain the ethics guarantees. This reality places great demands on the sector, particularly in view of the core activity of a firm such as PLMJ - business advocacy - in which the degree of demand and sophistication of our clients requires us not only to live up to their needs but also to collaborate with customers in the development of alternative solutions and even to some extent challenge customers to seek new solutions.
João Miranda de Sousa, Partner at Garrigues
Digital and technological transformation has been a priority at Garrigues for years because it is not an option, but a necessary step required by our customers. That is why it is included in the strategic objectives of the office, and in a double sense: to seek a more digital approach to the services we offer and a more technological way of working. The reality is that the advent of technology and digital transformation help us to be better and to provide our services to customers more efficiently and with higher quality. We must not forget that new models and services will emerge in the legal industry and that it will be necessary to develop different skills to support our clients in their business needs. Therefore, what really matters is having a talented team that contributes new ideas every day and adds value to our customers in response to requests that they send us. This evolution and this technological innovation are not, and cannot be, incompatible with the duties of the profession, the observance of which cannot be dependent on the tools used by lawyers, or on the form of development of the activity. On the contrary, they can even bring very relevant technical contributions in areas such as the protection and safeguarding of information and confidentiality. In addition, a faster and more efficient response meets the client's interests.
José Luís Arnaut, Managing partner of CMS Rui Pena & Arnaut
João Leitão Figueiredo, Associate Coordinator of CMS Rui Pena & Arnaut
The rigor, efficiency and effectiveness required of lawyers today impose the use of disruptive technological tools, diverse including Artificial Intelligence. This, however, should not prejudice the fulfillment of the duties that constitute the bastion of the exercise of the profession, such as that of professional secrecy, competence and zeal and diligence. The use of innovative technologies to support sponsorship and legal advice should be seen as a means of freeing lawyers from worldly tasks and with less added value, creating the conditions to dedicate themselves fully to advising their clients. As lawyers, we must respect the spirit of the system and seek to balance the protection of clients with innovation in the provision of legal services, aware that the technology currently available, in particular that based on Artificial Intelligence, can understand risks to the fulfillment of ethical duties . The technological commitment of large law firms should also be accompanied by the Portuguese Bar Association, which should promote the conditions necessary for the modernization and evolution of the profession and, if necessary, proceed with the updating of the deontological regime. At CMS, the current five-year period is being marked by a strong focus on technologies applied to the provision of excellent legal services and meeting the highest demands of our clients. The use of collaborative work platforms such as Lupl, developed with the participation of CMS, was not, however, unaware of the challenges that the application of these new ways of working implies, in particular,
reconciling with the ethical principles.
Domingos Cruz, Managing partner of CCA
Technological change brings to companies the simplification and reduction of bureaucracy in processes and procedures and turns attention to the topic of cybersecurity and the need to create mechanisms that further protect the confidential information of law firms and their clients. In this sense, we have witnessed a deepening of the code of ethics with the reinforcement of the lawyer's duties and obligations mainly in matters of money laundering and financing of terrorism. Just last week, new legislation came out that reinforces the obligations of law firms in terms of preventing crimes of money laundering and financing of terrorism. This reinforcement of obligations may bring conflicts to the lawyer, or lead companies to divest in certain areas of the law, since two of the basic principles may be in conflict: i) the duty to professional secrecy; ii) the duty to report risk situations in the context of money laundering or terrorist financing. In order to adapt to these new requirements and ensure that all these new requirements that have been placed on us are met, a multidisciplinary committee was created to analyze and ensure that ethical duties are always fulfilled (conflict of interest, kyc and AML). The services that clients look for in a lawyer have been the same over the years - expert advice in a particular area of law. What has been changed is the way in which this service is provided and the speed at which it has to be provided.
Rogério Fernandes Ferreira, Managing partner of RFF & Associados
In 2015, IBM created the first robot (ROSS) to deal with internal legal issues and, with the use of artificial intelligence, included a database of jurisprudence and legislation that analyzes and answers several questions so far (only ) answered by (human) lawyers. In a human and social science such as law and in a highly regulated professional activity that deals with complex deontological and ethical (human) issues, the use of these new technological resources raises, however, on the one hand, issues of compatibility and articulation with various duties and the the need for increased sensitivity in the legal analysis and in the circumstances of the specific case that such technological resources cannot (yet?) promote. On the other hand, as many of the services, procedures and responses are normalized and formatted, various certification requirements will also inevitably emerge (which RFF already has, but which the vast majority of law firms, even international ones, are still distant. ), as is the case with information security (NP ISO / IEC 27001: 2013), quality management (NP EN ISO 9001) or, even, at another level, social responsibility (NI SA 8000).
