Digital Transformation of Business and Legal Practice
Digital technology and data-driven strategies are transforming how our clients do business and how we practice law. It is essential for lawyers to attend to this complex interplay of what digital technology can accomplish, what risks it creates, how people act, the legal rules that govern conduct and transactions and what we as lawyers do for our clients. Our inter-disciplinary Digital Assets practice serves this purpose, to make us more useful and effective lawyers in this period of on-going digital transformation.
Benefits of Digital Commerce
Use of digital technology in business, finance and legal practice has expanded exponentially during the past decades and is accelerating. Technology has evolved to make certain electronic transactions more reliable, secure, cost-effective, convenient, and efficient than traditional paper-based transactions. Digital records have become a unique asset class capable of functioning in a manner comparable to negotiable instruments, as a store of wealth which can be instantaneously and securely transferred. Distributed ledger platforms, self-executing “smart contract” programs, robotics and artificial intelligence (AI) have become the new frontiers of the digital revolution in business and commerce. The application of AI to massive amounts of data in electronic records is creating a new business asset of enormous value driving corporate strategies and transactions. AI & Data Law
Risks and Pitfalls of Digital Commerce
But these technological advances have created novel legal issues, such as uncertainty as to whether digital transactions constitute the sale of securities; uncertainty as to the governing law applicable to such transactions for purposes of regulation, liability, and taxation; uncertainty as to ownership of digital records and the data they contain; and uncertainty as to the legal rights Non-Fungible Tokens (NFTs) may purport to evidence in other forms of property. The use of digital records recorded on the different types of evolving distributed ledger platforms, including blockchains, raises legal questions concerning the proof required to establish, enforce and defend legal rights.
Digital technology has also raised serious social and regulatory concerns and enormous potential for abuse. The recent collapse of market value of certain digital tokens and the associated rash of insolvencies and accusations of fraud affecting exchanges on which such tokens traded and the investment entities which purported to hold such assets is the most striking example of these problems. Digital commerce faces increasing demands for greater privacy, financial and environmental regulation, and stricter licensing schemes.
Moses Singer Practices Work Together in Our Digital Asset Practice
Many of our traditional practice areas have been dramatically affected in a myriad of ways by technology and the development of digital commerce and digital assets. Our Banking & Finance practice group is focused on financing transactions implemented by digital records including digital trade financings and digital letter of credit transactions; our Corporate practice group and Securities, Capital Markets & Financings practice must deal with transactions implemented electronically, with the growth of M&A and other transactions driven by the value of electronic data, and with questions as to the regulatory regime applicable to sales of electronic “securities.” Our Bankruptcy & Creditor's Rights practice group faces novel issues in cases where business failure involves companies conducting business in highly volatile or inadequately regulated digital assets. Our Intellectual Property, Media/Entertainment & Technology practice group deals with transactions requiring clarity as to the rights of transaction-parties in data embodied and utilized in electronic form or electronic records purporting to evidence rights in other intangible property. Our Privacy & Security practice addresses issues related to electronic data containing highly confidential personal information and to digital healthcare. Even traditional Real Estate and Private Clients practice groups face issues concerning the integrity and admissibility into evidence of electronic instruments.
Our Litigation practice group must address novel issues arising from the fact that electronic records are required to prove essential elements of a case, the uncertainty created by the fact that transactions closed using the internet may have no clear jurisdiction or “venue,” and determining the standard of care that might be applicable to injury caused by the application of AI to data or by a robot.
Many of the industries we serve, including banking, securities, healthcare, investment management, and custodial firms, will be subjected to new regulatory regimes to deal with issues created by digital assets.
The members of our Digital Assets practice combine their recognized ability in solving traditional legal problems with their insights into innovations in legal practices needed to help our clients obtain the benefits of new technologies while navigating the novel legal issues that technology creates.