I-CAN-GHANA

[Delivered as keynote speech/address at 2018 Annual Conference of the Ghana Bar Association, Koforidua, 10th September, 2018]

EXTRACT: Colleague Lawyers, innovate or perish. Develop or expire. Transform or disappear. Reconstruct or deteriorate. Rethink or disintegrate. Alvin Toffler said that the illiterate of the 21st Century would not be those who cannot read or write, but those who cannot learn, unlearn and re-learn. It is really that simple, almost binary.

[This presentation relies heavily on the findings of the books “Law is a Buyer’s Market” by Jordan Furlong and “The End of Lawyers? Rethinking the Nature of Legal Services” by Richard Susskind.]

INTRODUCTION – THE STATE OF THE LEGAL PRACTICE

First Set of Scenarios: After the young couple had their second child, they started discussing the future of the children in case of any eventuality, and then they made an appointment with a lawyer to write a will. When the small company formed by the fresh graduates applied for the loan for the start-up and received the Heads of Agreement or Offer Letter from the bank, they contacted a law firm that specialises in both their line of business and advising on terms of loan agreements. When the company that makes clothes received the 30-page draft contract to make clothes for that chain of stores in the US that would launch them into international markets for the first time, they engaged a law firm to walk them through the draft and its implications.

Second Set of Scenarios: The small business has just undergone a tax audit by the Ghana Revenue Authority and has been slapped with a huge tax bill that will collapse the business. The Environmental Protection Authority and the Ghana Standards Authority has shut down the old factory of the manufacturer for several breaches of environmental standards, and so the business has to lay several workers off. A bank’s owners wakes up one morning to hear on the news that the bank’s licence has been withdrawn, a liquidator has been appointed and all of its business and offices have been taken over by another bank under a Purchase and Assumption Agreement with the Bank of Ghana.

In the First set of Scenarios, when the law knocks at the door, it is welcome as a friend and a facilitator of growth, success, security, expansion and opportunity. Everyone is happy. In the Second set of Scenarios the law that knocks at the door is an irritant, a pain in the neck and an unnecessarily expensive tiresome obligation.

In his book titled Law is a Buyer’s Market, the author Jordan Furlong summarises this beautifully. He says:

“Many times, law comes to the door and it feels like a home invasion. It arrives as trauma, disrupting plans and dreams, threatening the personal well-being and financial survival of those who open their door to find it there.”

Unfortunately, in the practice of law in Ghana, the Second set of Scenarios appears more prevalent than the first. For a great chunk of our society, a lawyer is only one who goes to court to argue. And one only needs the court when there is trouble. Even a senior lawyer once asked me, “so all those lawyers in your firm who don’t come to court, WHAT do they do?” Law has for the most part become the unpleasant way of dealing with possibly preventable problems, instead of a guide on how to do things properly. It is in this trauma, disruption and threats that lawyers have flourished. So that instead of paying a lawyer to advance opportunities or facilitate investments, clients end up paying lawyers to resolve a problem that they probably don’t understand, never asked for or could probably have avoided if they had contacted a lawyer as the others had done in the First set of Scenarios.

The effect of this mode of operation is that the law has traditionally been about the seller of the legal service. We call the shots. The client either pays up, acts up or perishes. We play the tune. The client has to dance. We have a very high opinion of who we are. As one lawyer said on a lawyers WhatsApp Platform a few days ago, “we are the midwives and gynaecologist of the law.” My uncharacteristically quiet and unexpressed quip was to quote the musician John Legend that “the future started yesterday and we are already late, buddy.”

What do lawyers traditionally and essentially do? Largely three things:

i. Resolve disputes,
ii. Advise on transactions, and
iii. Counsel clients on rights and duties.

In the course of doing these we produce heaps of legal documents, which Charles Dickens described in his 1853 epic Bleak House in these terms:

“… bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense…”

Researchers identify and advance three reasons for the traditional view of lawyers.

First, there has been a great imbalance of power between lawyers and clients. The clients know precious little of the law and have little to no ability to even assess the quality of the service they receive. It is exactly for these reasons that the law created the fiduciary duty that binds us to clients and holds us to the highest standards of performance and utmost good faith towards them.

