In the fall of 2019, the Federation of Law Societies of Canada amended their Model Code of Professional Conduct to incorporate reference to the use of technology in section 3.1-2 of the Model Code, which addresses competence. The Law Society of Ontario has provided the profession with a “guideline” in the use of technology, which in some cases refers to the Rules of Professional Conduct, but it is not itself a rule of professional conduct. It constitutes, in effect, desirable behaviour but, with some exceptions, not required conduct. As does legal practice generally, however, the use of technology requires ethical implementation and this the guideline does not address. I assess the LSO’s guideline from this perspective.
In 2016 a small group (of which I was a member) under the auspices of The Action Group on Access to Justice, created by the Law Society of Ontario (then the Law Society of Upper Canada), developed Draft Guidelines for Using Technology to Advance Access to Justice, supported by A Background Paper (Background Paper), which was prepared for a Day of Discussion on Technology, Inclusion and Access to Justice: Broadening the Conversation. [Disclosure: I was involved in the development of the Guidelines and Background Paper.] The guidelines were well-received by stakeholders who had useful recommendations for improvement. Unfortunately, efforts to secure funding to pursue the project further were unsuccessful.
The paper and guidelines address the role of the Law Society in encouraging legal practitioners and others in the justice system to address the use of technology inclusively. The central theme of the paper and the goal of the guidelines is to ensure the use of technology enhances access to justice and does not impede it, the achievement of which is influenced not only by the use of the technology but also by how it is designed. Although advances in technology itself have sped along since 2016, the general themes and recommendations still have resonance and I refer to some of them here.
The paper also emphasized the importance of seeing the use of technology as a form of ethical conduct and subject to the legal profession’s ethical code, thus representing the profession’s commitment to ethical practice in the use of technology.
The FLSC had adopted guidelines for the “new technology” as early as 1999 and the Canadian Bar Association first issued guidelines for the ethical use of technology in 2008, updating them in 2015 as Legal Ethics in a Digital World. However, the focus of the CBA guidelines is on security, marketing and providing services electronically, although one item on a checklist is, “Have you assessed your current practices and policies for potential barriers to access and taken steps to remove existing barriers?”, referring only to persons with disabilities (CBA, Legal Ethics, p.6). (See the Background Paper, p.8.)
In its 2013 Reaching Equal Justice Report, the CBA identified the following ambitious goal:
By 2020, all justice sector organizations have plans to harness technology to increase access to justice, ensuring inclusivity by eliminating barriers to underserved populations and avoiding the creation of new barriers. (Reaching Equal Justice Report: An Invitation to Envision and Act, p.83)
And here we are in 2020. It would require an analysis beyond the length of a blog post to do a thorough assessment of whether the goal has been met. Since then, there has been a dramatic increase in the use of advanced technology as part of legal practice and delivery of legal services, in communication with clients, resources for self-represented litigants and in dispute resolution. I am focusing on just one aspect related to these developments, the response of law societies, particularly the LSO, in their regulatory role.
Amy Salyzyn describes the advent of the explicit reference to technology in the FLSC Model Code as “a promising development” in a Slaw post. She notes, “In many respects, the new language simply makes explicit what is implied in existing rules”, while recognizing there are still questions that need to be addressed.
The FLSC’s recognition is hardly too soon. As Salyzyn points out, the ABA amended its Model Rules of Professional Conduct in 2012 and 37 [now 38] states now have identified “a duty of technological competence” (see “Tech Competence”, Law Sites, which allows viewing each state’s provisions by clicking on a map of the USA). (The ABA’s reference to “the benefits and risks associated with relevant technology” is one of several ways lawyers are “[t]o maintain the requisite knowledge and skill [by] keep[ing] abreast of changes in the law and its practice” (ABA, Model Rules of Professional Conduct, Rule 1.1). The individual states have adopted variants of the ABA duty, including, for example, recognizing that competence in the use of technology may require assistance from a non-lawyer expert (see, for example, Florida) or that the broad reference to technology might not be appropriate (see, for example, Michigan’s “including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter”).
The FLSC’s amendments are 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 upon 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.
