Jurisdictional Restrictions on Cross Border Practice of Law: Will Technology make a difference?

Historically, jurisdictional restrictions on cross border practice of law were not of concern to countries due to the fact that most clients’ legal matters were confined to a single jurisdiction and a lawyer’s familiarity with the laws of that jurisdiction was the most important qualification. However, due to rapid globalisation of economies and societies made possible through technology, clients now need lawyers to assist them in cross border transactions or to advise them on laws of different jurisdictions. While this realisation is compelling lawyers with local expertise to internationalise their legal services, most jurisdictions still have in place regulations restricting the practice of law to only those admitted to practice in their respective countries. Notwithstanding these restrictions, technology continues to make the practice of law a global phenomenon and there is need to address the law “as it is becoming” in contrast to the law “as it has been”. With this in mind, the primary research question this thesis will engage is – to what extent will jurisdictional restrictions on cross border practice of law be impacted due to technological change? This question will be addressed by utilising a socio-legal methodology, supported by the ideology of Jacques Ellul in relation to technology, to examine how technology drive changes in society, and in particular, changes in the legal profession. Reliance will be placed on the substantive theory of technology to examine the seeming impossibility of controlling technology for the purpose of stopping legal issues crossing borders, since technology is a dominating force whose progression is capable of directing itself without human intervention. Ultimately, this research aims to utilise the substantive approach as the theoretical foundation for evaluating the extent to which technology is likely to make the practice of law borderless. The outcome of this research is intended to encourage national regulators of legal practice to give due consideration to the review of current rules on cross border practice of law, especially amongst jurisdictions with trade proximity and similar legal systems, in light of technology advancements.