Second, we have had and enjoyed monopoly over the provision of all kinds of legal services, and ensured by law that any attempt by non-lawyers to practice law is criminalised. Section 9(1) of the Legal Profession Act, 1960 (Act 32) says:

“Where a person who is not enrolled practices as a lawyer or prepares a document for reward, directly or indirectly to be used in or concerning a cause or matter before a Court or tribunal, that person commits an offence and is liable on first conviction to a fine not exceeding one hundred penalty units and for a subsequent offence, to a term of imprisonment not exceeding six months, or to a fine not exceeding two hundred penalty units or to both the fine and the imprisonment.”

Very few other professions have this protection. It is for reasons such as these that we love to argue that the practice of law is a profession and not a business. We belong to the “Ancient and honourable profession” of the law. Ours is a calling, not merely an industry, occupation or trade.

The fact is that medieval and early modern traditions recognised only three professions: divinity, medicine, and law. The Latin root of “profession” is profiteri, which has two components: pro, which means “forth” and fateri which means to “confess.” Taken together, they mean “to announce a belief.” The term therefore has religious roots. It is to bind yourself publicly by a vow or oath to a higher purpose or calling. If you embarked on any of the three professions, you professed it in the village square so that everyone knew that you would be serving a higher social need and that you could be approached for help. We invoked “higher powers” often a deity, as we made lifetime vows. The clergy vows obedience and poverty. The doctors recite the Hippocratic Oath. We swear allegiance to the court and the rule of law.

We were the so-called “learned professions.” But we coveted and appropriated the title “learned” when the other two were busy saving the souls of men (as in divinity) and lives of men (as in medicine.) That is in part the reason why we still wear a medieval attire to court: a wig, gown/robe, wing-tipped collars and bibs.

It is important, from time to time, to remind ourselves what the totality of this medieval attire stands for because, maybe, it typifies or symbolizes our inherent resistance to change.

Barristers’ gowns date back to the reign of King Edward III in the 14th century, when fur and silk lined robes were set down as a mark of high judicial office. This was also the correct dress for attending the royal court of the day. To make room for changes in the weather, green gowns were worn in the summer and violet in the winter. Red was for special occasions. The plain black gown, which Ghanaian lawyers wear today, was adopted in 1685 when the English Bar went into mourning over the death of King Charles II, who was a great friend of the legal profession in those days.

The robe/gown has that triangular piece attached to the back left shoulder. This is the so-called “money bag”. Legend has it that barristers were too high and mighty to stoop to ask clients for money. Instead, after finishing the day’s work, the barrister would walk out with his client in tow, and they would place guineas in the money bag. When I first read this, I wondered what happened to, or who emptied the “money bag” of, its contents when the barrister got to the office. Thankfully, this isn’t the only legend about the “money bag.” The dress makers Ede and Ravenscroft argue the money bags are actually the remains of an early monastic hood or a traditional hood worn during a period of mourning. Whichever version is true, the suggestion is that our profession is too high and mighty to dabble in lowly and worldly matters like money.

The wigs first appeared in the legal profession in the 17th century, also during the reign of King Charles II, during the Restoration of the English monarchy. They had been fashionable among the English upper class, and had gone out of fashion in the reign of King George III. However, barristers and judges continued to wear them in court to distinguish their profession from other members of society.

It was made from horse, goat or human hair. They however became difficult to maintain – they had to be frizzed and curled, then treated with a thick scented ointment known as “pomatum,” and then covered in a thick layer of powder. What we wear in Ghana today is what is known as a “tie-wig,” which became popular from the early 19th century. It has a fuzzed crown, with rows of curls known as ‘buckles’ along the sides and back, and a looped tail at the rear. If it’s made in Nigeria, it is likely to be made from plastic.

Our bibs, are also called “jabots” or “bands.” They first appeared in 1640 when lawyers swapped neck ruffs for ‘falling bands’ of plain linen. Today they consist of two rectangles which are said to represent the tablets of Moses in the Old Testament. It is fair to say that Charles II, in addition to being restored to the throne after the death of Oliver Cromwell, adorned the Bar with such enduring medieval clothes that even in the then unknown and future colony in West Africa, to be called “Ghana,” that attire would be worn by lawyers with much pride, love and affection in 2018, exactly 333 years after his death.