Pedro Botelho Gomes, Director of JPAB-José Pedro Aguiar-Branco Advogados
Technological innovation forces lawyers to permanently adapt. But if the first phase of the technological revolution - related mainly to the procedural process - did not imply great ethical challenges, the phase that until recently took its first steps and that now - due to the pandemic - advances at cruising speed forces lawyers to be aware of the compatibility of technological changes with ethical duties. Remote work cannot be done without guaranteeing the confidentiality of communications. The digitization of documents does not dispense with effective computer security and data protection tools. The use of AI software that provides legal support work cannot eliminate the essential value that must govern the relationship between lawyer and client: trust, which can only be established between people. It is essential to assure the client that the advice he receives is the product of the labor taken care of by a lawyer, even if aided by computer programs, and not merely the result of operations carried out by an algorithm. Technological innovation is now proceeding at such a speed that sometimes there is no time to predict its real consequences. It is essential that lawyers do not fall into this error and that, when they intend to implement any technological change, analyze whether it is still compatible with ethics. If so, it will bring relevant benefits to the customer and will be most welcome.
Nelson Raposo Bernardo, Managing partner of Raposo Bernardo & Associados
Technological development cannot call into question the ethics and professional values of law; but they have to understand the reality and adapt, in a beneficial commitment for the exercise of the profession, for those who seek the services of the lawyer and for the society itself. There has always been technical and technological evolution, but there has also always been the capacity for ethical and deontological standards to reinvent themselves and fit the new requirements. Besides, it is not foreseen that the lawyer will be replaced by robots, there are intellectual skills, analysis and critical thinking, talent, creativity, intuition, relational capacity and empathy that a machine will never be able to replace or reproduce. Thus, I believe that it is not technological innovation that should be of concern, it is the use that can be made of it. To that extent, artificial intelligence and other technological advances are undoubtedly an important challenge, but at the same time, they certainly represent an opportunity to make the work of the lawyer more efficient, freeing him from simple and repetitive tasks, in a that he can take care of what is truly essential in his profession: the relationship with the client, personal intervention in his affairs, dedication to his problems, intellectual creation and the rest, this rest being immense and dependent only on intelligence and human capacity. It would be a case to ask, who today will miss looking for a certain law in dozens or hundreds of newspapers of the republic on paper, in the middle of thousands of pages, for hours on end, when the same information can be obtained, electronically, in few seconds.
Fernando Antas da Cunha, Managing partner of Antas da Cunha Ecija & Associados
We believe that innovation is not a trend, but an inevitability. It is not possible, nowadays, to be able to keep up with the pace that is required by our customers, without having help from technology. This inevitability is in no way incompatible with our ethical duties and with the obligations that emerge from our statute. In the construction of all these models and systems, there is a specific care in order to ensure, first of all, that the practical result of these technological tools is nothing more than a facilitator of the knowledge and culture of our office and of the work we do for our customers. Otherwise, technology and innovation alone will not work. There must be a perfect symbiosis between the lawyer and the technology so that it can, in fact, be an asset. As for other types of services that are requested by customers, we are apologists and advocates of multidisciplinarity, although with limits that have to be very well defined. We are absolutely convinced that the union of various specialties brings enormous benefits to customers and citizens, without jeopardizing the most important ethical values. In short, in any of these challenges there must be scrupulous compliance with the duties of our profession. For that, there must be rules and, much more importantly, a culture of seriousness and respect for ethical and deontological values.
