One of my favourite books is “Tomorrow’s Lawyers” by Professor Richard Susskind, a prominent author and speaker specializing in the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers.
Professor Richard Susskind started his book by saying that, “legal institutions and lawyers are at a crossroads, I claim, and will change more radically in less than two decades than they have over the last two centuries. If you are a young lawyer, this revolution will happen on your watch.” He continued by saying that, “Unless retirement is imminent, what I say here will directly affect older lawyers too.”
This has never been more true than it is today.
There is no question that the Novel Coronavirus has adversely impacted businesses across all sectors and dramatically changed our work practices. Since the implementation of the nationwide Movement Control Order in Malaysia (“MCO”) with effect from 18 March 2020 - followed by the Conditional Movement Control Order (“CMCO”) from 4 May 2020 to 9 June 2020 with the ease of some restrictions under the MCO – and now being replaced with a Recovery Movement Control Order (“RMCO”) effective from 10 June 2020 to 31 August 2020 during which most of the economic sectors and business activities are allowed to resume operations as the country is entering a recovery phase, working from home has become the “new normal” for many businesses given that on-site operations had to be ceased during the movement restrictions. We expect this new trend will continue post-Covid-19 situation. The legal practice is no exception as it is not listed as an essential service under the law. To ensure continued legal service delivery, lawyers and law firms have been pushed to rapidly adapt to the new normal and also develop innovative solutions to serve their clients more effectively under these radically changed circumstances.
This article will highlight how the Covid-19 pandemic has changed the face of the local legal practice, and why it is important to embrace the changes emerging in the new normal and start integrating technological innovation into the legal profession.
RISING DEPENDENCE ON TECHNOLOGY IN THE MALAYSIAN LEGAL PRACTICE
While legal practice is one of the more traditional industries where the deployment of technological tools has not always found a comfortable fit, the current pandemic may prove a catalyst to pushing law firms to adopt technology due to limitations on the conventional way of doing things. To minimise the impact of movement restrictions, law firms have switched to virtual operations and started to explore the full potential of the newer workplace innovations in the delivery of legal services. For example, client meetings and discussions have been conducted remotely via various video conferencing platforms such as Zoom, Microsoft Teams and the like. Likewise, internal discussions or interactions with colleagues have been done virtually via scheduled meetings on a range of digital platforms.
Not only for law firms, the restrictions on movements have also meant that courts nationwide and government offices had to be closed. To ensure that the wheels of justice do not grind to a halt, we are delighted to know that the Malaysian judiciary has been resolving cases remotely by way of video-conferencing (to hold remote hearings where possible), exchange of emails and the court’s e-Review system. It is also particularly interesting to note that the courts in Sabah and Sarawak have started using modern technological advancement such as Artificial Intelligence (AI) as guidelines for sentencing in some cases.
On 23 April 2020, the Malaysian Judiciary made history as the Court of Appeal conducted its first virtual appeal proceedings remotely in the midst of the pandemic via video-conferencing, which were live-broadcasted for the first time on the court’s website where members of the public were invited to watch the justices at work.
In another historic first, Malaysia had its first experimentation with a fully virtual trial successfully conducted during pandemic closure, concerning a tax case which involved four witnesses to give evidence remotely before the Special Commissioner of Income Tax through a video conferencing platform.
Recognising there may be a steady increase in video participation by parties for various hearings, a group of Malaysian lawyers has come up with a proposed protocol relating to the conduct of remote court hearings, which aims to guide the Judiciary, the legal practitioners and litigants through the process of participating in a virtual hearing and hopefully to be used as a guide in the future.
Furthermore, the Office of the Chief Justice of the Federal Court of Malaysia has, on 21 May 2020, provided a draft of its proposed amendments to the various rules of court for remote hearings to the Bar Council of Malaysia for all stakeholders’ feedback. This has demonstrated a move on the part of the Malaysian Judiciary towards modernizing the litigation practice by updating the court rules to accommodate online civil hearings.
Even in a very recent decision, the High Court notably held in obiter that unanimous party consent is not a necessary pre-condition to allowing hearings to be conducted by use of video-conferencing. The court’s decision was premised on the grounds that the court may validly exercise its discretion under Order 32, Rules 10 and 11 of the Rules of Court to hold a video-conference in the "overriding interest of justice", despite in the face of the objection of one party. Furthermore, the judge held that this was in accordance with Articles 4 and 5 of the Constitution. It would cause injustice to the applicant and compromise his/her fundamental right to have access to justice if the court were to decline to proceed with the remote hearing on the basis of the opposing party’s lack of consent to it.
