Did the LSO Hold Back Court Modernization and Performance?

According to the meta description on its website, “[t]he Law Society’s Rules of Professional Conduct (“Rules”) express the high ethical ideals of lawyers, and specify the bases on which they may be disciplined.” To date, and unlike in other jurisdictions[1], this has not included any requirements for basic technological competence. Thus, the current Rules are entirely devoid of the terms ‘computer,’ ‘technology’ or ‘data.’ While the internet is mentioned, it appears only twice, and then, only in relation to advertising. Could this omission, or the failure of the Law Society to test new licensees on technological competence have contributed to the general technological backwardness of the Ontario Court system (most pronounced prior to Covid) or with its poor overall comparative performance[2], historic or ongoing?

Looking first to the Ontario Court system, the question remains, why did it effectively cease operations upon the onset of the pandemic (while insisting it always ‘stayed open,’ those present will recall that for several months afterwards, it was only able to offer the same level of service as was offered on Christmas, New Years and weekends, i.e. effectively none)? Moreover, how had the Ontario Court system made it to 2020 without a robust electronic filing system, as had been implemented by most other jurisdictions? More troublingly perhaps, more than two years after the onset of the pandemic, the people’s court (Small Claims) at least in Toronto, remains effectively closed, operating as little more than an expensive document repository (as it is not holding motions, trials or conducting debtor examinations). These facts lie in stark contrast to its own pronouncements that ‘the days of a culture of complacency are over.[3]’

Part of the ‘credit’ for this dysfunction doubtless rests at the feet of the Ontario Ministry of the Attorney General, from whom experience has taught us to at best, expect very little. Likewise, part of the responsibility rests with the senior judiciary, who continue, through their directives, to demonstrate an aversion to progress[4] and to having a modern, functional court system. However, some responsibility for the current state of affairs doubtless rests with the legal regulator itself, who has failed over successive generations to ensure that its licensees possess even baseline levels of technological competence (with some licensees ultimately progressing to the Judiciary or into senior decision-making roles at the Ministry of the Attorney General).

Issues regarding the technological competence of licensees (or lack thereof) have been noted by the Judiciary (recognized long-ago by Justice Brown as itself operating in a Jurassic park[5]). Specifically, in the recent case of Worsoff v. MTCC 1168, 2021 ONSC 6493 (CanLII) the Court opined that “[w]ith the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view.” However, and as noted, the Law Society of Ontario’s Rules of Professional Conduct are completely devoid of such requirement.

Perhaps not surprisingly, the Law Society of Ontario is a full decade behind the American Bar Association, which in 2012, adopted the following as a comment to Rule 1.1, Competence:

“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[6].”

The ABA Rule has since been adopted by 40 states (many between 2013 and 2018), with the California State bar going further, issuing a formal opinion requiring litigators to either be competent in e-discovery or associate with others who are[7].

Troublingly, the Law Society of Ontario is also several years behind its (shared) child organization, the Federation of Law Societies of Canada. In 2019, that organization amended the commentary following Competence to provide[8]:

[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.

The Federation’s rules have already been implemented by Alberta,[9] Manitoba[10], Newfoundland and Labrador[11], Northwest Territories[12], Nova Scotia[13], Saskatchewan[14] and Yukon[15]. Once more, it would appear that the Law Society of Ontario is late to the party.

The failure of the Law Society of Ontario to update its rules must be considered in relation to its home statute, the Law Society Act, R.S.O. 1990, c.L.8, itself amended by the Access to Justice Act, 2006, S.O. 2006, c.21 – Bill 14. Among other changes, Bill 14 contained the following significant amendments:

Function of the Society

4.1 It is a function of the Society to ensure that,

a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

Principles to be applied by the Society

4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21, Sched. C, s. 7.

Applying the purpositive approach to statutory interpretation, the words of Bill 14 “are to be read in their ordinary context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament[16].” Additionally, “[e]very word that is used in a statute is to be given meaning and when a court considers the grammatical and ordinary sense of a provision ‘the legislator does not speak in vain[17].’” In Ontario, this is further buttressed by the Legislation Act, 2006, SO 2006, c 21 Sch F, section 64 of which provides that Acts shall be interpreted as being remedial and given such fair, large and liberal interpretations as best ensure the attainment of its objects.

Despite this, until (briefly) forced by Covid, the Law Society did not test licensing candidates to determine whether they had enough tech competence to turn on a computer, much less do anything useful with it (at that point, the exams went online, and candidates who were unable to connect presumably failed). Likewise, the Law Society failed to implement any duty of technological competence for its licensees. This is curious for a number of reasons.