We are a profession and not a business. Yet section 52 of Act 32 defines the term “lawyer” as follows:

“’lawyer,’ for the purposes of the recovery of fees, includes a person enrolled at the time the relevant business was done; and, for the purposes of the preparation of legal documents…”

The Chapter of Act 32 on “RECOVERY OF FEES” also suggests that what we do is considered a “business.” For instance section 30 on “Bill for Fees” provides the conditions under which we may “commence a suit for the recovery of fees for a BUSINESS DONE as a barrister or solicitor.” Section 39 on “Delivery of Bills” provides for when the “Court may make an order for the delivery by a lawyer of a bill of fees for BUSINESS DONE by the lawyer.” And section 42 provides that the entire Chapter on Recovery of Fees (section 30 to 41) applies to the “executor, administrator and assignee of a lawyer in respect of BUSINESS DONE by the lawyer.”

Maybe, arguably, the law uses the term “business” loosely and not as a term of art. But in summary, we are a profession and not a business; except when it comes to matters affecting our fees.

Third, legal services are priced to serve the interest of the lawyer. Fees in Ghana, for the most part are based on (i) contingency, success or recoveries, (ii) a fixed fee that is almost arbitrarily imposed by the lawyer, (iii) a percentage of the value of the transaction in question, or (iv) in a few instances, hourly rates multiplied by an unspecified number of hours. Pricing that is based on the provider’s time and labour effectively shifts the risk of unforeseen developments onto the client.

TIMES ARE CHANGING

It has been important to set out the above in quite some detail, because, colleague lawyers, whether we admit it or not, times are changing. The priorities of the buyer of legal services are now emerging as the dominant force in the market. The fact is that a lot of our non-contentious commercial and corporate law work is now standardised and commoditised. Over time, several of our services have become relatively indistinguishable from competing offerings, and are easily replicated. And the work has also become systemised, relying heavily on the back office, emails, accounting, admin, work processing, and well-established legal research tools, such as WestLaw, LexisNexis and the Ghana Law Database. Legal expenses have been high. However, client-driven technology has become a key and central part of transformation of the legal profession, and this is having the effect of driving the prices down.

Writers on this topic have identified 6 main triggers of change.

First, TECHNOLOGY. We now have systems and software that can perform some of our functions, and with arguably more accurate results. I will go into more detail later in this paper because that is the focus this afternoon.

Second, THE INTERNET. This has lowered a lot of the previous barriers to access to legal information, and increased the clients’ “legal knowledge.” It has also enabled clients to communicate and collaborate to decide which transactions they would enter into without needing lawyers.

Third, GLOBALISATION. You no longer have to have a physical presence at a location to provide services. This has helped to reduce the cost of many services through outsourcing and offshoring of legal work to less expensive locations.

Fourth, REGULATIONS of legal services are beginning to liberalise and loosen. We may not admit it, but the 2013 Regulation by which the General Legal Council permitted lawyers in Ghana to own and run websites, was an acknowledgment that our regulations would have to move with the times, however reluctantly. We cannot remain such “incorrigible anglophiles” when England, the original source of our rules, is undertaking changes to the rules that we still hug, hang on to and consider so dear.

Fifth, all of the above triggers lead to more COMPETITION. And so there are “lawyer-like” services that sell cheaper. For instance, almost all of Ghana’s legislation is available on the internet and for free at laws.ghanalegal.com. Any lawyer who has studied the common law, can read our law and understand it. That, in part, is why some major non-contentious legal work that should come to Ghanaian lawyers are being done by English and South African law firms who will send you a draft opinion on Ghana law just to review, place on your letterhead and sign for a fee that is about a 100th of what they have charged for the work. Sometimes we have no contact with the actual client, just the intermediary instructing law firm. We might not admit it but the non-lawyer Commissioner for Oaths is competing with the lawyer Notary Public.

Sixth, and probably the strongest driver, is client EMPOWERMENT. Clients are beginning to realise that they can self-navigate some parts of the legal market without a lawyer, and rather successfully too. Thus even if they ultimately need us, they come to us with the work half-done or with some understanding on what is required. Thus they tend to negotiate lower fees than we have been used to.

Ladies and gentlemen, as the bounds of the law are widening, frightenly, our walls are closing in, frightenly. We have three choices. First, we may pretend that all these are not true and that everyone else is being an alarmist. Second, we may resist and fight, try to swim upstream or paddle against the tide. My view is that if we chose any of these two, we will flounder and drown. But third, and this is my hypothesis, the modern day lawyers have to recognise these threats or opportunities, reposition ourselves, redirect our energies and ride the tide.

TECHNOLOGY AND INTERNET

For the purposes of this paper I will focus on two of the six identified triggers and drivers of change; namely TECHNOLOGY and the INTERNET.

