The Federation of Law Societies of Canada on October 19, 2019 adopted changes to the model code of conduct, adding commentary on competence with technology.
There is no new standalone duty of technological competence, but rather the FLSC has provided new guidance on how the general duty of competence should be understood with regard to technology.
The new guidance is phrased as follows:
[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 of 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.
It is interesting to note that only section 4A was proposed in the consultation process. Section 4B is evidently a reaction to the feedback that the FLSC received from that proposal. It seems that people were concerned about knowing what the threshold of technical competence is, and wanted acknowledgement that it might vary.
It’s not clear to me that section 4B makes anything much clearer, except that you are not to be blamed for not learning cloud technology in a place with no reliable internet access, or for not learning word processing in a place with no reliable electrical power.
Does this guidance really change anything? Probably not. Lawyers have never been able to use “I don’t know how to use X” as an excuse for violating their other duties, or failing to act competently. And it is hard to imagine a breach of a duty of technical competence that wasn’t already a breach of something else. So this isn’t so much a change to the model rules as a clarification of what they have always been, and an exhortation to catch up.
How the Amendments Miss the Point
In one sense, it is a step forward. There are those in the profession who need goading to catch up. But if you are reading a legal blog, you probably aren’t in that category. To the extent this guidance serves that purpose, and justifies additional resources to help lawyers catch up, it is a good thing.
In another sense, it misses the point. Section 4A specifically and exclusively mentions the duty of maintaining confidentiality. Always, the risk of violating confidentiality is front and center in the conversation about technology and the law. And it is important.
But confidentiality is not the duty that most lawyers are at risk of failing to meet by virtue of their incompetence with technology. That title belongs to Rule 4.1-1, “Making Legal Services Available.”
4.1-1 A lawyer must make legal services available to the public efficiently and conveniently and, subject to rule 4.1-2, may offer legal services to a prospective client by any means.
Technology allows us to provide legal services to the public more efficiently and conveniently. Far more people are without legal services because the profession has failed to provide them efficiently and conveniently than, for example, have had their confidentiality violated by incompetent redaction of PDFs.
There is simply no comparison in the size of the problem. One is a fly, the other is an elephant.
That demonstration showed how the adoption of Rules as Code technology could, in the future, reduce the time required to build a legal services web application to mere minutes. Want an app that will tell you if you are exempt from a certain tax? An app that will tell you whether you are carrying too much legal cannabis? We can build that for you, in about five minutes.
But that technology requires lawyers (or other legal subject matter experts) to use it. When advising future and current lawyers about their professional obligations with regard to that technology, is it enough to tell them to look out for problems with confidentiality?
I think not. I think that asks them to focus on the fly, and ignore the elephant in the room.