Rita Maltez, Partner at Pares Advogados
The computerization of our activity has opened yet another door for access to information on our clients' subjects, which requires us to make an additional effort to choose and implement the appropriate technical solutions to protect this information, whether in its storage and transmission , whether choosing a reliable and technically safe support. The proliferation of breaches of security protocols and external intrusions on servers (even in the most armored and sophisticated), makes evident the difficulty of protecting the duty / right of professional secrecy and, therefore, the vulnerability of citizens' rights. In several forums where we have already seen the discussion of this topic, the suggestion of using the “analog” is regularly heard as an additional form of protection, for example, of communications between lawyers and clients. Pares has long devoted the greatest attention to the topic, either by choosing specialized service providers and platforms whose reliability is assured to us, or by the care in the way information is collected and treated, or even in the training and information of lawyers and employees. It should be borne in mind that, even before the new technologies existed, professional secrecy was often violated, whether by the lawyers themselves or by third parties. The reconciliation of our profession with new technologies, fundamental to the speed and efficiency that we imposed on ourselves in modern times, involves a rational balance between the (not so) new technologies and the frequent technological dazzle, and for ensuring that our customers are the ultimate beneficiaries of this balance.
Eduardo Paulino, Partner at Morais Leitão, Galvão Teles, Soares da Silva & Associados
Technological developments bring implementation challenges and lawyers are no exception. The last decades have brought scope and complexity to the provision of legal services, a great diversification in the type of support provided to clients and an increasing involvement in its activity, but also an exponential growth of sources and a dizzying pace of change, in the law and in the economy , requiring a superhuman capacity for updating. A lawyer must know much more than the law: he must know his client deeply, empathize with his problems, but also dominate the sector and the market in which the client operates. The new services force us to change, adapt and take the exercise of the profession in new ways. However, the essentials of the profession remain: lawyers exist because there are clients who seek them out so that they can pursue their legitimate interests and the practice of law presupposes respect for a wide and demanding set of duties towards clients and the community, duties such as the reservation and safeguarding of information remain intact. Digitization and dematerialization, allowing access and organization of extraordinary volumes of information, provide fundamental tools in everyday life, but - as in other times of technological evolution - they require security guarantees: in addition to the security of physical installations, it is today a large investment in cybersecurity tools and practices is required.
Catarina Tavora, Partner and responsible for Innovation at Miranda & Associados
Our society today faces new challenges in a global and sophisticated world in constant change and lawyers, as well as other professionals, are required to follow these changes, either by updating their legal knowledge, or by adopting computer and digital means of work appropriate to the new requirements. , either by implementing internal programs and procedures that ensure at all times the full fulfillment of their ethical duties. In this sense, it is particularly important that there are clear internal rules that allow the identification and avoidance of conflicts of interest in a short period of time. It is imperative to establish compliance and risk assessment mechanisms, fulfilling, among others, the obligations to which lawyers are subject in terms of preventing and combating money laundering and financing of terrorism. And there are also new challenges in the protection of professional secrecy and confidentiality. The recent computer attacks on law firms clearly demonstrate the new demands placed on this field. If professional secrecy and confidentiality between the lawyer and his clients is not properly ensured, it is the right of defense that is ultimately at stake and, through it, the right to justice. Innovation is a good and contributes to the progress of society and the human being itself, but ethics must always be the guiding factor.
Sofia Barros Carvalhosa, Partner at CTSU
Joana Mota Agostinho, Partner at CTSU
The lawyer, as a professional, must always keep in mind, among other aspects, that qualities such as honesty, probity, rectitude, loyalty, courtesy and sincerity, characteristics that we should aim for as people, are, deontologically, professional obligations. For all this, the lawyer is called, in his daily life, to adopt a behavior guided by a high moral conscience, especially in situations unknown to him. In recent decades, one of the biggest challenges that advocacy has gone through and continues to go through advocacy is undoubtedly technological evolution. From the "smart contracts" to the way we interact with the client, the commonly called "digital disruption", caused a change in the paradigm of the reality of the law and, consequently, it awoke old problems that today are presented in new ways. The ease of communication and dispersion of information, provided by current technologies, requires lawyers to take greater care in protecting the confidentiality of issues entrusted to them and, on the other hand, clients increasingly seek a quick and efficient resolution to the complexity of problems. placed. Thus, it is necessary to take advantage of all the technological benefits to which we have access today, seeking constant innovation and adaptation, but always guided by the core of ethical values already mentioned here. Only in this way can quality legal services be provided in view of the current reality of law.