In the late 1980s, IBM developed a chess-playing computer called “Deep Blue.” The key question then was whether a computer could ever out-think the human brain, especially in a game considered as deeply intellectual as chess is. A match was therefore organised between Deep Blue and the acknowledged greatest chess grandmaster of all time, the Russian Garry Kimovich Kasparov. Kasparov won the first match of 6 games played in Philadelphia in 1996 by 4 games to 2.

After Kasparov defeated Deep Blue, IBM’s engineers sat down to re-design the computer. By 1997, Deep Blue had been programmed with algorithms that made it capable of evaluating 200 million chess positions per second. The second match was played in New York City in 1997. Deep Blue won by a closely fought score of 3½ to 2½. In this match, Kasparov won the first game. Deep Blue won game 2. The next 3 games were drawn by mutual agreement. Game 6 therefore became the decider. Deep Blue won by a move that connoisseurs have said could not have been made by any human being or mind. This was the first defeat of a reigning world chess champion by a computer under tournament conditions. The 1997 match was the subject of a documentary film, The Man vs. The Machine.

Deep Blue’s win was seen as historic and symbolically significant, a sign that artificial intelligence was catching up with and even surpassing human intelligence. It led to the rise and rise of the use of algorithms in computer programming, into all areas, including the law. By the way, an algorithm is a self-contained step-by-step set of operations used to perform calculations, data processing and indeed automated reasoning; and the law has not been left out of their reach.

Let us consider some examples, some of which might not be directly relevant to Ghana yet. But we cannot deceive ourselves that they will never reach here.

1. ONLINE DOCUMENT PROVIDERS: these companies provide (i) access to legal documents that clients can customize to their own specifications, and (ii) even referrals to lawyers in the customer’s jurisdiction to review the documents and address more complex legal issues. LegalZoom.com (“where life meets legal”) says on its website that “we simply do not believe that it should cost thousands of dollars to create a will, form a business, or apply for a trademark. So we started a movement to make legal help available to all.” It adds, “No complicated forms. No robots. Just answer some questions and we’ll take care of the paperwork for you.” RocketLawyer.com says on its site that it has generated over 3 million legal documents, adding that they are “All the legal help you need. Anytime. Anywhere,” and that “We’ll ask questions to build a document that fits your needs.” And these are not idle boasts. They actually do them. In Ghana, this preparation of legal documents would be a crime under section 9 of Act 32. But who is going to be jailed? The computer which prepares the documents? Or the persons who programmed it in America?

2. CONTRACT DRAFTING & ANALYTICS: these are programs that (i) create contracts from a massive database of precedents, and (ii) help in the contract lifecycle including conducting discovery and due diligence, thereby helping to manage rights, obligations and risks. Docracy.com was an open collection of legal contracts and open source law that taught how to negotiate and sign contracts online without any legal help. However, and I suspect, to the delight of several lawyers, after operating for almost 7 years, Docracy announced that it was shutting down from 1st July 2018.

3. LEGAL RESEARCH DATABASES: These are accessible online case law and legal knowledge systems. They significantly reduce time and effort and accuracy of research. For example in Ghana, the Ghana Law Database Project, called “Solon,” is a hypertext and hyperlinked, indexed database of all of Ghana’s statutes, reported cases and law journal articles. This is available online for a fee. There is also a product that has merged Solon with All England Law Reports. Just imagine: you have at your fingertips, ALL of these authorities to search at a go without having to go to the library, haul out heavy and often dusty books to look for a paragraph here and a paragraph there. Solon will show you those paragraphs within seconds and you can then simply “cut and paste” them into your work. In preparing this paper, it was Solon which showed me that the word “business” appears used 4 times in Act 32. I got naughtier, because of something I am going to say later in this paper, and which probably is going to get me into trouble. Solon showed me that the word or name “nana” is used 1,899 times throughout Ghana Law Reports (1959 to 2009.) The words “nana” and “akufo” appear together 138 times. The words “nana”, “akufo” and “addo” appear together 137 times. Solon informed me that twice in Ghana Law Reports, all in the case of Mensah v. Attorney-General [1997-98] GLR 227, and all in the judgment of Aikins JSC, the name “Akufo” was misspelt as “Akuffo,” at pages 240 and 247 of the report. THAT is how detailed the product is. You literally do not have to think or sweat to get the basic information through the hyperlinking. Research time is therefore reduced exponentially. I got even naughtier. Mr. GBA President, the name “Nutsukpui” appears 8 times in the Ghana Law Reports, according to Solon. If you discount the twice that were references to Republic v. Nutsukpui; Ex parte Egbortorwu (1968) C.C. 152, the six other times refer to a lawyer who is reported to have appeared three times, led by one Kuenyehia, and three other times on his own, all between 1991 and 2009. And although the name “Ankomah” appears 18 or so times, it is only twice that it actually refers to the presenter of this paper! Mr. Bar Secretary, the name “Amenuvor” appears three times, according to Solon. But all three times were in one case Ashanti Goldfields Company v. Liner Agencies [2003-2005] GLR 75, where you appeared as a junior to Kizito Beyuo, Esq. So Mr. GBA President, you are in a comfortable lead!