Thus the FLSC rule responds to the reality of a lawyer’s practice and therefore, lawyers would satisfy the rule in different ways. It does not, however, other than the references to confidentiality and generally to “the requirements of clients”, require lawyers to consider the ethical aspects of how they use technology,
Although a few law societies have not yet acknowledged the role of technology in legal practice and the relationship to professional conduct, many provincial and territorial law societies have adopted the FLSC’s rule (see, for example, the Nova Scotia Barristers’ Society and the Law Society of the Yukon, among others that have incorporated the FLSC’s rule in their competence rule). The Law Society of the Northwest Territories has issued a Practice Advisory: Guidelines on Ethics and the New Technology, as has the LSO, which developed its Guideline prior to the FLSC’s amendments. (The LSO has issued Technology Practice Tips! for paralegals.)
The LSO Technology Guideline, part of a larger package of Practice Management Guidelines described as “practical tools”, “is not intended to replace a lawyer’s professional judgment or to establish a one-size-fits-all approach to the practice of law”. Following the Guideline is not a guarantee the lawyer has provided “quality service” and not following it does not mean the lawyer has not provided “quality service”, unless the particular provision “incorporates legal, By-Law or Rules of Professional Conduct requirements” (LSO, Technology Guideline). My consideration of the Guideline follows the Guideline’s scheme; I reproduce its provisions, adding a comment or comments where appropriate. My comments on the Guideline are not meant to be exhaustive and are intended to raise questions or issues that might be relevant in either amending the Guideline or incorporating it or some variant into the Code of Professional Conduct.
The Technology Guideline outlines the circumstances in which the use of information technology is mandatory, as in the case of electronic registration. It also outlines the circumstances when information technologies are recommended. The Technology Guideline invites lawyers to consider the use of technologies to support client service expectations and practice management systems and reminds lawyers to address concerns respecting security, disaster management, and technological obsolescence.
In “inviting” lawyers to consider using technologies, the Introduction is weak, despite the recommendation. It fails to recognize how embedded technologies have already become, especially in larger firms, how they can assist clients in obtaining services, where appropriate, and where they can make the lawyer’s practice more efficient. This does not mean technology for technology’s sake, but technology following a considered decision about, for example, whether technology is preferable (compared to in-person services or as complementary to in-person services), selection of a particular technology (keeping in mind the ability to use it, maintain it and update it) and its appropriateness for particular clients.
5.2 Mandatory Use of Technology
Lawyers must ensure that they comply with any mandatory requirements relating to the use of information technologies in their law practices, including but not limited to
Lawyers must have knowledge of relevant legal or regulatory provisions governing or relating to information technologies. In particular, if relevant to a lawyer’s area of practice, lawyers should familiarize themselves with statutory or other provisions relating to the legal status of electronic documents or electronic signatures.
This provision is clear and merely requires updating as necessary. Lawyers should be prepared to explain to clients, if necessary, why they must use technology in these situations.
5.3 Systems to Support Client Service
Lawyers should consider the use of information technologies to enable them to perform all client service functions conscientiously, diligently, and in a timely and cost-effective manner. [rr. 3.1-1(e) and 3.1-2 of the Rules of Professional Conduct]
Lawyers may wish to consider the use of the following information technologies:
5.3.1 Electronic Legal Research Methods
Lawyers should consider whether their legal research skills include and make use of online legal research tools (e.g., CanLII or Quicklaw) [r. 3.1-1(c)(i) of the Rules of Professional Conduct].
Although many lawyers will be able to turn to students or junior lawyers who have learned these skills, it may be necessary for lawyers to undertake their own research online. There are research sources that are available only online and failure to be able to access these will put the lawyer at a disadvantage and as a result impair the quality of service provided to clients. At the same time, recent or relatively recent graduates may have had little experience with non-online sources and it is important to ensure they have the required skills and that they are aware there may be significant sources not available online.
Rule 3.1-1(c)(i) refers to a particular aspect of a competent lawyer, “implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including … legal research”. The question is whether a failure to use online research skills constitutes professional misconduct through the incorporation by reference of Rule 3.1-1(c)(i).
