By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*
Technology has impacted the nature and practice of the legal profession in Kenya and across the globe in the 21st century. Traditionally, legal practice in many parts of the world including Africa has been through physical processes such as in person court room attendances where different players including judicial officers, advocates and litigants participate in court processes. However, this position is no longer tenable due to rapid developments that have been witnessed at the global stage. The outbreak of the Coronavirus disease (COVID-19) pandemic destabilized the global economy which resulted in a ripple effect on many sectors including the legal profession. The preventive measures recommended by the World Health Organisation and imposed by most states such as physical distancing meant that it became difficult for most professions to operate from their traditional physical places.
The legal profession was not spared by the effects of the COVID-19 pandemic. Due to the preventive measures adopted in most states, the physical attendance of employees at places of work such as law firms became difficult. To address this challenge, law firms devised alternative methods of work such as remote working. The Judiciary in Kenya also acknowledged the effects of the COVID-19 pandemic and adopted alternative means of access to justice such as virtual court sessions and electronic filing (e-filing) of court pleadings and documents. Conveyancing practice has also been disrupted through the digitization of services by the Ministry of Lands through the Ardhisasa platform. This has arguably disrupted the legal profession in an unprecedented manner.
The disruptions caused by the COVID-19 pandemic have brought to light, the impact of technology on modern legal practice. Processes such as virtual court sessions, electronic filing and remote working heavily rely on technology for their success. It can thus be argued that the legal profession has adopted technology as a matter of necessity. This can also be attributed to the ascendancy of information technology, the globalization of economic activity, the blurring of differences between professions and sectors, and the increasing integration of knowledge. However, while legal technology has won critical acclaim for streamlining and improving the accuracy, efficiency and effectiveness of laborious processes within daily practice, it has also been criticized for the concerns it raises such as data privacy and loss of employment due to automation of legal services.
The legal profession has more to gain than lose if it embraces technology as a tool of access to justice. It suggests practical ways through which the legal profession can embrace technology as a tool of trade in commerce and dispute resolution while also noting to address the concerns associated with the use of technology in the legal profession. ‘Legal technology’ (Legal Tech) is used to mean the use of technology and software to provide and aid legal services. Legal Technology applies technology and software to assist law firms in practice management, billing, big data, e-discoveries, predictive analytics, knowledge management and document storage. While Legal Tech is meant to enable the bigger firms improve overall efficiency in order to adapt to a progressively popular agile working environment, it also allows smaller firms and sole practitioners to compete with the leading names in the field, giving them access to powerful research tools.
Since the introduction of the formal justice system in Kenya during colonialism, the legal profession has been a major player in facilitating access to justice. However, the road towards access to justice in Kenya has been riddled with many obstacles including high fees of litigation, geographical location of courts, complexity of rules and procedures among others. These problems are compounded by economic turbulence due to societal and economic changes; adaption to new technology; compliance and ethical issues; and continuing professional development which directly impact on the legal profession especially among lawyers.
The changing times and the above listed issues have made clients to continue to demand efficiency and responsiveness from their lawyers for less cost. These challenges have been exacerbated by the COVID-19 pandemic which changed the landscape of the legal profession. The idea of remote working which was widely embraced as a result of the pandemic has not only changed the way lawyers view their approach to legal work but has also created an opportunity for them to weigh and reconsider how law firms will operate in the near future. It is also argued that as law firms embrace the idea of working remotely due to the COVID-19 pandemic, there has been a growing likelihood that physical offices will look very different in the future compared to what they are now. These are some of the expected and unexpected effects of the COVID-19 pandemic on law firms where remote working is expected to take off as never before and firms will operate with more prudent and flexible financial models.
Despite the challenges highlighted above, modern legal practice is considered one with staggering prospects. It has been argued that the strength of the 21st century lawyer lies in the understanding and use of Technology as a practice tool and area of core competence. For a long time, the legal profession and lawyers in particular have been characterized as technology antagonists who are slow to change and wary of innovation. However, this position is no longer tenable in modern legal practice. The practice of law has evolved from an era of using desktop phones, filing cabinets, and yellow legal pads to a period when all these have been replaced by laptops, tablets, cell phones, and other mobile devices and often virtual or cloud-based platforms. This coupled with the challenges in legal practice that have emerged as a result of the COVID-19 pandemic means that technology has become part and parcel of the legal profession. The paper discusses the extent to which the legal profession has embraced technology in Kenya largely as a result of the COVID19 pandemic. It further discusses the challenges and prospects associated with the use of legal technology.
*This article is an extract from published article “Embracing Technology for Enhanced Efficiency and Access to Justice in the Legal Profession,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2022 and is ranked among the Top 5 Arbitrators in Kenya in 2022 by The Lawyer Africa.
References
Muigua, K., “Embracing Technology for Enhanced Efficiency and Access to Justice in the Legal Profession,” Available at: http://kmco.co.ke/wp-content/uploads/2022/06/Embracing-Technology-for-Enhanced-Efficiency-and-Access-to-Justice-in-the-Legal-Profession-Dr.-Kariuki-Muigua.pdf (accessed 03 July 2022).