The Bar Council recently submitted the draft of the new Legal Profession Act to the Attorney General. The new Act seeks to account for developing trends and technological innovation in the legal profession and also seeks to introduce provisions with the aim of being a fully self-governing Bar.
The new Act was drafted by the Committee to Reform the Legal Sector with the assistance of various working groups. I was appointed to assist Working Group 13 to draft the provision for “Legal Technology” which is now s. 35 of the new Act.
S. 35 of the new Act provides the following-
(1) For the purposes of this section:
“legal technology” means any technological product or service used or to be used in the provision of any service or any act which is within any function or responsibility of any advocate and solicitor, or places at the disposal of any other person the services of an advocate and solicitor;
“legal technology provider” means any person or entity that provides legal technology;
(2) The Bar Council may make rules and rulings for the regulation of any legal technology or legal technology provider, taking into account the promotion of technological innovations, public interest and the interests of members of the Malaysian Bar.
(3) The Bar Council shall have the power to exempt any legal technology or legal technology provider from any rules and rulings of the Bar Council and from section 33, with or without any condition, as may be deemed fit by the Bar Council from time to time.
(4) Any contravention of this section by any legal technology provider, shall result in the revocation of any approval or any exemption granted by the Bar Council.
(5) The Bar Council shall have the power to conduct any inquiry to identify or determine any contravention referred to in subsection (4), and may apply to the High Court by way of originating summons, to compel any person or entity to produce any document for the purpose of the inquiry.
(6) Where the Bar Council concludes that there has been a contravention of this section, the Bar Council shall have the power to apply to the High Court –
(a) for an order to restrain the legal technology provider from providing its product, service or solution;
(b) for an order to compel the relevant authority to disclose any further relevant information related to the contravention; and
(c) for an order to compel the relevant authority to restrain or limit access to such legal technological providers that contravene subsection (2).
(7) Any person or entity who contravenes subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit and where such person or entity is an advocate and solicitor or limited liability law partnership, he or it shall also be liable to disciplinary proceedings under Part XI.
S. 35 seeks to regulate the provision of legal technology by legal technology service provider. It is noted that no approval is required to provide any legal technology or legal technology provider technology services unless Bar Council makes rules and rulings for it.
There had been proposal to introduce provision to require legal technology service provider to register itself with Bar Council before it can provide legal technology services. Fortunately, this provision was not introduced as it would stifle innovation. Businesses would be discouraged from creating any innovation for the legal profession if the barrier to entry is high or uncertain. Furthermore, certain technologies like accounting software are catered to all industries and not only legal industry. It would be difficult for the technology provider to divide itself between non-legal technology and legal technology.
There are two (2) parts to the definition of the term “legal technology”. Legal technology is defined as any technological product or service used or to be used-
(1) in the provision of any service or any act which is within any function or responsibility of any advocate and solicitor, or
(2) places at the disposal of any other person the services of an advocate and solicitor.
The first part basically covers all forms of legal technology used by an advocate and solicitor, whether in a form of a hardware and software, and could include legal information platform, artificial intelligence, accounting, software, mobile payment etc.
The second part basically covers lawyer-client matching service. Lawyer-client matching service is currently prohibited by s. 37 of the Legal Profession Act 1976. Lawyer matching service providers, Burgielaw and CanLaw were prohibited by the Bar Council to provide such services with a fee as it amounts to touting.
With the new s. 35(2) and (3), matching service may again be provided but with Bar Council’s approval.
Disclaimer: The views above are purely my personal views. They are not the official view or intent of the Bar Council.