Competence for the Low-Tech Lawyer

Is saying no to technology even an option for lawyers in modern practice? The Federation of Law Societies of Canada’s Model Code of Professional Content defines competence as follows:

3.1-1 1 “Competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement, including:
…
(j) pursuing appropriate professional development to maintain and enhance legal knowledge and skills; and (k) otherwise adapting to changing professional requirements, standards, techniques and practices.

If lawyers do not have certain skills, they are required to obtain those skills through additional education and training. In part, this explains the strong emphasis on technological components in practice that we routinely observe in continuing legal education sessions.

Despite the availability of these resources, it is still open to a practitioner to absolutely refuse to adopt any new technology. Lack of time, limited resources, or general disinclination may be provided as a justification. The American Bar Association (ABA) hosted a program this weekend in Boston at their annual meeting, “The Low Tech Lawyer’s Guide to Ethical Competence in a Digital Age.”

Part of the focus in the U.S. can be attributed to modifications to the ABA Model Rules of Professional Conduct, which state,

Maintaining Competence [8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. [emphasis added]

The discussion at the ABA meeting then explored what this minimal threshold would entail. James Podgers summarizes the theme of the session on ABA Journal,

So-called low-tech lawyers who pine for the bygone days before the Internet, the cloud and social media will have to get used to the fact that there is no turning back from technology. But the future may not be as intimidating as it might seem.

As in Canada, American lawyers are held to a standard of reasonableness. The interpretation of reasonableness is still open to ambiguous, but a standard of perfection is not what is expected. The Canadian Bar Association (CBA)’s Code of Professional Conduct, though not binding directly, sheds more on the industry expectations,

4. Competence involves more than an understanding of legal principles; it involves an adequate knowledge of the practice and procedures by which those principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas in which the lawyer practises. The lawyer should also develop and maintain a facility with advances in technology in areas in which the lawyer practises to maintain a level of competence that meets the standard reasonably expected of lawyers in similar practice circumstances. [emphasis added]

The CBA definition of reasonableness attaches reasonable competence to a comparison of other lawyers who are similarly situated. What this means is that a lawyer operating a solo general practice in rural Nunavut would not be compared directly to a complex financial transactions lawyer operating out of Toronto, Montreal or Vancouver. Unfortunately far too many lawyers would use this comparator standard to resist adopting technological skills any further than they have to.

At an absolute minimum, the ABA session seems to suggest that lawyers implement complex passwords into their practice. We can all assume that someone may be able to access our confidential client information, and we should take reasonable steps to protect it, whatever that definition of reasonableness may be.

Although competence is essential, in my experience the greatest advantage to practice provided by technology is all of the other benefits. Lawyers who complain that learning about technology takes too much time fail to realize the time savings and greater work-life balance that technology can potentially present. Others reluctant to invest expenses in the technology lose out in the efficiencies which can actually improve profit margin.

We will be exploring these themes, and many others, at the fourth annual LawTechCamp on September 6, 2014 at Ryerson DMZ in Toronto. Details of speakers and the full agenda to come. Those interested in speaking can send us an email. Also worth keeping an eye on is the Ontario Bar Association (OBA)’s TechXpo2.0 on October 23, 2014.