This is a notable entry from the Justis International Law & Technology Writing Competition 2019 in the category of The Future of Legal Technology, by Alec McIlwraith-Black of the University of Alberta. Find out more about the competition, the shortlist and winning articles here.
To say that technology has become important to the practice of law would be an understatement; “critical” or “indispensable” would be better choices. The benefits of incorporating technology into the practice of law have been apparent since the dictaphone and typewriter, and unequivocal since the widespread adoption of the personal computer. But far beyond such basic technologies, the past few years have seen products that offer the potential for dramatic changes in the way lawyers practice. A broad spectrum of new technologies have begun to challenge traditional practices of law, from digital loan document management and incorporation systems to the use of artificial intelligence in legal research and contract review. On the other side of the coin, as lawyers and law firms move to nearly ubiquitous digital storage, the risk of cyber attacks becomes ever more present. Law firms are the ideal target for cyber criminals: vast collections of information on numerous clients, and potentially outdated cybersecurity measures, make cybersecurity both an ethical obligation and business imperative for lawyers.
Enter the metaphor of the carrot and the stick: attempting to produce a desired result by promising a reward, while threatening (or administering) a punishment. In the case of lawyers’ adoption of technology in their practices, the “carrot” is self-evident. However, faced with a continuing need to educate lawyers on emerging technologies, perhaps the profession will consider looking to the “stick”.
Sometimes, clients will provide the stick. A technologically sophisticated client may – and in fact should – refuse to work with a law firm that does not have appropriately robust cybersecurity measures in place. However, sole practitioners or small firms dealing with non-technical clients may not find themselves dealing with similar requirements. Furthermore, leaving the issue of technology in practice up to a lawyer’s clients is a short-sighted approach. I would argue that it is time for the regulators of the legal profession to begin to consider the use of technology in the practice of law as an issue of legal ethics, an issue that demands attention from the profession as a whole. It is no longer appropriate for lawyers and legal practitioners to assume that “the way it’s always been done” is a reasonable standard by which to conduct their business. The lawyers’ ethical duties, such as the duty of confidentiality and the duty to provide a competent level of service to the client, are, whether explicitly or not, most definitely affected by the rise in prominence of technology in the legal profession.
In Canada, there is no explicit duty of technology competence for lawyers. While the American Bar Association has amended its Model Code of Professional Conduct to include commentary on technology competence, and, as of May last year, 31 states have adopted such a provision in their own Codes, Canada has yet to institute an explicit duty. As a result, the question of technology competence remains open. The CBA has suggested that the existing rules on competence do an adequate job of informing members as to their duties to remain competent with technology. There have been some notable attempts at such guidance: in its 2015 publication, Legal Ethics in a Digital World, the Canadian Bar Association reminds us that adapting legal ethics to emerging technology is “an ongoing and dynamic task.” On the regulatory front, while the Federation of Law Societies of Canada developed a recommendation to incorporate technology competence into its own Model Code, that suggestion has not yet been implemented. The suggestions by the Standing Committee, or any other modifications to the Code, may also be valuable in the sense of providing more guidance as to “competence” than is presently available. Notably, the FLSC recommendation recognizes that client confidentiality is a topic that has a great deal of bearing on the subject of technology. If implemented into the Model Code, this wording would link the duty of competence with lawyers’ fiduciary duty, at least to the extent of keeping client confidences, underscoring the transformative effects of technology in legal ethics.
A problem with the assumption that technology competence is caught by existing rules is that across the legal profession, the value and understanding that lawyers place in technology varies widely. Because legal technologies are regarded so differently by so many lawyers, the rules of competence will be read by each lawyer to include technology to the degree to which that lawyer understands technology to be necessary for competence. The CBA’s conclusion may be correct to the extent that the current rules on competence suggest technological competence to the technology-savvy lawyer. However, to the non-technical lawyer, the topic of emerging technologies and technological issues, such as cybersecutiry and cloud storage, may still be unfamiliar; as a result of this unfamiliarity, technology may not be imported into the rule on competence to the same degree. Although it is true that the CBA publishes “guidance”, such as the Legal Ethics in a Digital World document mentioned above, that is not the same as an explicit duty; the continuing legal education requirements in Canada include few references to technology.
One concern with importing this regulation into the legal profession through the requirement of competence is that “incompetence” carries with it a great deal of stigma. Finding a lawyer “incompetent” will have serious ramifications for their career, their firm, and their clients. A lawyer who has been found negligent, or in breach of their fiduciary duty, may in some cases continue to practice (albeit subject to the appropriate penalties). However, a lawyer who has been found to be incompetent will suffer at least a suspension, and possible disbarment. Law Societies take findings of incompetence seriously, and in extreme cases will justify disbarment under the mandate to protect the public interest. Incompetence, regardless of the actual penalty meted out by the Law Society, carries a heavy weight. However, a countervailing few of competence offers just as much of a criticism of its effectiveness: commentators “often wonder how seriously these obligations are pursued and enforced.” Consequently, the history of discipline for incompetence in the legal profession tends to be one of minimal enforcement except in severe cases.
