Column

It’s Finally (Sort Of) Here!: A Duty of Technological Competence for Canadian Lawyers

For years, Slaw commentators (including myself) have called for Canadian law societies to adopt a duty of technological competence for lawyers. On October 19, 2019, a major development occurred, which has largely gone unnoticed. The Federation of Law Societies of Canada amended its Model Code of Professional Conduct to add the following commentary to the competence rule (r. 3.1-2):

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.

[4B] The required level of technological competence will depend on whether the use or understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities and whether the relevant technology is reasonably available to the lawyer. In determining whether technology is reasonably available, consideration should be given to factors including:

(a) The lawyer’s or law firm’s practice areas;

(b) The geographic locations of the lawyer’s or firm’s practice; and

(c) The requirements of clients.

This is a promising development. In many respects, the new language simply makes explicit what is implied in existing rules. A modern lawyer has to, for example, have an understanding of cybersecurity risks and guard against such risks in order to ensure that she abides by her professional duty to keep a client’s information confidential (Model Code r. 3.3-1). Likewise, it is difficult for a lawyer to claim that he is meeting his obligations to provide competent, timely and efficient service while charging fees that are fair and reasonable if he refuses to avail himself of relevant technological tools (Model Code r. 3.2-1 and r. 3.6-1).

To be sure, there are legitimate questions raised by the new commentary about what specific measures a lawyer should take in order guard against possible technological risks and what specific tools a lawyer must use in order to have a technologically competent practice. While virtually everyone would agree that lawyers now have to, for example, back-up their servers to safeguard client information and be available by telephone or email for client communications, there are many gray areas. What about using video-conferencing to receive a party’s testimony in court, assuming that the court has this capacity and it would reduce costs for a client? Can a lawyer refuse to use this technology solely on the grounds that she is uncomfortable using it? What about using more technologically advanced legal research tools? Despite Justice Whitten’s admonishment in Cass v. 1410088 Ontario Inc. that “[i]f artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced”, it is difficult to identify an AI-empowered legal research tool that all Canadian litigators should be using as a matter of basic competence.

Cost is, of course, an important factor in all of this. Some technology-related practices are low cost or free (take, for example, not falling prey to phishing scams), while others come with significant price tags (including commercial legal research services or e-discovery platforms). Lawyers who work in solo or small law firm contexts are less likely to have the same means to purchase and access technology as those lawyers who work in large law firms or large private or government organizations.

The good news is that the new commentary on technological competence added to the Model Code is context-specific and embodies principles of proportionality: the language aims to capture only technology that is “necessary to the nature and area of the lawyer’s practice” and which is “reasonably available to the lawyer” with a view to the lawyer’s practice area, location of practice and requirement of clients.

This context-specific language makes clear that the intent of the commentary is not to add a new, unduly burdensome requirement for all lawyers to become tech-whizzes and expend unreasonable sums of money on technology. The language does, however, recognize that being able to understand and use technology is now part of being a good lawyer, just like other skills like effective communication, research, writing and time-management skills. It has never been the case that being a competent lawyer simply means “knowing the law.”

Now that the above commentary is part of the Model Code, it is up to the individual provincial and territorial law societies to add it to their respective codes. They should do so soon. This is not a controversial change. The commentary is timely and modest. It is also not without precedent. In 2012, the American Bar Association amended its Model Rules of Professional Conduct to add similar commentary, and a duty of technological competence has now been adopted by 37 states. The sky hasn’t fallen there, and it won’t fall here, if law societies adopt the Model Code commentary. What adopting the commentary will do, however, is signal to lawyers (and dare I say the law schools that train them?) that understanding and using technology is a necessary part of modern legal practice. Lawyers don’t have to be coders or understand the complexities of artificial intelligence, but they can’t ignore the risks and benefits that technology can bring to their practice.

2020 marks the 100th anniversary of the first model code of professional conduct in Canada – the 1920 Canadian Bar Association’s Canons of Legal Ethics. What better way to celebrate this anniversary than by law societies bringing their respective codes into the 21st century by incorporating a duty of technological competence?

Comments

  1. Thanks Amy for that good&necessary note.
    And, please add this necessary kind of know-how to that Model Code of Professional Conduct: cross-examination and argument to provide a constitutionally-guaranteed opportunity to make full answer & defence (Charter ss. 7 & 11(d)), in regard to those technologies that produce frequently used kinds of evidence. For assistance, download pdf. copies of these articles from my SSRN author’s page, at:
    https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1398484

    (1) “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (SSRN, pdf, May 21, 2019; 62 pages);
    (2) “Electronic Records as Evidence” (SSRN, pdf., February 19, 2018; 43 pages);
    (3) “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, pdf., October, 2016; 91 pages);
    (4) “Electronic Discovery’s ‘Records Review Stage’ Software Programs” (SSRN, pdf. September 14, 2018; 20 pages);
    (5) “Making Sufficient Knowledge of Technology Available to Counsel” (SSRN, pdf., October 1, 2018, 69 pages); and,
    (6) “The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery” (SSRN, 2014);
    plus a few more relevant ones there.

Leave a Reply

(Your email address will not be published or distributed)