Exactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves (for discussion of what minimum tech standards might look like, see Mitch Kowalski’s and Omar Ha-Redeye’s previous Slaw posts here and here). There is a growing consensus, however, that all lawyers require some level of technological competence in order to meet their professional obligations.
But how do we make universal technological competence a reality? I have previously suggested that law societies consider amending 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. Although professional rules can be effective in disciplining mal-intentioned or underperforming lawyers, they also are limited in their reach. One major constraint is that rules address problems on an after-the-fact basis rather than preventing problems before they occur (for further discussion, see here).
So, what might be a more pro-active approach to lawyer technological competence? In a Slaw a few months ago, I highlighted the interesting technology mentorship program instituted by the Law Society of New South Wales. A more recent local development is the Canadian Bar Association’s newly updated guide for Practicing Ethically with Technology (full disclosure: I was the Research Director for this project). As explained in the guide:
Given the range of ethical questions raised by using technology in a law practice, and the diversity among law practices, we don’t claim to offer a comprehensive resource, or to be prescriptive. Our goal is to help [lawyers] spot potential ethical issues related to the use of technology and to direct you to resources to determine best practices and solutions that are appropriate for your situation. The five areas covered – confidentiality, security, marketing, providing services electronically, and accessibility – were identified as areas where lawyers most often face ethical risks in using technology. There are other areas of concern and new issues will emerge as both the law practice environment and available technologies evolve. Learning how to practice ethically with technology should be approached as an ongoing and dynamic task.
To be sure, this guide is no panacea for ensuring that Canadian lawyers have the technological competence necessary to meet their professional obligations. It is hopefully, though, a helpful resource that lawyers can use as a starting point to self-assess what competence gaps they may have when it comes to using technology in their practices and gain a better understanding of the ethical risks they may be exposed to as a result.
Above all, it is clear that the technological competence of lawyers is something that needs to be addressed head-on by lawyer regulators and the profession. In addition to pressing client service issues and ethical risks, the failure to deliberately and thoughtfully grapple with technological competence has access to justice implications. As observed in the CBA’s Reaching Equal Justice report:
Technology (including information technology) can be harnessed to improve access to justice….[although] [c]areful planning is needed to prevent technological innovations from creating or reinforcing barriers to equal justice.
It’s time to tackle technology!