Maria João Ricou, Managing partner of Cuatrecasas in Portugal
Innovation and, in particular, new technologies, should not, in principle, be seen as conflicting with the ethical and deontological duties imposed on lawyers. In fact, they can, on the contrary, be, in many cases, auxiliary of value in the fulfillment of those same duties. This is the case, for example, with the verification that there are no conflicts of interest, or with procedures to combat money laundering and terrorist financing. Cuatrecasas has a set of technological tools that, when crossing and verifying information in an agile, safe and structured way, guarantee the greatest rigor and speed in the analysis of potential risks. At the same time, in the face of changes, often rapid and disruptive by the clients themselves and the market in general, law firms have to go through an evolutionary process, at an accelerated pace, of adaptation or even anticipation of trends. We have, not only at the operational level, but also, naturally, in a deontological perspective, to continue studying and solving the legal implications of technological development in various economic sectors (and, in a transversal way, in industrial relations), and to continue to bet in new software and computer applications that allow gains in quality, efficiency and agility for the benefit of our customers.
Miguel Torres, Managing Partner at Telles
In the case of Telles, we have been going on for 84 years and have demanded scrupulous compliance with professional ethics from our employees, especially in the relationship with colleagues, as well as in respect for the law, in the solutions presented, and in the management of conflicts between clients or prospects. However, we admit that the Statute of the Bar Association is, in some rules, out of step with reality (for example, there are foreign law firms that are governed by different rules operating in Portugal). Technological change or the search for new services in a global world only requires greater rigor, in no way altering our principles and values, quite the contrary, we believe that only with the good example of our employees can we be worthy of the trust of customers and society. The client, like us, also experiences many of the same challenges, but in the end, he intends to work with a lawyer who presents different and valuable solutions, but safe.
Fernando Resina da Silva, Partner at Vieira de Almeida
One of the main challenges faced by the lawyer regarding the articulation of ethics with technology concerns the treatment and storage of information obtained / received. Today, technology allows, on the one hand, storage and access, which is not always legitimate, almost unlimited information, and, on the other hand, working with that information for a wealth of purposes and ends until recently unimaginable. In addition, the same technology, which is used for good, can easily be used for evil, allowing, inter alia, the intrusion into third-party computer systems, often without the own knowledge of the entities that own such systems. Here the greatest challenges of the lawyer arise in relation to technology and compliance with the deontological rules: assessing the origin and the way the information transmitted to us was obtained (which may have been legal, however, may violate deontological rules, not to mention now ethical issues); knowing how to use it (the capabilities of artificial intelligence and data science, for example, are enormous today) and, finally, but no less relevant; keep it safe and protected from illegitimate access by third parties (thus fulfilling the duties of confidentiality and professional secrecy). For this, it is essential that lawyers, law firms and individual lawyers have a minimum knowledge and sensibilities to understand the technology, understand how it was or can be used, in order to be able to assess whether its use fits the principles and ethical rules profession.
Luís Neto Galvão, Partner at SRS Advogados
The legal profession is subject to a very demanding deontology, which despite having been able to adapt to the challenges of a society in constant change, has in the digital transition one of its main challenges. The increasing dematerialization and fragmentation of the lawyer's office between the smartphone, the laptop or the private domicile of the lawyer and his collaborators provided by broadband / 5G and cloud computing, are particularly challenging in terms of professional secrecy. By increasing the number of information repositories, by working essentially through open networks such as the Internet and by holding virtual meetings with clients outside the office, the vulnerability to illegitimate access to information covered by professional secrecy increases significantly. In turn, the participation of lawyers in collaborative work platforms is increasingly requested, where sharing information with clients and their consultants is the rule. It is therefore imperative to foster a growing culture of cybersecurity associated with the duty of secrecy. At this level, there is an increasing pressure from clients on lawyers, in order to impose, by contractual means, the fulfillment of demanding security duties. Finally, it is essential for lawyers to be particularly demanding in choosing technological partners and contracting services, as well as adapting workspaces outside the office to ensure a level of security equivalent to that found in the perimeter of the office. The increasing use of social networks by lawyers also constitutes a significant deontological challenge, as it increases the risk of violating certain deontological duties in the matter of advertising, confidentiality, given the specific prohibition to which it is subject to public discussion of professional matters, or even by testing his duty of urbanity and correctness.