One of the great paradoxes of the legal profession is that lawyers are stereotyped as allergic to technology while simultaneously being at the bleeding edge of the way society interacts with technological advancement.
The Association of Corporate Counsel Annual Gathering in Las Vegas, which I attended last week, provided a first-hand opportunity to explore this thesis.
On the one hand, an entire convention hall was filled with legal technology companies vying for attention with conference bait like headphone raffles, lavender spray handouts, and even pretend movie star selfies. Something about the transactional nature of such exchanges would seem to reinforce the stereotype: “Fine I’ll demo your newfangled gizmo if you give me a children’s toy I can bring home to the family” (no doubt leading to exclamations of “My Mommy/Daddy went to Las Vegas for three days, and all I got was this branded rubber duck!”).
It was all good fun and, by the looks of it, the sponsors were successful in winning some of that attention to show the power and promise of technologies for corporate legal departments big and small, innovative and not. While I overhead many lawyers talking about how they keep all their data in their heads and tend to primarily rely on law firms they already know and trust, there was a level of inquisitiveness that implied many corporate counsel know the power of the solutions being presented and are on a journey to think about using them “in real life.” I’m a huge advocate of the need to leverage technology in the legal space, and I left optimistic that many in-house counsel are interested in how advances can make their jobs easier. So, I think the first half of the thesis was at least partially disproven.
I was able to test the second half of the paradox during a very substantive panel on the metaverse. I chair the advisory board of a rapidly growing virtual reality business, MesmeriseVR, so I have a lot of experience rolling out metaverse tools to enterprise-scale corporations. I am certain that few of the nearly 100-plus corporate lawyer attendees for the metaverse session had ever put on VR goggles or purchased NFTs. Yet there was an extremely in-depth conversation between the panel and audience about how hard the metaverse is to regulate because there are no national laws or boundaries in interlocking digital spaces. The conversation cut across how charities can raise money in the metaverse as well as the complexities of minors in digital environments from countries with different ages of consent — and many other topics. In effect, the lawyers in the room could fully contemplate the legal implications of the metaverse even if they hadn’t fully experienced it.
And this was where it all crystallized for me. We live in a world without any type of global leadership at a time when technology is advancing at an exponential rate. When this occurs within a national boundary, governments will pick up the baton (often slowly) and generate the policy playing field in which companies must operate. Companies will play inside those rules, searching for ways to find advantage or influence rule changes as they can.
However, the metaverse is an altogether different challenge. For example, at Mesmerise, we recently held an alumni gathering for Harvard Business School where classmates from 28 countries joined as avatars for a book launch of one of their professors and to network. If they had tried to meet in person, they would have had to navigate all sorts of settled law — visas, conditions of carriage, hotel contracts, COVID-19 restrictions, and the like. Those regimes would have actually made such a meeting unlikely to happen. Instead, they all materialized in a common digital space to high-five and trade stories.
In that type of dynamic, whose rules are we all following? What data policies take precedence? If someone were to conclude a verbal agreement for a business deal during the session, what would the jurisdiction have been?
None of the answers are clear. But what is clear is that lawyers are already starting to fill in the uncertainty. Instead of being led by policy or precedent, for now, business behavior in the metaverse will be guided virtually entirely by the opinion of corporate counsel who determine the extent to which their employees can participate and under what rules because this limits the viability of metaverse business models. This goes for the consumer metaverse as well, as providers and participants need to assess the risks and implications of such a fuzzy legal domain.
I actually recently had one enterprise ask me if Mesmerise’s virtual reality platform could handle electronic signatures. I think the better question would have been if their lawyer’s avatar could accompany them into virtual reality to review any documents!
Far from being hopeless with technology, in the absence of clear multilateral rules and norms, it is actually lawyers who will define the space in which businesses can play. This is as true in real life as it is in the metaverse.
Sean West is Co-Founder of Hence Technologies, a software company that transforms how enterprises work with external counsel. He was previously Global Deputy CEO of Eurasia Group, the geopolitical advisory firm. He writes a biweekly column in Above the Law on geopolitics and the practice of law.