4. ONLINE DISPUTE RESOLUTION (ODR): Is the court a place or a service? If we have a dispute between us, why must I hire an expensive lawyer, show up in court to file processes, ensure physical service, for you to file yours, for pleadings to close, for directions to be taken, attend case management conferences, then issues to be settled, attending court for evidence, and ultimately judgment, when all I want is to have the service of the court without necessarily showing up in court? ODR is an internet-based system that affords rapid, affordable and relatively painless resolution of financial and personal conflicts. For example, in a year, roughly 20 million cases are filed in the United States courts. But ODR and E-Adjudication together resolve 60 million disputes every year between e-bay merchant systems, without any recourse to the court system. Modria.com says it has resolved over 400 million cases for companies like PayPal and e-bay, adding that it “is capable of handling all manner and volume of cases, from simple debt cases to complex child custody cases.” Ghana is getting there, very gradually. We now have the Written Submissions replacing viva voce closing arguments. Borrowing largely from arbitration processes, the 2014 amendment to CI 47 (i.e. CI 87) now, finally, provides for Written Witness Statements and testimony by video link. One of what was considered the key components of litigation, Viva Voce Evidence-in-Chief has just disappeared from our practice in one fell swoop. We are gradually moving from the time when the Supreme Court rejected evidence by PowerPoint presentation. The recently launched E-Justice process is automating this process even more. According to Kwame Abiabenu in his article titled How can e-justice make a difference in justice delivery? (https://www.graphic.com.gh/features/opinion/how-can-e-justice-make-a-difference-in-justice-delivery.html),

“…the e-justice system is made up of processes, software and hardware which facilitate case management such as e-filing, judge rosters, and case scheduling, courtroom recording systems, electronic notification systems and information websites for the public.”

He adds that because the

“…system is able to connect all the courts seamlessly, enabling case information exchange… the Chief Justice at the touch of a button can have a bird’s eye view on what is going on across all courts in the country, providing her a powerful tool for management of judicial services.”

I believe that the day is near when the wigs and gowns and bibs would be redundant not because we like or don’t like to look a Charles II-inspired medieval character, but simply because we would hardly have a physical appearance in court, especially in civil matters.

5. IN-HOUSE LEGAL OPERATIONS (“Legal ops”): legal departments in corporates are designing and building in-house systems to manage legal matters, and thereby speed up or replace traditionally hired lawyers, leading to legal cost savings for the corporate. The term “Legal ops” has gained currency as the leading cause of “insourcing” that reduces legal spend and outside counsel engagements in terms of time and scope.

6. LEGAL PROCESS IMPROVEMENT (“LPI”): This refers to project management and mapping to improve efficiency, effectiveness and quality. For instance, within law firms, creating a database of your precedents, opinions and court documents, would mean that you may never have to draft a document from scratch again. Then a simple computer search will show you, for instance, all the leases that the firm has ever drafted. You simply choose the most appropriate one(s), make changes and you are done. The results are quick turnaround time, quicker turnover of work, more work and arguably, more money in your “money bag.” It might also mean hiring less legal staff. Taking or making your secretary take a course in Word for Lawyers, would mean that you never again have to manually type out your own Table of Contents or Table of Authorities in your Written Addresses. Yes, the demand in Rule 15(6) of the Supreme Court Rules, 1996 (CI 16) that your Statement of Case should include “all relevant authorities and references to the decided cases and the statute law upon which the party intends to rely,” would be made simpler as in inserting the relevant codes as you type, the computer itself will generate on a designated page your alphabetical list of authorities (categorised into Cases, Statutes, Other Authorities, Treatises, Regulations and Constitutional Provisions), stating every page where those are mentioned.