We have also seen that more and more law firms are leveraging the use of social media to share legal knowledge through publishing articles and hosting webinars to help the public better navigate through these challenging times.
BE PREPARED TO EMBRACE THE “NEW NORMAL” OR RISK BEING LEFT OUT
As the current pandemic has certainly accelerated the pace of technological adoption in the legal industry, it is foreseeable that this trend will only accelerate further and most likely lead to lasting changes in how we practice law even after the pandemic subsides. Significantly, this has signalled a greater need for continuous upskilling of the modern lawyers wishing to remain competitive in a post-coronavirus world. It is also timely for law firms to reconsider their own technology needs and capabilities and seriously start looking into investing in technological solutions in light of the changing environment.
Bear in mind that client demands and expectations are only growing in tandem with the changing business world, especially during this crisis period as some may be demanding innovation and cost-savings from their legal service providers. With much competition ahead in the legal market, it is imperative that law firms need to be prepared to be on the cutting-edge of technology and innovative solutions and be able to offer more competitive services if they want to land new business and retain existing clients.
The Covid-19 pandemic has demonstrated just how technology can help businesses to survive this new reality and its benefits in terms of speed, access of service, cost-saving and convenience. Perhaps, the key takeaway or lesson that most law firms have learnt from this pandemic crisis would be how they can adapt to do things virtually that they never had thought possible to be done remotely with use of technology and digital tools.
There are plenty of digital tools that can help legal practices cope with delivering services remotely. For example, advances in technology such as digital scanning and cloud storage have allowed law firms to transition from storing physical documents to electronic files - which offer benefits such as easy accessibility and sharing of files, enhanced collaboration, and data safety when documents are kept digitally in a secure cloud-based location, to name a few.
The restrictions in place as a result of the pandemic have also placed an increased focus on alternative forms of execution of documents, such as signing a contract via electronic signature, as a practical means for completing transactions in a timely manner since in-person meetings are discouraged or prohibited under the social distancing rules. In Malaysia, e-signatures and digital signatures on contracts have been legally recognised by the Electronic Commerce Act 2006 and the Digital Signature Act 1997 respectively. Despite the fact that most commercial transactions today can be closed electronically as they are granted legal effect and are enforceable under the existing legal framework (except for certain types of transactions which cannot be executed in electronic form as additional formal requirements may be required such as notarization or attestation), in practice, most parties still largely prefer the traditional mode of signing on a printed form of contract and are slow to adapt to the usage of electronic signatures. However, with the new social distancing norms in place, we will likely see a tremendous increase in the adoption of e-signatures where such signing method will soon be accepted as the “new normal” moving forward.
We have also seen that the courts have been receptive to the use of remote communication technology to keep the legal system operating in the new environment. Keeping in line with the objective of “overriding interest of justice”, the courts may be inclined to direct that a case be dealt with remotely if it is in the interests of justice to do so, notwithstanding the reluctance of one of the parties.
In fact, the Malaysian judiciary has made some digitalising progress since the year of 2009, as can be seen from the introduction of the e-filing system and recently the e-Review system – which allow lawyers to do electronic filing of court documents and online case management without having to be physically present in court. It is also worth pointing out that our immediate former Chief Justice, Tan Sri Richard Malanjum, who was acknowledged for his successful transformation of the courts in East Malaysia in the past decade from a manual court system to an award-winning modern IT-based system, had long taken notice of the technological advancements and recognised the need to modernise the legal profession. His commitment to the digitalisation of the court system, aimed at achieving greater efficiency for the courts and lawyers, may be proved by the various efforts taken by him in trying to integrate technological innovations into the justice system during his tenure ever since he was the Chief Justice of Sabah and Sarawak.
Of course, there are some potential pitfalls that a virtual hearing may pose. Privacy and security of the online connection can unquestionably be big issues, as revealed by the recent multiple class-action lawsuits filed against the popular video conferencing company Zoom over privacy complaints and cybersecurity flaws within the software itself. Since video-conferencing may often include file sharing and screen sharing of confidential information, cybersecurity is no doubt a priority for every video-conferencing solution user and thus, the selection of an appropriate video conferencing platform will be significant.
