While legal technology is transforming the business landscape for in-house counsel across Latin America and is laying the groundwork for an exciting future, GC discovered that it also gives rise to a host of new ethical and moral dilemmas. 18% of those surveyed said that implementing new technologies within their teams had raised ethical questions.
Since the beginning of the internet, the
potential for technology to be exploited
and misused has been a primary concern
for policy makers. As technology has continued
to expand and play an ever more prominent role
in our everyday lives, these concerns have only
broadened, becoming both more frequent and
unique - and with each new technology comes a
host of new ethical concerns.
As technology continues to evolve in the
business world, while the legal profession may
have been slow to adapt and progress, times are
changing. The development of technologies such
as machine learning and artificial intelligence
are being applied to legal in an effort to reduce
overheads, improve accuracy and boost
efficiency. But despite the advantages legal tech
brings, there remain concerns around technology
and how it may implicate professional ethics.
In the research that underpinned this report,
18% of those surveyed said that implementing
new technologies within their teams had raised
ethical questions. On its
surface, this would suggest
that in the legal space,
the use of technology was
almost always done in an
ethical fashion and didn't
raise concerns. But speaking
in more detail with some
of those counsel who had
faced ethical issues painted a
different picture, suggestinginstead that many general counsel are not yet
attuned to the new types of ethical questions
ETHICAL BY DESIGN
Just how technology is developed for, and used
within, various legal functions is one source of
significant ethical debate - particularly given the
inherently secretive nature of the profession.
One general counsel working in the banking
sector, describes some of the ethical issues
encountered with how legal software is applied.
'In Brazil, we have a major problem dealing with
the volume of mass litigation cases involving
consumer and labour issues that we face. Here at
the bank, we currently have over 120,000 active
'To help deal with this, I have software that
allows me to access cases to find out what
judges are doing, or have done, in cases related
to my company and/or my competitors.'
Having software that enables counsel to quickly
view other similar cases from the past is not
revolutionary, but having cases analysed in order
to provide suggested arguments according to
the jurisdiction and the judge is.
'The information is public, but this system can
offer me suggestions on which versions of
arguments would be best for certain judges. It
can also help with predicting what may happen
in my case.'
'Using this, I can build a better defence or
consider alternative options. For example, if
the software revealed that I have a 70% chance
of losing a case, I can use this information to
propose that we may be better off
agreeing to settle the case. Then,
when it comes to working out a
settlement, I have the statistical
information that would allow me
to know how many other similar
cases have been settled. That
provides me with the information
that will help me decide how
much money I should settle a
Using statistics and predictive capabilities in
themselves is not inherently unethical, but the
potential to build on this system in unethical
ways is apparent. The potential for alternative
sources of data that could be used to help
build a better profile on judges and predict
their behaviour is vast - social media is just one
prominent example of this.
'This kind of concern is being raised, but it is
not a major concern right now. What may be
an ethical concern is the data itself. The real
problem arises only if you use confidential
information, or if the data could be used to make
correlations,' he says.
Marcelo de Araujo, associate professor of
philosophy of law at the Federal University of Rio
de Janeiro, has worked closely with developing
ethical protocols and codes for emerging
technologies, including machine learning. He says
that the data used to teach these systems can
itself be an unintended source of ethical issues.
'Machines can be influenced by human bias and
emotions. If the original data is biased, the output
delivered by the machine will also be biased.
Machine learning will typically find out underlying
patterns in the data set, a task that would take
too much time and expertise for human beings to
do unaided by AI systems,' he says.
'But if the original data set contains an unusual
number of references to decisions that, for
instance, marginalise black citizens, chances are
that the prediction suggested by the AI system
will reflect that kind of pattern.'
Alejandro Fernández R-B, head of legal at
Cotemar, has grappled with similar issues.
'In Mexico, when you have a labour case, mainly
it's because the former employee feels that he
was entitled to receive a bigger compensation.
Some cases, they are right; some cases, they are
'But the software might recommend that I can
settle with them for a lower figure that they are
entitled to. So, that is the ethical issue. Because
in some part, I want to, and it's my duty with
the company, and on the other hand of course,
I want to be fair with the former employees. So,
that is an ethical issue that I am seeing as a result
of this software.'
Show me the data
Since the implementation of the General Data
Protection Regulation (GDPR), safeguarding
data has not only been an ethical responsibility
for general counsel, but a legal obligation. Many
countries across Latin America have followed
the lead of the European Union and aligned their
existing regulations or introduced new laws
around data protection.
Brazil's suite of data protection laws are set to
come into force in August 2020. The Lei Geral
de Proteção de Dados (LGPD) stands to have a
marked impact on business and broader society,
with protections possibly set to be enshrined in
constitutional law in the future.
'The public at large increasingly perceives the
protection of their personal data as a pressing
question. There is now a new bill for an
amendment to the Brazilian Constitution that
would turn the protection of personal data into a
fundamental right,' explains de Araujo.
'Most citizens seem to be aware that they are
giving away too much personal information
online, and that it is far from clear what private
companies are currently doing with their
personal data. Over the last few months, there
have been reports of two cases of technical
failures which compromised the personal data
of 28,000 citizens in one case, and 70 million in
FAIR AND AVAILABLE
There are a number of ethical rules that apply to general counsel, irrespective
of technology. However, as legal tech becomes more prevalent, new ethical
dilemmas begin to arise. In Brazil, AI tech is being introduced to reduce the time
it takes to settle disputes.
'The Brazilian supreme court announced in 2018 that an AI system called Victor
was being tested in order to speed up court decisions,' says de Araujo.
'Currently, the court may take as many as ten years to settle a dispute. Many
citizens die before they can obtain the benefits of a favourable decision.'
