More than a year after the public release of ChatGPT, excitement continues to build about the use of generative AI in the delivery of legal services. Notes of caution persist, too, as examples of lawyers using AI badly continue to trickle out (see, e.g. here and here). Although the full impacts of generative AI on the work of lawyers are yet to be seen, there is clearly an immediate need to discuss the responsible and ethical use of AI by legal professionals.

Canadian lawyers have a general duty of technological competence. In previous Slaw columns, I’ve discussed two ways . . . [more]

Earlier this month, the Canadian Judicial Council published updated ethics guidance for federally appointed judges. The new Ethical Principles for Judges substantially revises a 1998 document of the same name. Among the revisions is a caution that judges must be technologically competent. The section addressing judicial diligence and competence includes the following statement:

3.C.5 Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties.

This provision on technological competence is a welcome addition to the Principles. Two years ago, I argued in a Slaw column that there should be a formally . . . [more]

Over the past decade, many commentators, myself included, have argued that lawyers should have a duty of technological competence. This duty now exists: in October 2019, the Federation of Law Societies of Canada amended its Model Code rule on competence to include explicit reference to technological competence. Several provincial and territorial law societies have incorporated this amendment into their respective codes, and more will hopefully soon follow suit.

The fact that there now exists a formal duty of technological competence raises the question of what, exactly, does this duty entail? What does this duty require from lawyers? In a strict . . . [more]

For years, Slaw commentators (including myself) have called for Canadian law societies to adopt a duty of technological competence for lawyers. On October 19, 2019, a major development occurred, which has largely gone unnoticed. The Federation of Law Societies of Canada amended its Model Code of Professional Conduct to add the following commentary to the competence rule (r. 3.1-2):

[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 . . . [more]

It is now relatively uncontroversial that lawyers should be technologically competent. A duty of technological competence has been included in the American Bar Association’s Model Rules of Professional Conduct since 2012 and has subsequently been adopted in 36 states. Here, in Canada, a similar duty is under active consideration by the Federation of Law Societies of Canada for inclusion in their Model Code.

Much less has been said and done in relation to judicial technological competence; it’s time for this to change.

To be sure, the proposition that judges need to understand technology is not an entirely new . . . [more]

OK, Canada may be somewhat behind our neighbours when it comes to adopting rules around technological competence for lawyers, but at least “Digital Citizenship” is getting some traction—or at least with respect to standards for children and parents.

On Friday November 13, 2015, while two more states adopted a duty of technology competence into their codes—and while Canadian law societies maintained unanimous silence on such requirements for lawyers—British Columbia’s Office of the Information & Privacy Commissioner and Representative for Children and Youth, released Cyberbullying: Empowering Children and Youth To Be Safe Online and Responsible Digital Citizens. The Privacy . . . [more]

Much electronic ink has been spilled in the pages of Slaw over the need for lawyers to up their game when it comes to using technology. In a previous column, I argued that “while technological competence might once have been properly seen as a helpful but optional skill set,….[it] is now essential to delivering effective and ethical legal services”, but then hedged, “[e]xactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves.” Both of these observations seem unavoidably true. The problem is, however, they only . . . [more]

Canada’s law societies have long had a reputation for being slow, if not resistant, to change. I’ll leave it to others to argue the extent to which this has been, in the past, a fair characterization. Looking at current initiatives like the Nova Scotia’s Barristers’ Society’s Transforming Regulation consultation and the work of the Law Society of Upper Canada’s Working Group on Alternative Business structures, it is apparent that right now there is significant “big picture” thinking going on at Canadian law societies about how to innovate and modernize lawyer regulation.

It remains to be seen, of course, if . . . [more]

On May 26, 2022, Convocation is considering recommendations from the Competence Task Force. The key recommendations are outlined below:

• Effective January 2024, all licensees who are designating as sole practitioners for the first time would be required to take a practice essentials course comprised of practical training on foundational practice and business management topics.
• The Rules of Professional Conduct and the Paralegal Professional Conduct Guidelines be amended to adopt the commentary regarding technological competence included in the Model Code of Professional Conduct.
• The Certified Specialist Program be wound up, effective September 1, 2022, with:
  1. current Certified Specialists able to use

The fear of being replaced by “robots” is not unique to our profession. Automation is predicted to impact even highly skilled workers. But the legal profession is well placed to ride the waves of artificially intelligent systems with confidence rather than panic.[1] We should not be concerned about being replaced—it should be our A.I. assistants that should concern us, particularly those marketed as case or litigation prediction tools.

The legal profession should embrace AI tools that improve efficiencies, access to justice and results for our clients. However, we must set thoughtful norms about how new and old lawyers alike . . . [more]

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

When I suggested ten years ago that email would become the principal means by which clients and lawyers would communicate, many people suggested I was dangerous, that I was possibly insane, that I should not be allowed to speak in public, and that I certainly did not understand anything about security or confidentiality but [email] technology and many other emerging technologies have now firmly taken hold.[1]

So much has changed in a relatively short period of time when it comes to our use of technology in delivering legal services. As noted by Richard Susskind above, the use of email . . . [more]