5.3.2 Electronic Document Management Systems or Services
Lawyers should consider the use of electronic document management systems such as
These are in widespread use, particularly in larger firms, and lawyers need to understand how they work and what type of software is most appropriate for their practice, taking into account the type of practice, size of document load, security and efficiency. They also need to be aware of software that can collect documents from clients. To the extent a firm is able to employ a knowledge management expert, this expertise can assist in selecting the most effective internal document management and document assembly. Using appropriate systems can help provide better service to a client.
5.3.3 Analysis Support Software
Lawyers should consider the use of information technologies that support their analytical skills and functions including spreadsheet software where appropriate. [r. 3.1-1(c)(ii) of the Rules of Professional Conduct]
As in provision 5.3.1, does the reference to the Rules of Professional Conduct leave a lawyer who does not use spreadsheet software where appropriate vulnerable to an allegation of professional misconduct?
5.3.4 Productivity Software
Lawyers should consider the use of electronic productivity software or voice recognition software to ensure that writing and drafting is accomplished in a timely and cost-effective manner (e.g., Word, Word Perfect, Adobe Acrobat, and Google Docs) [rr. 3.1-1(e) and 3.1-2 of the Rules of Professional Conduct].
This provision also is linked with the Rules of Professional Conduct. Rule 3.1-1(e), which identifies one characteristic of a competent lawyer, as one who is “performing all functions conscientiously, diligently, and in a timely and cost- effective manner”, as are other, albeit not all, functions identified as part of the Guidelines. This would also be the case with Rule 3.1-2: “A lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.” This rule, general as it is, could possibly apply to any of the identified functions. Is this the intention and if so, what is the implication of that?
5.3.5 Communication Technologies
Lawyers should consider the use of information technologies to communicate with the client in a timely and effective manner appropriate to the abilities and expectations of the client. Lawyers may consider the use of all or some of the following systems [rr. 3.1-1(d) and 3.1-2 of the Rules of Professional Conduct
While any of the listed forms of communication may be relevant, there are others today that might be worth mentioning, such as the use of electronic document collaboration (perhaps more efficient for finalizing documents with a client). Before deciding to use these forms of communication, it is important to speak to the client to ensure they have easy access. In some cases, these forms of communication will be easier for the client, but in other cases, there may be barriers that need to be addressed or that dictate one kind of communication rather than another. However, more importantly, this provision should emphasize the importance of determining how safe these various means of communication are. For example, any form that is designed to communicate with a client over the internet at home might run the risk of a dominant member of the household accessing the communications, risking undue influence or even abuse.
5.4 Systems to Support Practice Management
Lawyers should consider the use of the following information technologies to assist in complying with the Rules of Professional Conduct and By-Laws made pursuant to the Law Society Act [rr. 3.1-1(g) and 3.1-2 of the Rules of Professional Conduct]:
5.4.1 Database Management Systems
Lawyers should consider using database management software systems for
Lawyers may also consider using a searchable database of client files which easily identifies open and closed client files.
5.4.2 Calendaring and Scheduling Systems
Lawyers should consider the use of calendaring and scheduling technologies to
5.4.3 Legal Accounting and Time Billing Systems
Lawyers should consider using electronic accounting and billing systems to assist in complying with record keeping and accounting requirements. [By-Law 9 and Section 3.6 of the Rules of Professional Conduct]
These are standard methods of supporting practice management. I note that e-calendaring is very common for those organizing meetings, just one example of how the provisions may be outdated and “suggestions” too weak. Again, I wonder whether the reference to the Rules of Professional Conduct make these provisions either more significant or failure to observe them more likely to be subject to professional conduct investigations. Rule 3.6, referenced in provision 5.4.3, for example, relates to “fees and disbursements”, but not using technology.
5.5 Competent Use of Information Technologies
Lawyers should have a reasonable understanding of the technologies used in their practice or should have access to someone who has such understanding.
Lawyers, or the persons responsible for dealing with technology, need to understand the design of a technology, since its design can affect the ease of its implementation and its ability to be updated, as well as to influence whether it has negative effects for some persons rather than others, particularly clients. It is crucial to understand the cost implications of a particular technology, not only the original investment, but maintaining currency, and whether the law firm has someone readily available who understands the technology and can use it effectively on a daily basis or as required (or can teach others to use it).