Victor is an artificial intelligence tool developed in partnership with the
University of Brasília. The AI software is designed to process thousands of court
decisions already made and identify links between cases. By identifying and
analysing previous precedents, the aim of Victor is to increase the speed of legal
proceedings through the development of neural networks. Technology has the
potential to play a major role in improving legal services in Brazil, but de Araujo
believes that algorithmic bias needs to be accounted for.
'There has not been much public discussion on how Victor is supposed to deal with
algorithmic bias. Speeding up court decisions would be a huge improvement in the
Brazilian legal system. But quicker decisions will not promote justice for ordinary
citizens unless unjust patterns of decision-making in the past are also avoided in the
future. For now, it is unclear how the Supreme Court intends to address this issue.'
To avoid transferring prejudicial precedent to future cases, more oversight and
transparency within machine learning services is required.
Says de Araujo: 'The problem could be addressed by examining what exactly the
system is doing as it provides scores for risk assessment. But developers may be
unwilling to make their AI systems more transparent. They fear that, by making
the system more transparent, other developers might take advantage and copy
In both of these cases, the culprit was a
government institution, heightening public
awareness of data-related issues at a time when
business is preparing for increased scrutiny with
the introduction of the LGPD.
'As a banking service, we provide credit cards to
a lot of our clients. Using this data, I could learn,
for example, that a client of the bank is going
to the beach every weekend, because they buy
something on the way there,' says the banking GC.
'The specifics of what you buy is information
that is protected by law, but a bank could use
other information from the transaction to try
and sell the client a product. For instance, you
could contact the client to try to sell them travel
insurance, because you know that this person
goes to the beach every weekend.'
Equally, it could be said it would be unethical if a
bank were to use this information to discriminate
against a client by developing assumptions based
on spending patterns.
'People who go to the beach every weekend could
be discriminated against if I make a correlation
with something else that affects their credit score.
The client could call the bank and ask, "Why is my
credit score affected?" Right now, if I say that our
system says you go to the beach every weekend
and your salary is $1,000, therefore you probably
cannot pay your bills, we would face problems,'
explains a GC in the financial sector.
'If we make a lot of correlations like this, we can
face problems. This kind of model can become
so sophisticated - it deals with a lot of data and
one of the dangers is that this data could trigger
a warning that says this person is a good or bad
client for the bank. I think we could face real
problems in the future.'
In order to address the potential for making such
ethical and legal breaches, banks across Latin
America have implemented measures to limit
data access across a company.
'We have a specific department here at the
bank comprised of lawyers, software engineers,
operations people and risk analysts. They analyse
and see the flow of all data in the company and
check to see if the information is sensitive or if it
must be kept confidential,' he says.
'This team applies the law in order to protect the
information of the people linked to these types of
risks. I think we have this department in the bank
after the implementation of the GDPR law and
we are spreading this culture of data protection
in banking - we are not only compliant to banking
secrecy law, but for data protection. There is still a
lot to do, but the bank is in a good shape'.
In the future, the implementation of new
technology will only continue to make data
collection and analysis more sophisticated and
complex. Data protection has always given rise
to ethical concerns for corporate counsel, but
technology has made data security a major point
of concern. With data breaches gaining global
attention, some general counsel in Latin America
believe that it will only be a matter of time
before stricter global controls are implemented.
'I really believe these types of regulations will
become global at some point. Maybe the United
Nations or another global entity will try to
implement regulations that are more globally
focused, but I would guess that, regardless, the
principles surrounding data protection will all be
the same,' says Pablo Enrique Urrego Hernández,
head of legal at Diageo Colombia.
WILL SIRI PRACTICE LAW?
Separate to the ethical concerns raised from
algorithmic bias and data protection are the
fears surrounding legal tech's potential to
'Some people believe that there is an ethical
discussion surrounding legal software that could
attempt to destroy the value lawyers bring,'
explains Urrego Hernández.
'If you develop software that could replace
lawyers, then essentially a lawyer could be
replaced by a machine. The idea of technology is
not to be viewed as a risk to job opportunities, but
instead as a tool that could help lawyers focus on
tasks that are much bigger and add more value.'
Despite the way legal tech is viewed, its potential
to be an industry disrupter is generally accepted.
Of the more than 200 general counsel surveyed
across Latin America for this report, 84% thought
that technology would be a moderate to great
disrupter over the next five years.
'What will probably happen is that systems will
be so highly developed and so detailed on what
we want them to do, that tech will probably not
take into account any human emotion. There
are so many factors and possibilities that could
be used to create a system that could probably
emulate repetition, but, in the end the human
factor is key,' says Urrego Hernández.
'At the moment, there is not true artificial
intelligence - I do not know whether this could
change in the future - but, up until now, there
has been no system that can replace human
behaviours and ways of thinking.'
Legal tech across Latin America, like much of the
world, is still in its development stage. Most of
its implementation has revolved around low-level
work but, as technology continues to develop,
the issues that could be raised by legal tech are
still fundamentally unknown.
'Experience has taught me that while you
develop these things, you start seeing issues
you have never seen before, and there is no
doubt that the future of legal tech will present
many barriers that will need to be addressed. At
the moment, what we need is to be objective,
although imagination is powerful and out-of-thebox
thinking is good,' says Urrego Hernández.
'The list of ethical concerns that could be raised
by new technology is extremely extensive. What
should happen is that ethics should be part of
your life. At the end of the day, ethics should be
one of those main considerations that you have
to take into account in every aspect of your life.'
Whether in-house counsel across Latin America
resist or embrace technology, legal tech will
inevitably transform the delivery of legal services,
though not without a host of other issues
to contend with. Ethical conduct will remain
pivotal to ensuring the legal profession remains
independent, effective and accountable.