No Going Back, So Why Aren’t We Moving Forward?

When Dorothy realized she wasn’t in Kansas anymore, she stopped acting as if she were. As far as she knew, there was no going back.

In 2012, the American Bar Association amended its Model Rules of Professional Conduct to confirm that a lawyer’s duty of competence includes awareness of “benefits and risks and associated with relevant technology” to legal practice. 35 states (including Kansas!) have since adopted the requirement into their own rules of professional conduct. Meanwhile, in Canada, our law societies aren’t moving with any sense of urgency. Consultations on the question began in 2017, but don’t expect guidance anytime soon.

From the November 2018 Law Society of Ontario report to Convocation (i.e., its board of directors), this is what we know:

The Standing Committee is continuing to engage with relevant stakeholders on proposed amendments to the Model Code dealing with technological competence and the return to practice by former judges. A comprehensive paper on the proposed amendments was distributed to law societies in June to address concerns expressed by some jurisdictions. Feedback from those law societies with help to determine whether consensus can be achieved on these issues.

I’m not here to knock the law societies, not even the ones or the leaders within them that seemingly question whether they’ve truly left Kansas. And for those interested in understanding issues around the ethical duty of technological competency, you will find some great pieces here on Slaw. I reference the law society discussion as but one, albeit a significant and highly visible, example of the general ambivalence of the Canadian legal establishment to understanding, to adapting to, to adopting, and to driving benefits from the technological revolution rapidly changing nearly everything else around us. Sure, they say, it’s important, but what’s the rush?

When I call out the “Canadian legal establishment,” I mean literally all parts – courts, governments, law schools, firms, corporate legal departments, regulators, bar associations, publishers, service providers, etc… While we can certainly find many inspirational and impressive individual examples of people, projects and organizations that are doing great things, or at the very least are attempting to move forward, true change remains an activity occurring very much on the margins and is driven more by the efforts of individual leaders than by anything resembling institutional change. And in many cases, because the leaders themselves face various forms of enterprise or environmental inertia (or worse!) from status quo adherents, there are limits to their impacts and effectiveness, and indeed to their legacy were they to stop pushing forward.

Among public institutions, the lack of resources to modernize processes is a significant factor, as is widespread timidity at considering anything other than incremental change. Among law schools, the perpetual lack of alignment within and across law schools of their existential purpose is a factor, and one that amplifies the historic disconnect between classroom priorities and preparation of future-ready legal professionals. Among law firms, the lack of concerted push back from clients and competitors to become more efficient and responsive is a factor. Among all legal service provider environments (solo to big law, in-house and public sector), fear of failure – commercially or in fulfillment of professional obligations to clients – is a factor that constrains consideration of radical shifts in business models. Among publishers and others serving the Canadian legal establishment, seeing an environment more welcoming to a steady-as-she-goes approach than to anything new and radical, the most prudent course of action is to focus on locking in traditional approaches for as long as possible.

Returning to regulators and bar associations, their natural caution adds to the challenges. It was only a couple years ago that one law society president openly questioned whether lawyers in her jurisdiction could abide by their professional obligations while relying on cloud-based technologies in the management of their operations. While it may not be a regulator’s place to lead the way in all circumstances, the pace of change around them no longer grants them the luxury of treating every question like Chesterton’s fence:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

Collectively, we’ve become better at understanding and articulating the challenges and barriers, and of bifurcated access to legal services based on financial wherewithal, as well as the harm to society of a justice system that grows increasingly out of reach. We also understand that technological change creates risks and opportunities, and that attending to those risks and seizing those opportunities takes collective action within organizations and institutions, as well as interconnected action across institutions. But what we have yet to see, are fundamental shifts from any of the institutions.

We should continue to encourage and celebrate the people, projects and organizations that are responding to change and building the future. And where we see opportunities to push institutions forward we should act, because we need to spark a culture shift and we need to do it fast.

One such opportunity is underway in Ontario.

Ontario is the province with the largest population in Canada, the seat of the Federal Government, the Supreme Court of Canada and the most active lower courts, the most legal professionals and the largest law society, the head offices of the largest law firms and home to a technology and innovation community that is hiring at rates that make Silicon Valley weep. Who leads the Law Society of Ontario at this time of rapid change is extraordinarily important.

Election season for the lawyer and paralegal benchers of the Law Society of Ontario has kicked off, with all candidate nominations filed in February and the voting window set for late April.

Now, to be clear, I’m not suggesting that moving forward is dependent on regulatory leadership alone. There are far too many pockets of inaction elsewhere to put the blame solely on the regulator. But I am suggesting that some seven years since the ABA took the position that technological competency is a necessary element of legal practice competency, we should be concerned that the Canadian legal establishment has not fully acknowledged the technicolor land of Oz we now inhabit.

We have a rare chance to identify and empower the changemakers who sense the urgency and seek to do more than merely watch from the sidelines. If you are an Ontario lawyer or paralegal, your vote this spring could have an immense impact on the Canadian legal establishment.

I’ve invited all candidates to share their views on a couple dozen known priorities, including the following:

If you are a candidate, be sure to let voters know where you stand.

If you are an eligible voter, be sure research the candidates and be sure to vote.

If you care about these issues, whether a voter or not, don’t wait, and look for your opportunities to act and to help move us all forward.

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