It is now relatively uncontroversial that lawyers should be technologically competent. A duty of technological competence has been included in the American Bar Association’s Model Rules of Professional Conduct since 2012 and has subsequently been adopted in 36 states. Here, in Canada, a similar duty is under active consideration by the Federation of Law Societies of Canada for inclusion in their Model Code.
Much less has been said and done in relation to judicial technological competence; it’s time for this to change.
To be sure, the proposition that judges need to understand technology is not an entirely new idea. How judges use one particular type of technology – social media – has attracted significant attention. A major issue of concern has been whether judges can be social media “friends” with those who appear before them. Another issue that has required response are cases where judges have referred to litigants that have appeared before them in demeaning or otherwise inappropriate terms in social media posts (see here for some American examples from last month).
In the United States, issues with judges and social media have prompted multiple judicial ethics opinions. In 2015, the Canadian Centre for Court Technology published a discussion paper titled The Use of Social Media by Canadian Judicial Officers. Most recently, a Canadian Judicial Council (CJC) background paper identified “social media” as a potential issue to be included in an updated version of the Ethical Principles for Judges, which aim to provide “ethical guidance for federally appointed judges.”
Social media guidance for judges is important. But focussing only on social media is not enough. Judges need to have a broader awareness and general competence in relation to technology.
Not only are courts themselves increasingly using new(er) technologies such as video-conferencing and e-filing, but lawyers are also starting to employ advanced tools in areas like e-discovery and legal research. It is becoming essential that judges understand what these tools are and, in some cases, how to interact with them.
There is a compelling argument that the proper administration of justice is compromised if, for example, a judge refuses to allow video-conferenced testimony or receive electronic submissions for the sole reason that the judge lacks a personal comfort with these mediums. Similarly, in some cases, proper case management and costs decisions depend on a judge having some basic knowledge of the more advanced tools being used by counsel. Justice Whitten of the Ontario Superior Court of Justice attracted considerable attention last year for his suggestion in Cass v. 1410088 Ontario Inc. that time billed for legal research could have been reduced “if artificial intelligence sources were employed.”
The emerging use of risk assessment algorithms to assist courts in making bail and sentencing decisions, and the attendant human rights concerns, is yet another example of why understanding technology needs to be conceived as a core part of the judicial role. (See, here, here and here for some American examples and commentary).
In light of these current and potential future courtroom realities, there should be a formally recognized duty of technological competence for Canadian judges. Indeed, this is exactly what the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique (CALE/ACEJ) has recommended to the CJC in a letter written earlier this month. (Full disclosure: I am the current President of CALE/ACEJ and signed this letter in that capacity). In terms of what was recommended, the letter clarifies that “in making this suggestion we do not mean to propose that judges need to become experts in relation to any type of technology that appears in their court” and suggests that language similar to that under consideration by Federation of Law Societies of Canada could be adopted, namely that “judges should develop and maintain a facility with technology relevant to the nature and area of their judicial duties.”
A similar proposal has been made in respect of American judges. In a May 2019 article, Robert Ambrogi writes that “the time has come for there to be an explicit duty for judges to be technologically competent, just as there is already for [American] lawyers.”
The context in which Canadian judges work has evolved significantly in recent decades and has resulted in a variety of new demands; technological competence is one of them. Recognizing a duty of technological competence is appropriate and important. It should seriously be considered by the CJC as well as the bodies who oversee provincially-appointed judges in Canada.