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The Dangers of Non-Technically Trained Lawyers Advising on Technological Matters
With Ronald Yu (MakeBell Limited) and Donald Day (VDX)
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 (CityU's) School of Law and a part-time law lecturer at Peking University.
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As a scholar and author, his areas of interest are the nexus of law and tech: intellectual property (IP) and non-fungible tokens (NFTs), artificial intelligence (AI) and its legal ramifications, cross-border data flows across APAC, as well computer forensics. At The University of Hong Kong (HKU), he has taught courses on patents, as well as IP information technology. He has also lectured on FinTech at CUHK, while also teaching courses on the commercialization of IP, and patent law at CityU. He has also taught on IP strategy at the Hong Kong University of Science and Technology, and the Hong Kong Polytechnic University.
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 was also an in-house cryptocurrency/digital asset expert at Hong Kong’s capital markets regulator, the Securities and Futures Commission, where he helped shape the licensing regime for virtual asset trading platforms, and designed and lead the supervision of virtual asset fund manager and trading platforms.
In this episode of Regulatory Ramblings, Ron and Donald chat with host Ajay Shamdasani on the potentially pernicious 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 arcane ways and ultimately, it is clients that pay for what lawyers either do not know or assume, the guests share. In an age of AI, machine learning and large language models (LLMs) – they do not go as far as to say lawyers need to learn how to code, but counsel need to understand the practical legal, business, financial and reputational implications of such technologies for their clients.
Technology can, at times, change the rules of the game, Ron and Donald stress. Yet, they also point out that sometimes lawyers 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.
The discussion moves onto how rare it is to find those that are technically trained and also licensed, practicing lawyers. Clearly, the more technical a subject, the less likely an average dispute resolution practitioner at the typical multinational, Anglo-American law firm is going to be up to the task. Our guests acknowledge that leaves clients a very narrow field of specialists to choose from if they want to be represented by lawyers who both understand both the law and the underlying technology involved.
Yet, as Ron Yu notes, even 'non-techies' can bring themselves up to speed by educating themselves, pointing to the living example of US federal judge Randall R. Rader - as has been the case with FinTech and cryptocurrencies.
Lawyers often view technology through the lens of the legal and regulatory compliance implications, with less focus on the implementation of a particular technology. How it will work, and how and where best to use it is an afterthought. As for cybersecurity, it is regarded as an IT issue, they say. If a lawyer overlooks the cybersecurity issues, Yu said, then they are glossing over important technical details which can harm a client.
The conversation concludes on the point that when it comes to 'tech lawyers', it certainly seems that, generally speaking in APAC, those practitioners that market themselves well have the biggest platforms and the loudest voices and are, therefore, regarded as authorities in their respective fields.
Clearly. there are times where there is no substitute for the right kind of technical background. For example, as Donald Day recalls, patent litigators not infrequently have to deal with solicitors who don’t understand the tech and those solicitors soon become a hindrance.
Both guests underscore the lingering perception that it is not ideal to engage in IP-related litigation in Hong Kong because of the lack of talent; even if a specialist carefully explains something to a solicitor, the latter will invariably get it wrong or simply not understand the subject matter.
Podcast Discussion
The full conversation, marked with key topics/chapters on the player, spans about 73 minutes.
03:24 Intersecting Realms: Non-Technical Lawyers and Technical Expertise in Legal Practice
09:02 Deciphering the Code: The Role of Legal Practitioners in an Increasingly Technical World
17:45 Tech Literacy for Lawyers: Navigating Smart Contracts and Beyond
25:32 Tech Savvy and Legal Deals: Avoiding Pitfalls
40:17 Beyond Technology: Complex IP and Financial Considerations in Legal Practice
45:08 Balancing Expertise and Common Sense in Legal Proceedings
54:13 Ensuring Legal and Technical Competency in Virtual Asset Licensing
1:04:11 Adapting to Change at the Intersection of Law and Technology in Fintech
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Regulatory Ramblings podcasts is brought to you by The University of Hong Kong - Reg/Tech Lab, HKU-SCF Fintech Academy, Asia Global Institute, and HKU-edX Professional Certificate in Fintech, with support from the HKU Faculty of Law.
Useful links in this episode:
You might also be interested in:
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New book by Ross Buckley, Douglas Arner & Dirk Zetzsche - FinTech: Finance, Technology & Regulation
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Building Better Financial Systems: FinTech Sustainability - Research
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HKU-SCF Fintech Academy - website
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Asia Global Institute - website
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Most sought after Fintech course on edX - Introduction to Fintech
Regulatory Ramblings Podcasts List
Regulatory Ramblings Podcast
Welcome to Regulatory Ramblings, a new podcast from a team at The University of Hong Kong on the intersection of all things pertaining to finance, technology, law and regulation. Hosted by the HKU Reg/Tech Lab, HKU-Standard Chartered FinTech Academy and the HKU-edX Professional Certificate in FinTech, join us as we hear from luminaries across multiple fields and professions as they share their candid thoughts in a stress-free environment - rather than the soundbites one typically hears from the mainstream press.
Regulatory Ramblings is a forum for those that appreciate long-form conversation. While it is something that may be regarded as lost art of an older time, it is nonetheless sorely needed in an age when glibness and flippancy pass for analysis in conventional journalism.
Having said that, we are grateful to be able to avail ourselves of modern technological resources to bring you chats with people you are probably not going to hear from elsewhere.
Ajay Shamdasani is a veteran writer, editor and researcher based in Hong Kong. He holds an AB in history and government from Ripon College, JD and MIPCT degrees from the University of New Hampshire Franklin Pierce Law School, and an LLM in financial regulation from the Illinois Institute of Technology’s Chicago-Kent College of Law.
His 15-year long career as a financial and legal journalist began as deputy editor of A Plus magazine – the journal of the Hong Kong Institute of Certified Public Accountants. From there, he assumed the helm of Macau Business magazine as its editor-in-chief, and later, joined Asialaw magazine as its deputy editor. More recently, he spent close to seven years as a senior correspondent with Thomson Reuters’ subscription-based trade-wire service Regulatory Intelligence/Compliance Complete (previously called Complinet) in Hong Kong. While there, he covered regulatory developments in that city, as well as Singapore, India and South Korea.