When referring clients to online information, online forms or online dispute resolution systems, explaining how they are used and their strengths and limitations should be considered part of the quality of service. For example, while a lawyer may consider referring a client to on-line information, believing this to be less costly for the client, it may be that a barrier may prevent the client from benefitting from on-line information without help (an individual with low literacy skills will have difficulty following the information or other clients may have difficulty relating it to their own situation). Similarly, a lawyer providing information over the telephone may underestimate the client’s ability to follow through the instructions the lawyer provides. This type of concern, as do some other provisions, have perhaps a greater significance for providing limited retainer services, since clients will be undertaking some of the functions that would normally be undertaken by the lawyer.
The LSO identifies “recognizes and is sensitive to clients’ circumstances, special needs and intellectual capacity (e.g., diversity, language, illiteracy, socioeconomic status, disability, health)” as an entry-level barrister competency and refers to cultural competency in several entry-level barrister and solicitor competencies. Taking characteristics other than “culture” into account is also relevant to competent practice of law. The Technology Guideline should refer to this as a factor in determining appropriate technologies and in the use of technologies.
5.6 Delivery of Legal Services Through the Internet
5.6.1 Uphold Law of Other Jurisdiction
Ontario lawyers practising law in other jurisdictions through the provision of legal services on the Internet should
5.6.2 Conflicts of Interest
To avoid conflicts of interest when delivering legal services through the Internet or e-mail, lawyers should take reasonable steps to determine the actual identity of the parties with whom the lawyer is dealing.
5.6.3 Capacity in Which Lawyer is Acting
A lawyer who communicates with others in chat rooms, blogs, discussion groups, or through electronic or social media shall ensure that the capacity in which the lawyer is acting is made as clear as possible to anyone with whom the lawyer deals.
In particular, a lawyer should advise when he or she is or is not providing legal advice or services.
In addition to ensuring that the lawyer has clearly advised others involved about whether they are providing legal advice or services, lawyers should first be wary about the circumstances under which these social media tools are used for providing advice or services, since it is easy for the recipient(s) to misunderstand. Indeed, even innocuous comments often lead to unpleasant encounters — or worse — on social media. Contained communication in chat rooms, for example, in which users are identified and known, can be a useful way of exploring issues. (I note, too, that befriending judges on Facebook, for example, can lead to concerns of conflict of interest for the judge and thus for the lawyer.)
5.7 Virtual Commissioning of Documents
Some lawyers wish to use electronic or online tools and platforms to commission legal documents (e.g., Skype® or FaceTime®). This practice is referred to as virtual or remote commissioning because it involves the use of audio-visual technology to authenticate or witness the document(s) signed by the deponent.
Based on the current law and risks associated with virtual commissioning, at this time, the Law Society recommends that commissioners not engage in virtual commissioning. The best practice remains for the lawyer who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s). Lawyers should consult the Law Society’s Best Practice Recommendation: Continue with In-Person, not Virtual, Commissioning resource for further information and guidance.
The Virtual Commissioning resource is a good analysis of the advantages and difficulties of virtual commissioning and it should be mandatory for lawyers to consult it if they are considering virtual commissioning. (I note that Schedule 5 to Bill 161, The Smarter and Stronger Justice Act, 2019, would amend section 9 of the Commissioners for taking Affidavits Act to read: “Every oath and declaration shall be taken by the deponent or declarant in the physical presence of the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration.” However, it contemplates that regulations may provide the oath or declaration be taken without being in the physical presence of the commissioner if the specified conditions are met.)
Lawyers using electronic means of communications shall ensure that they comply with the legal requirements of confidentiality or privilege. [Section 3.3 of the Rules of Professional Conduct]
When using electronic means to communicate in confidence with clients or to transmit confidential messages regarding a client, a lawyer should
No comment, except that privacy and confidentiality concerns have become even more vulnerable to risk. Since this provision was developed, even telephones have become vulnerable, quite apart from wiretaps, with the advent of spoofing numbers, altering a phone number to one that the receiver would trust. This can have the effect of giving the lawyer instructions, ostensibly from a client, that are fraudulent or even letting members of the law firm believe telephone communications are from another member when they are not.