7. LEGAL ARTIFICIAL INTELLIGENCE: These are sophisticated diagnostic expert systems that are tackling multijurisdictional questions. The systems now convert lawyers’ knowledge into complex algorithms that answer legal questions. Predictive analytics can now forecast the outcomes of litigation by analysing massive case law databases. Lexmachina.com has gathered all 30,000 US cases on intellectual property. You simply type your problem and the machine will predict how your case will go and print out the “legal” advice. Encouraged by the success of Deep Blue, IBM has now designed “Watson,” an artificial intelligence platform for business. ROSS Intelligence is a startup which relies on Watson to help lawyers find relevant cases using natural language search. The application allows you to ask your questions in plain spoken English, as you would a colleague. Touted as the “Robot Lawyer,” ROSS then reads through the entire body of law and returns a cited answer and topical readings from legislation, case law and secondary sources to get you up-to-speed. ROSS’ owners say the application is not designed to replace lawyers, but rather help us with knowledge management: keeping up with all the latest laws. We know better than to accept this assurance.

MOVE WITH THE CHANGING TIMES

Sam Levenson, the American humorist, writer, teacher, television host, and journalist, wrote: “Don’t watch the clock; do what it does. Keep going.”

Permit me once more anecdote, if we can afford to laugh at ourselves. I hear that in 1999, the Greater Accra Bar had a full discussion on whether or not lawyers should be allowed to have email addresses. I was informed and verily believe same to be true, by a colleague who was present at the meeting. I tried to check. I called the current secretary to the Greater Accra Bar. It was a short phone conversation. He said “senior, we do not have any records, minutes or resolutions for those years.” In 1999, my then 7-year old niece was learning computer coding in primary school elsewhere. The future started yesterday, and we are already late.

If the Bar has hardcopies of these records, all it needs today is a computer with a good Optical Character Recognition (OCR) scanner and one data processing clerk. In less than a year, we will digitise all our past records. It is not impossible in Ghana. The Registrar-General’s Department has almost completely digitised current company records, making long delays for search results on companies almost a thing of the past. The Collateral Registry has made it possible to register transactions and file searches from your own computer in your office.

It is against the background of the reluctance to change or reticence of lawyers that in his book titled The End of Lawyers? Rethinking the Nature of Legal Services, Richard Susskind referred to research that suggests that traditional lawyers will soon and in large part be

“replaced by advanced systems or by less-costly workers supported by technology or standard processes, or by lay people armed with online self-help tools.”

Good to know and observe. But I do not agree with some of Susskind’s conclusions. We are not about to disappear as a profession anytime soon. We must remain anchored to our oath of fidelity to the courts and the rule of law. But we certainly must become geared to the times. Mmre re dane. We have to dane ourselves to it. The author Max DePree said in his book Leadership is an Art, that

“In the end, it is important to remember that we cannot become what we need to be, by remaining what we are…”

Ghana is severely, ‘legally underpopulated,’ with roughly 3,000 registered and practising lawyers. Matched to a population of roughly 27 million, the ratio is 1:9,000. This compares with the US’ ratio of 1:265, Brazil’s of 1:326, the UK’s of 1:401 and France’s 1:1,403. But this will not be for long. This year, 1,800 students sat the entrance exam to enter the Ghana School of Law’s professional program. Only 500 will be admitted. The 1,300 not admitted will re-sit next year together with the fresh graduates from the various faculties, probably another 500. If we want to move with technology, now is the time to start.

Colleague lawyers, some international law firms with the same or more lawyers across the globe than we have in Ghana are deploying and relying on modern day technology for a good part of their work. For instance, both Latham & Watkins (with only 2,600 lawyers but earnings of $2.823 billion in 2017 – making it the world’s richest law firm) and Dentons (with 7,000 lawyers and earnings of $2.205 billion in 2017 – making it the 6th richest law firm in the world), are currently using the ROSS Intelligence, the “Robot Lawyer” based on IBM’s Watson. DLA Piper (with 4,200 lawyers and earnings of $2.47 billion – making it the 5th richest law firm in the world) uses machine-learning systems for document review during due diligence processes for M&A transactions. Clifford Chance (with 3,300 lawyers and earnings of $2.087 billion in 2017 – making it the 7th richest law firm in the world) uses a range of Artificial Intelligence systems in conducting e-discovery, cybersecurity, and contract and document review. By the way, both Dentons and DLA Piper have associated firms in Ghana, and I can only guess that the lawyers in Ghana, have access to these facilities right here from their offices in Accra. If you are surprised, I will simply tell you that “the future started yesterday, and YOU are already late.”