Initially, and as set forth in the Preface to the Federation of Law Societies of Canada Model Code of Professional Conduct:

“The practice of law continues to evolve. Advances in technology, changes in the culture of those accessing legal services and the economics associated with practising law will continue to present challenges to lawyers. The ethical guidance provided to lawyers by their regulators should be responsive to this evolution. Rules of conduct should assist, not hinder, lawyers in providing legal services to the public in a way that ensures the public interest is protected[18].”

To large extent, the Federation’s Preface mirrors the 2014 opinion of Justice Brown, who noted that ‘[t]hose who make up the public court system … provide a service” and as such, they ‘must be alive to the way in which the community it serves handles and communicates information[19].” At this point, it is trite to state that we are living in the Information (digital) Age. Yet despite this, and similar to its inaction with regard to the changes brought by Bill 14, the Law Society failed to take steps to ensure that its licensees kept pace with technological changes in the society they serve. Partly as a result, Ontario’s court system was offline prior to the onset of Covid and fully collapsed thereafter. Neither outcome protected the public interest nor advanced the rule of law.

Conversely, in other areas, the Law Society has taken aggressive action to advance and protect (what it views to be) the public interest. Specific initiatives in this regard include the investigation of Alternative Business Structures[20], the adoption of a Regulatory Sandbox[21] and the recently explored Family Legal Service Provider license.

Despite this, the Law Society of Ontario has chosen not to implement any requirements regarding technological competence for its licensees, who prior to Covid, practiced in arguably the most technologically backwards, and lowest performing legal jurisdiction in either Canada or the US.[22] This likely impacted negatively upon both Court modernization and performance. Perhaps unsurprisingly, Law Society of Ontario licensees earn about half as much on average as their counterparts in New York State or Michigan[23] (earnings after all tend to be correlated to production/output or ‘productivity’ in business speak). It is hard to square this lack of action with the Law Society’s statutory mandate and this may help explain, at least in part, why the Ontario Court system seems intent on returning to Jurassic Park.

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[1] See e.g. Rules Regulating the Florida Bar

[2] Benchmarking the Ontario Court System

[3] Lakhani v. West, 2019 ONSC 1327 (CanLII) https://canlii.ca/t/hxqbg

[4] See e.g. Guideline to determine mode of proceedings in Civil, New court rules panned by lawyers and access to justice advocates, Chief Justice leads court backwards

[5] Bank of Montreal v Faibish, 2014 ONSC 2178 (CanLII) at par4.

[6] ABA Rule 1.1 Competence – Comment 8, Maintaining Competence

[7] LawSites – Tech Competence

[8] See also It’s Finally (Sort of) Here!: A Duty of Technological Competence for Canadian Lawyers

[9] Law Society of Alberta Code of Conduct, February 20, 2020 at pdf. Pg. 14.

[10] Law Society of Manitoba Code of Professional Conduct at pdf. Pg. 18.

[11] Law Society Newfoundland and Labrador Code of Professional Conduct at pdf. Pg. 17.

[12] Law Society of the Northwest Territories Code of Professional Conduct at pdf. Pg. 17.

[13] Nova Scotia Barristers’ Society Code of Professional Conduct at pdf. Pg. 12.

[14] Law Society of Saskatchewan Code of Professional Conduct at pdf. Pg. 24

[15] Law Society of Yukon Code of Conduct at pdf pg. 19.

[16] Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 26.

[17] Young Men’s Christian Association of Greater Toronto v. Municipal Property Assessment Corporation, 2015 ONCA 130 (CanLII) at para. 14. https://canlii.ca/t/ggfg9

[18] Federation of Law Societies of Canada, Model Code of Professional Conduct, as amended October 19, 2019, pdf. pg. 7.

[19] Bank of Montreal v Faibish, 2014 ONSC 2178 (CanLII) at par2.

[20] Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper, Law Society of Ontario.

[21] Regulatory Sandbox Advisory Council – Call for Applications

[22] Benchmarking the Ontario Court System

[23] Canada’s Best Jobs 2019: The Top 100 Jobs, $93,330 vs. US News Lawyer Salary, $174,060 USD or State Bar of Michigan 2020 Economics of Law Practice Attorney Income & Billing Rate Summary Report, $134,355 USD, weighted average of median private and non-private practice lawyers.