5.9 Marketing and Making Legal Services Available
5.9.1 Rules of Professional Conduct Apply
Advertising by lawyers in various forms of electronic media, including web sites, network bulletin boards, and direct e-mail, are governed by the Rules of Professional Conduct, Section 4.1 Making Legal Services Available, Section 4.2 Marketing, and Section 4.3 Advertising Nature of Practice.
5.9.2 Identification of Lawyer in Electronic Media
Lawyers making representations in generally accessible electronic media should include the name, law firm mailing address, licensed jurisdiction of practice, and e-mail address of at least one lawyer responsible for the communication.
5.9.3 Multi-Jurisdictional Advertising
Where a lawyer is entitled to practice in more than one jurisdiction, and these jurisdictions are identified in representations on electronic media, the lawyer shall ensure that the advertisement complies with the rules governing legal advertising in each of those jurisdictions.
5.9.4 Restrictions on Distribution
Lawyers may offer their services to potential clients subject to certain restrictions, including influencing a person who has already retained another lawyer or paralegal for their matter to change legal representatives. [r. 4.1-2 of the Rules of Professional Conduct and Commentary].
Interactions with the public that are not compatible with the public interest, the best interests of the legal professions or the administration of justice, include
Provision 5.9.1-5.9.4 appear to be straightforward, making it clear that electronic advertising is subject to the same rules of professional conduct as other forms of advertising. The wording is different from the reference to the Rules in other Guideline provisions, suggesting the reference to the Rules has a different effect. In addition, lawyers need to be aware of Canada’s anti-spam legislation prohibiting sending unsolicited emails
5.9.5 Controlling Misuse of Electronic Communications
Lawyers should consider implementing and enforcing firm policies for the acceptable use of electronic communications to ensure that discriminatory content is not disseminated. Policies may include
It would be appropriate to refer here to r.2.1-1[4.1] of the Rules of Professional Conduct, which states, a lawyer has “a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario”.
5.10 Preventing Software Piracy
Lawyers should guard against intentional or accidental software piracy. Lawyers, not office personnel exclusively, have the ultimate responsibility for the management and organization of, and compliance with, license agreements for all software used by a firm.
Lawyers should guard against accidental software piracy by carefully reviewing the provisions of software licensing agreements used in their practice.
5.11 Security Measures
Lawyers should be familiar with the security risks inherent in any of the information technologies used in their practices including
Lawyers should adopt adequate measures to protect against security threats and, if necessary, to replace hardware and reconstruct electronic information.
5.12 Back-up and Disaster Management
Lawyers should have back-up and disaster recovery plans for information technologies. Lawyers may consider implementing some or all of the following policies and procedures
No comment on provision 5.10-5.12, except to note that threats to all forms of technology use have increased even since the LSO issued the Guideline and that lawyers are highly likely to require expert advice, either in-house or on retainer.
Lawyers should ensure that information in electronic form will be accessible in the future. Lawyers should consider the benefits and risks of storing crucial information in paper or electronic form.
The LSO Practice Management Technology Guideline is more detailed than are the FLSC amendments to its Model Code. At this point, however, it is in some respects becoming outdated. At least some of the provisions should be included in the Rules of Professional Conduct rather than incorporating the rules in those cases by reference into the Technology Guideline. At a minimum, the Guideline should be explicit about the ramification of references to the Rules in the Guideline. The competencies required of an entry-level barrister and solicitor should include more explicit competencies related to the use of technology, not merely by implication or limited to software or record-keeping, and the licensing exams should include questions related to the (ethical) use of technology.
Recognition through rules and guidelines that the legal profession is increasingly employing advanced technology, that doing so is inevitable and unavoidable, is an important step. Obviously, as the FLSC and the LSO Guideline, as well as provisions in other jurisdictions, recognize, how the use of technology is operationalized will depend on the size of firms, the type of practice and other factors. But these factors should not shape in any significant way the commitment to the ethical use of technology, especially, although not only, in relation to clients, something the rules and guidelines have yet to address adequately.