Let us contrast this with Ghana’s largest ‘law firm,’ by a mile and more, that is the Attorney-General’s Department with 190 state attorneys. According to the Bar Association if you add up the lawyers in all the government ministries, departments and agencies, we have as many as 800 lawyers in the ‘law firm’ I choose to call “Ghana Incorporated.” I will speak generally on this matter. There is hardly a ministry, agency or department in Ghana that has reliable internet service. Not Parliament. Not the Judicial Service. Several officials do not have government-supplied email addresses on the government’s registered domain “@ghana.gov.gh”. They are often compelled to use their private email addresses for official government business. I know that sometimes, persons from other countries whom we deal with in international matters involving the government, are shocked that the email addresses provided by leading government officials including Ministers and Members of Parliament, are from free and easily hackable domains such as Yahoo, Hotmail and Gmail. They have sometimes expressed concerns about the security of such email systems considering the sensitive or confidential nature of the matters that have to be transmitted through such private email addresses to and from the government. One said to me, “Ace, my son can hack these email addresses from his phone, through phishing and spamming!”

But even this is an improvement. A few years ago, a local firm on the other side of arbitral proceedings involving the government, had to accept to receive procedural orders and documents meant for the government, on its email system, print out hardcopies and deliver them to the AG’s office. I said I was going to get into trouble, right?

If I may be permitted an impetuous breach of protocol here, and allowed to court some trouble, Mr. President (this time, of Ghana) I speak as a lawyer who has had the ‘unfortunate privilege’ of conducting quite a few cases on the other side of the Government of Ghana; and it is probably in my interest that the current state of affairs remains, as it gives the other side an upper hand. But as a Ghanaian first, I am pleading with you, “Please fix this.” What is at stake and what we might lose or are already losing, are much higher than what we would invest in these resources.

For the government and all of us, I guess that it is a “chicken-and-egg situation.” Should we invest in technology and innovation now, or should we wait and make the money before investing in them?

I have a few suggestions. You don’t have to start big. You may start small. But whatever you do, START now! Each of us with a smart phone with internet connection has in her or his hands an awesome information tool. Yes, google.com and bing.com may not be acceptable tools for serious legal or academic research. But as a rough-and-ready and quick reference point, they are fantastic if you know how to use them. When I was a law teacher, and even after that, I enjoyed locating and reading from law lecturers from several law schools across the globe who have uploaded their lecture notes onto the internet. Loads of legal dissertations and theses are fully there or have abstracts uploaded on to the net. A careful search and trawl through these can lead you to several new thinking and new decisions on legal matters, and which you may use as a basis for further research.

And by all means get the Ghana Law Database. Save up and buy it. It is an absolutely fantastic and invaluable tool for your work. I am lucky or blessed to have it on my computer. Mr. President, each of the 800 lawyers who work for “Ghana Incorporated,” each of the 275 MPs and every ministry deserve to have this tool as well. A part of the project is currently bogged down over royalty issues with the government that could be easily resolved. The future started yesterday and we are already late.

My Learned Friends, the computer in your office should not remain a glorified typewriter. Get an internet connection. Build an office network. Microsoft Outlook, which may carry your emails is also a fantastic diary. Get your secretary to enter all court and meeting dates and appointments into it. Get your email set up on your phone. For your own sake, abandon Yahoo and Hotmail addresses. Gmail and iCloud are more respectable. Please drop those fanciful email addresses like hotbabe@hotmail.com, sweetiepie2015@yahoo.com, or hunkdude2000@gmail.com. And if you have them do not put them on your business cards. No one takes them or you seriously. Ideally your firm should have its own domain name so that your email address would be, e.g. amaakosua@amaakosuachambers.com. Such domain names come automatically with your website. When you set these up, your computer can send you reminders of all the court and meeting dates that your secretary inputs, 24 hours before the event (so you could prepare) and at 6:00am everyday so that you don’t arrive at the office dressed in your preferred “joromi” or “dashiki” only to realise that you have a court date that you had forgotten about.

After so many years of being a lawyer, surely, you have enough internal precedents and memoranda to build you own database. Hopefully these are saved on a computer. Start building your own in-house precedents and memoranda database.