There are potential glitches and technical problems that may arise during video-conferences, most commonly attributable to inadequate bandwidth/network connectivity issues or video/audio-related issues, which could potentially disrupt the progress of the hearing. However, many of these common problems can actually be avoided by making sure you have a solid internet connection and the right equipment in hand. As a practical tip, it will be desirable for parties to first troubleshoot problems prior to the scheduled virtual hearing or meeting, to ensure smooth operations on the platform and that the quality of the virtual environment is adequate.
Some litigation practitioners have also raised a number of legitimate critical issues that can arise from online court trials. Firstly, taking evidence remotely may give rise to the question of whether the judge can really observe the demeanour of the accused persons and witnesses to determine the veracity of evidence and the credibility of the person giving evidence, adding that witnesses testifying in the standard court setting would generally tend to feel more bound to speak the truth than testifying from the comfort of their homes. Secondly, there may be the risk of improper coaching or assistance to witnesses during the virtual trial where lawyers could be present in the same room as the witness and suggest answers to the witness while he/she is testifying. Thirdly, it is more cumbersome to conduct a witness examination where witnesses need translators or sign language interpreters. Last but not least, one valid problem with virtual hearing is that not all parties involved in the proceedings have equal or adequate access to the available technological facilities. Remote hearings may not be workable for criminal trials if, for example, prisons are not equipped with the necessary infrastructure to support virtual trials such as access to a stable internet connection and an appropriate room for the accused person to present in court digitally.
Unless the above challenges are resolved, the virtual courtroom is less likely to be the ideal forum for more substantial or complex hearings, particularly those involving witness evidence and significant cross-examination as they are more challenging to be done efficiently online.
At the time of this writing, remote hearings are yet to be used for any trials before judges in Malaysia. It is difficult to predict whether the virtual hearings will become the “new normal” or whether the judiciary’s recent proposed amendments to the civil court rules, if implemented, will pave the way forward to increasing recourse to virtual hearings in the years to come. Nevertheless, what is certain is that the ongoing pandemic has demonstrated the growing importance of technology in the administration of justice especially in this challenging period where social distancing measures are still in place. It is an applaudable thing that our courts are continuing to update and refine their response to the pandemic, and the measures presently taken by the Malaysian judiciary have shown readiness on their part to adapt to the changing environment by further committing to digitalising our justice system.
The Covid-19 pandemic has demonstrated how quickly the world can change in only a few months’ time and the importance of digital readiness for businesses to continue to operate as much as possible during the pandemic. With the outlook on the Covid-19 pandemic and the lasting impact it may have on the future of work, we in the legal industry will need to be agile and adaptable in a way traditional lawyers have never needed to be in the past. And given that the role of technology is expected to continue increasing in a post-COVID-19 world, embracing technology is definitely the way forward. There is no way for law firms to stay afloat in the present highly uncertain and rapidly evolving environment if they are reluctant to move away from the traditional ways of doing things.
In closing, I would like to quote Professor Richard Susskind again. He wrote that “in the 2020s at least, there will be redeployment and not unemployment for lawyers—lawyers will undertake different work. In career terms during this period, lawyers should plan either to compete with machines (look for legal jobs that are likely to favour human capabilities over artificial intelligence) or to build the machines (aim to be directly involved in the development and delivery of new legal technologies and systems). In the very long term, it is hard to avoid the conclusion that there will be much less need for conventional lawyers.”
As scary as it may sound, perhaps, this is the best time to take a step back to re-think and re-strategise how we lawyers should endeavour to deliver our legal services, because things are just not going to be the same anymore.
GLT Law is a law firm in Malaysia focusing its practices in areas such as corporate and commercial, litigation, privacy and Internet, blockchain technology as well as real estate and property. It sets its direction to be an innovative and forward-thinking law firm by leveraging and incorporating cutting-edge technology into legal practice, in order to bring innovative solutions and provide better customer experience to its clients. For more information about GLT Law, visit:
See Schedule of the Prevention and Control of Infectious Disease (Measures Within the Infected Local Areas) Regulations 2020 (P.U.(A) 91/2020)
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