Toward National Regulation Of Legal Technology: A Path Forward For Access To Justice

Authors

Drew Simshaw, Gonzaga University School of Law

Keywords

legal technology; legal services; access-to-justice; legal practice

Abstract

Legal technology can help close the access-to-justice gap by increasing efficiency, democratizing access to information, and helping consumers solve their own legal problems or connecting them with lawyers who can. But, without proper design, technology can also consolidate power, automate bias, and magnify inequality. The state-by-state regulation of legal services has not adapted to this emerging technology-driven landscape that is continually being reshaped by artificial intelligence–driven tools like ChatGPT. Confusion abounds concerning whether use of these technologies amounts to unauthorized practice of law, leads to discrimination, adequately protects client data, violates the duty of technological competence, or requires prohibited cross-industry business structures. Despite widespread calls for regulatory reforms that respond to these uncertainties, few jurisdictions have acted, as little data exists about the use, benefits, and harms of rapidly emerging legal technologies.

This Article argues that, in light of these problems, regulatory reform processes should be explored at the national level, where expertise, as well as empirical benefits and economic advantages, would yield more informed and impactful reforms aimed at balancing consumer protection and access to justice. The Article provides a comprehensive proposal for an opt-in national legal services “sandbox”—a regulatory reform mechanism that carefully tests innovative services through temporary safe harbors and data generation that leads to more informed regulatory decision-making. Although legal services are traditionally regulated at the state level, other industries have benefited from licensing individuals locally while regulating the technologies they use nationally, and state bars already rely on national entities to help with other regulatory functions, like drafting rules of professional conduct. Legal technology’s potential to help close the justice gap—a national crisis—warrants a similar national response.

Recommended Citation

Drew Simshaw, Toward National Regulation Of Legal Technology: A Path Forward For Access To Justice, 92 Fordham L. Rev. 1 (2023).
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss1/1