Ride the Lightning

Will Lawyers be Docked for Non-Attentive Hours?

August 16, 2022

Above the Law reported on August 12 that the Law Society of England and Wales commissioned a report on neurotechnology, law and the legal profession. Neurotechnology is when a device interfaces with the nervous system and monitors and/or regulates neural activity. The paper’s author is University of Sydney’s Dr Allan McCay.

Will we lawyers someday face ‘billable hours’ vs ‘billable units of attention’?

McCay suggests that the current reality of detailing your workday in six-minute intervals will evolve to the hellish future of having a device monitor how much attention your brain is really paying to the work you’re doing before a client will agree to pay your legal fees.

The bottom line is lawyers might try to gain an edge over competitors by staying ahead of AI systems by using neurotechnology to improve their workplace performance. Perhaps clients will gravitate to this.

One can imagine changes to billing that may be brought about by the attention-monitoring capacities of neurotechnologies. This might prompt a shift from billable hours to billable attention.

The report makes its prophesies:

“Perhaps the day might come when some clients prefer cognitively enhanced lawyers who only work on their matters when they are fully attentive. Whilst the legal profession currently has a variety of approaches to billing including forms that are responsive to the employment of technology in legal work, one metric that many lawyers will be familiar with (perhaps too familiar) is that of ‘billable hours’. In light of the development of attention-monitoring neurotechnologies, the billable hours metric might become too crude for some clients who might prefer to pay for ‘billable units of attention’. In this connection it is interesting to note that the practice of billing by the hour, which arose in the 1950s, was initially client driven, coming from inhouse legal departments. Maybe the inhouse legal departments of neurotech companies might one day drive the development of the billing innovation considered here. The shift to billable attention would involve the gathering of lawyers’ brain data, which could perhaps be reused for other purposes such as making inferences about things other than their states of attention. The mental privacy dimension of a firm’s brain-monitoring system seems unsettling to say the least and one may well see such billing practices as concerning for other reasons.”

As I write, the New York Times has reported that we are watching employees of Amazon, Kroger cashiers, UPS drivers and millions of others – all being subjected to monitoring. Why not lawyers?

While neurotechnologies to track lawyers’ attention span might be far-fetched today, bear in mind that no one thought that employee monitoring would begin with those in blue collar jobs and then spread to white collar jobs and even roles that require graduate degrees. But it has. Food for thought . . .

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225, Fairfax, VA 22030
Email:   Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
https://senseient.com
https://twitter.com/sharonnelsonesq
https://www.linkedin.com/in/sharondnelson
https://amazon.com/author/sharonnelson