Chatting with a pair of techies about non-tech savvy lawyers
By Ajay Shamdasani, host, Regulatory Ramblings Podcasts *
Episode #44** of HKU Law’s Regulatory Ramblings podcast*** is one I’m still reflecting on. It was an episode we titled The Dangers of Non-Technically Trained Lawyers Advising on Technological Matters. I was afforded the chance to have a long, deep conversation with two of my favorite people – Ronald Yu and Donald Day: both are dear friends of myself, the program and HKU. And both men have computer science backgrounds, which made them ideal to discuss the topic at hand.
Ronald Yu is the director and co-founder at MakeBell Limited. He is also a visiting fellow at the City University of Hong Kong's School of Law and a part-time law lecturer at Peking University. He has also taught courses on patent law, and intellectual property and information technology law at HKU.
Donald Day is the Chief Operating Officer of FinTech start-up firm VDX, which is building a digital asset eco-system for institutional investors. He is also an Adjunct Professor at Chinese University of Hong Kong and co-founder of CFAAR, a not-for-profit organization advising on events involving crypto fraud and asset recovery.
Our discussion focused on the dangerous consequences of non-technically trained lawyers - specifically, those without degrees or substantial experience in science, technology, engineering or math (STEM) - offering advice in situations where technology is either implicated or at the core of the matter. The law can be unforgiving to those that are ignorant of its often counterintuitive, arcane ways. Ultimately, it is clients that pay for what lawyers either do not know or assume, the guests share, both Don and Ron stressed.
In an age of artificial intelligence, machine learning and large language models, they did not go as far as to say lawyers needed to learn how to code. Yet, both outside and in-house counsel needed to understand the practical legal, business, financial and reputational implications of such technologies for their clients.
Both guests agreed that technological changes could signal a paradigm shift. Yet, they also stressed that lawyers sometimes suggest contractual terms that are legally feasible but based on current technology, impractical – such as the Bitcoin 10-second consensus period: a performance requirement that is not possible to do. As our guests explain, if there are terms in a contract that are unworkable, it could lead to a lawyer killing a deal either out of ignorance of the underlying technology or a lack of commercial acumen.
A point that resonated with me because a popular critique of lawyers and compliance officers is that they are rigid and constantly telling their clients what they cannot do on account of some rule or the other. All too often lawyers are seen as being deal-killers.
I recall my investment banking professor in Chicago once telling me that on a deal he worked on, they sent most of the lawyers out of the room until they were ready to sign the contract. The lawyers that were allowed to stay in the room and hammer out the details were those that knew not just the law, but were also commercially astute such that they could offer practical business advice (And yes, there were certainly lawyers on the team the bankers did not care for because they were regarded dealbreakers because of their rigidity in construing the rules).
The lesson is clear: the legal profession is about more than just spouting rules and regulations, but about using that knowledge to facilitate creative solutions.
Yet, if that is the case, how does a non-techie lawyer add value in an age when technology seems to matter more and more?
All is not lost, however. According to Ron, a non-tech savvy person can bring themselves up to speed. He cited the example of Randall Rader, the former chief judge of the US Court of Appeals for the Federal Circuit in Washington, DC, who graduated from college with a degree in English literature before going to law school. “He is regarded as one of the best patent law judges on the federal bench,” Ron said. Don added that especially here in Hong Kong there is a growing number of lawyers who do take the time to inform themselves of the more nuanced details of technology. In addition, Don pointed out, the best lawyers are those who are humble enough to use experts in the field to support their case work.
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