In this episode of Regulatory Ramblings, Ron Yu and Donald Day 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.

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.

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.

Donald Day is the chief operating officer of FinTech start-up firm VDX, which is building a digital asset eco-system for institutional investors.

HKU FinTech is the leading fintech research and education in Asia. Learn more at www.hkufintech.com.