Learn how to type. By typing I am not referring for the hunt and peck typing popularly called “A wↄ he, B wↄ he?” You do not have to attend a formal typing school. Simply download the software that perfected my typing, called Mavis Beacon. It is free on the net. I learnt how to type by playing typing games on Mavis Beacon. Spend just 30 minutes a day on it and see how far you would have reached in a year. While at it, study Word for Lawyers. Please stop depending on your secretary or PA for the simplest of computer responsibilities. Being BBC (“Born Before Computer”) is no excuse for not being able to operate on the day the secretary calls sick or is late to work. Spend some time each day mastering navigation on the computer, understanding what a mouse does, what a click is, what a double click or right click does.

If you have WhatsApp on your phone, let it not be used for just forwarding pictures, scripture and/or naughty jokes as the case may be. Form a WhatsApp group of the lawyers in your firm. If a matter comes up that you need help on, one text will reach all of them, and you might get an answer quicker than it would take for you to go and search for it. If you are locked up in one court and another client is texting that your matter before another court is about to be called, a quick WhatsApp message to your platform can ascertain who from your firm is also in the building and can appear in your stead, at least to beg the judge for an adjournment, instead of your case being struck out for you not showing up in court. And someone has to pay for that application to re-list, either you or the client. But it then means that someone has lost money when that situation might have been prevented by a simple WhatsApp SOS message.

There are several good examples of the use of modern technology by law firms, right here in Ghana. One firm wants its clients to know in real time what is going on with their matters. So they are developing an app that will link clients directly to their electronic folders or files at the firm. The clients will have passwords that will take them to their files and those alone. In my chat with them I also suggested that having a culture of preparing client Attendance Notes that are emailed or sent to the client within say 24 hours of every court appearance or meeting, would also give the client real time but non-intrusive information on what is happening on the matter. And the good thing is that these Attendance Notes come in handy when you have to prepare your written submissions or when 5 years after concluding the matter, the client comes alleging that you did not do you work well. As in one instance, a law firm was able to produce a detailed sequence of events with dates and records of almost every interaction with the client.

Probably further up the spectrum is another firm which has a fully stocked IT Department staffed by IT professionals, with racks of servers and possibly “Ghana-level” state of the art equipment. They have an IT Strategic Document that says that the Department’s aim is keeping the firm current through a routine biannual PESTLE (Political, Economic, Social, Technological, Legal and Environmental) Analyses, and “to help the Firm provide relevant customer-centric legal services that are timely.” Having been the subject of a malware hack a couple of years ago, they now have a back-up server completely offsite, and which is updated at least daily. They mirror the production server onto the back-up server so that whenever there is a disruption on the production server, they would use the back-up server as the new production server. They already have plans to replace the internet link with a microwave, vsat or radio link, to back up almost every minute and in real time.

H. Thomas Johnson, the American Accounting Historian and Professor of Business Administration stated poignantly:

“Perhaps what you measure is what you get. More likely, what you measure is all you’ll get. What you don’t (or can’t) measure is lost.”

Colleague Lawyers, innovate or perish. Develop or expire. Transform or disappear. Reconstruct or deteriorate. Rethink or disintegrate. Alvin Toffler said that the illiterate of the 21st Century would not be those who cannot read or write, but those who cannot learn, unlearn and re-learn. It is really that simple, almost binary. We may call it the new Darwinism. Steve Jobs is quoted as saying “innovation distinguishes between a leader and a follower.” Innovation is no longer a “nice to have.” It is now a “must have.” And so Jobs’ statement does not go far enough. Innovation distinguishes between thriving survivors and barely breathing. It has been said that it is no longer “survival of the fittest” but “survival of the most innovative.”

But it is not all doom and gloom for us. The Bar is catching up, gradually. Today, if the Bar has your address, you receive emails of Cause Lists, Rotation of judges, meetings etc. Before arriving here, I received through WhatsApp, the 8-page agenda for this conference, the 20-page audited accounts and the 220-page programme brochure. To paraphrase from Neil Armstrong, these are “a few small steps by the Bar, but giant leaps for lawyers in Ghana.” In keeping with this challenge, I will not give a hardcopy of this speech to any member of the Bar. If you want a copy, please contact the secretary to the Bar. Yesterday, I emailed the speech to him. He will send it to you either through your email or WhatsApp. Hopefully that email address will not be LawyerOne@Hotmail.com or YaaBaby@Yahoo.com.

Permit me to end by sharing my ‘borrowed’ mantra. When others sit, stand. When others stand, stand out. When others stand out, be outstanding. And when all are outstanding, be the standard.