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Duty of Technical Competence: Missing the Point

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.

An Example

On November 5 I provided a demonstration to federal public servants of “Rules as Code” technology at the Regulatory Innovation Showcase that was held as part of the FWD50 conference in Ottawa.

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.

Comments

  1. The Federation of Law Societies’ Model Code of Conduct, as to technical knowledge, fails to require sufficient knowledge of counsel, with which to competently challenge the ability of electronic systems and devices to produce reliable evidence. They are now the sources of most of the evidence used in legal proceedings and for legal services; e.g., records are now the most frequently used kind of evidence. See:
    “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (SSRN, May 21, 2019), at: https://ssrn.com/abstract=3378077 .

    However, the most consequential failure of technology is cited in this sentence in the above post: “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.” That’s the access to justice problem of unaffordable legal services for middle- and lower-income people that Jason Morris is referring to; (the, “A2J problem”).
    The Federation of Law Societies of Canada ignores the much greater “technology failure” of law society managers (benchers) to make available the necessary innovations that lawyers could adopt to produce legal services more affordably. Such support services cannot be put in place by individual lawyers or law firms, no more than the present infrastructure whereby medical services are delivered could have been created by individual doctors’ offices. A second type of the “support services method of production” is exemplified by the “parts industry” that makes producing automobiles for almost all income levels of society possible. Both models should be employed by law societies. Centralized legal research, and documentation, and law office management services, are 3 examples. Such support services methods create the necessary large economies-of-scale that affordability for all income levels requires. That is the cause of the A2J problem—”there are no economies-of-scale in the practice of law.” Its production method is very obsolete.
    Once the access to justice problem is solved, the other problems of the justice system will be solved, (except for those caused by inadequate government funding of the system). It is well established that, “law societies are the lynchpin of the justice system—when law societies fail, the justice system fails.” But should we expect a Federation of Law Societies to be openly critical of its masters?
    To solve the A2J problem and make Canada’s law societies competent again, download these articles (pdf):
    (1) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, Nov. 8 2018); at:
    https://ssrn.com/abstract=2811627
    (2) “Canada’s Law Societies Need a Civil Service” (SSRN, Jan. 9, 2019); at:
    https://ssrn.com/abstract=3311712 ; and,
    (3) “Law Policy for Access to Justice Failure” (SSRN, June 14, 2019); at:
    https://ssrn.com/abstract=3397081 .

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