Getting Ready: The Continuing Case for Technological Competence

Canada’s law societies have long had a reputation for being slow, if not resistant, to change. I’ll leave it to others to argue the extent to which this has been, in the past, a fair characterization. Looking at current initiatives like the Nova Scotia’s Barristers’ Society’s Transforming Regulation consultation and the work of the Law Society of Upper Canada’s Working Group on Alternative Business structures, it is apparent that right now there is significant “big picture” thinking going on at Canadian law societies about how to innovate and modernize lawyer regulation.

It remains to be seen, of course, if and how this “big picture” thinking might translate into tangible changes. At the moment, though, there does seem to be reason to be cautiously optimistic that we are on the cusp of significant reform in how the legal profession is regulated in Canada. Are Canadian lawyers ready for it?

To be sure, this is a difficult question to answer in the abstract. What does it mean to “get ready” for regulatory change when one doesn’t yet know what this regulatory change is going to look like?

I want to offer one modest suggestion: it’s time to get serious about technological competence. Lawyers share with law societies a reputation of being slow and resistant to change – for the legal profession, this reputation is particularly pronounced when it comes to embracing technology.

While technological competence might once have been properly seen as a helpful but optional skill set, this is no longer the case. Technological competence is now essential to delivering effective and ethical legal services. It will only become more important if and when regulatory reforms open to the door to new ways of delivering legal services.

Many of us have heard anecdotal accounts of lawyers who stumble using mainstream technologies or who eschew using such technologies all together to the detriment of their clients. In the last year, Casey Flaherty, corporate counsel for Kia Motors America Inc., has received attention for the basic technology competency audit that he developed and administered to law firms retained by Kia. The results he reported in July 2013 were concerning: “all the firms failed—some more spectacularly than others”.

If technological competence is the problem, what is the solution? I have argued elsewhere that law societies should seriously consider amending their respective codes of conduct to add an affirmative duty on lawyers to understand the benefits and risks of available technologies relevant to the modern practice of law. But beyond more regulation, what can lawyers themselves do?

One interesting possibility is presented by the Law Society of New South Wales’ Technology Mentoring Program. As described on the Program’s website, the aim of the program is to link “more experienced practitioners” with “technology practitioners”. Once linked, the Program seeks to facilitate a skills exchange whereby the “more experienced practitioner” will “receive practical exposure to and gain competence with legal technology in day to day practice” and “the younger or less experienced peer [will] gain guidance in their personal and professional life.”

One might rightly question the assumption that the program seems to be operating under that technological competence is somehow inherently positively co-related with being “younger or less experienced”. Nonetheless, the underlying idea of a skills exchange is an interesting twist on the typical conception of a mentoring relationship as involving mostly unidirectional imparting of knowledge and advice from the more experienced to the less experienced. A model that involves a more bilateral skills exchange strikes me as something that Canadian lawyers might want to consider pursuing when it comes to building capacity in the area of technological competence.

Developing technological competence isn’t a panacea for all the challenges that regulatory reform might bring. It is, however, a small step in the right direction. Why not start now?