Is competence an appropriate mechanism to manage lawyers’ use of technology? One school of thought suggests that reluctance to competence as a mechanism for regulating use of technology rests in a “fundamental misunderstanding” about what competence means: lawyers have criticized competence rules on technology on the grounds that “it is unreasonable to expect a lawyer to become an IT professional.” Without appropriate guidance as to what technology competence means for lawyers, that view would likely be a common one. Current guidance may in fact be sufficient if technology competence were made explicit. However, it is worth exploring the costs and benefits of competence further before deciding that it is the best path forward. As the world becomes increasingly digitized, clients bear the costs when lawyers and law firms fall behind. More impactful ethical rules regarding technology and the practice of law may offer a way forward. I would suggest that the best answer lies somewhere between the two extremes. The best path forward is one that will be able to ground members’ expectations of the use of technology in the profession, providing a platform for the various technology-forward educational initiatives across the legal profession, while not unnecessarily crucifying any late adopters. The implementation of such rules would present a dramatic shift in thinking about the way lawyers are regulated; a shift, I submit, is necessary in the context of the pace of change in technology today. Incorporating technology into the ethical rules of the profession “captures an important shift in thinking about competent twenty-first century lawyering”: it is time for technology-enabled lawyering to be seen not as the exception, but as the rule.
The views and opinions contained herein are the author’s own, and do not represent the views of Fasken Martineau DuMoulin LLP.
Alec McIlwraith-Black is currently attending the University of Alberta Faculty of Law. Alec serves as an editorial board member and Treasurer of the Alberta Law Review and as Co-President of the Law and Business Association, and founded and co-organized the Legal Innovation Conference in partnership with the office of Dean Paul D. Paton. Alec is also an avid mooter, the winner of both the Dean’s Cup and Brimacombe moots at the Faculty of Law, and placing in the top ten oralists in the national Davies Corporate/Securities Law Moot. He is currently working as a summer student with Fasken Martineau DuMoulin LLP in Toronto.
 Legal technologists would do well to recall that a not-insignificant proportion of the profession has been practicing since before the widespread use of the personal computer. I have done my best to take this fact into consideration in my recommendations.
 See e.g. the commercial lending transaction platform developed for Edmonton law firm Witten LLP: David Staples, “The rise of Kim Krushell, tech entrepreneur and champion” The Edmonton Journal (7 November 2018), online: <https://edmontonjournal.com/business/local-business/david-staples-13>
 American Bar Association, “Cybersecurity: Your ethical obligations outlined by legal tech experts” (October 2018) Around the ABA (blog), online: <https://www.americanbar.org/news/abanews/publications/youraba/2018/october-2018/learn-the-ethical-obligations-inherent-in-protecting-your-firms-/>
 American Bar Association: Model Code of Professional Conduct, Chicago: ABA, 2018, ch 1.1, commentary 8, online:<https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1.html>
 Robert Ambrogi, “I Missed One, So Now It’s 31 States That Have Adopted Ethical Duty of Technology Competence” (15 March 2018), LawSites (blog), online: <https://www.lawsitesblog.com/2018/03/missed-one-now-31-states-adopted-ethical-duty-technology-competence.html>
 See e.g. The Law Society of Alberta: Code of Professional Conduct, Edmonton: Law Society of Alberta, 2018, ch 3.1-1(k): one of the qualities of a “competent lawyer” is “otherwise adapting to changing professional requirements, standards, techniques, and practices.”
 See e.g. Canadian Bar Association, Legal Ethics in a Digital World, Ottawa: CBA, 2018, online: <http://www.cba.org/getattachment/Sections/Ethics-and-Professional-Responsibility-Committee/Resources/Resources/2015/Legal-Ethics-in-a-Digital-World/guidelines-eng.pdf>
 Federation of Law Societies of Canada: Model Code of Professional Conduct Consultation Report, Ottawa: FLSC, 31 January 2017, online: <https://flsc.ca/wp-content/uploads/2014/10/Consultation-Report-Draft-Model-Code-Amendments-for-web-Jan2017-FINAL.pdf>
 In the province of Ontario, for example, a 90-page revision of the Law Society’s Continuing Professional Development program contains only two references to technology under “Practice Management”. See https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/convmay2013_jointreportpscpdc.pdf
 See e.g. Nova Scotia Barristers’ Society v Richey, 2002 NSBS 8: incompetence has a “distinctively negative connotation”, but “good lawyering skills on some files is no defence to incompetent lawyering on other files”
 See e.g. Law Society of Alberta v Riccioni, 2013 ABLS 1: a finding of extreme incompetence led to disbarment, holding that “[t]he Law Society cannot let the Member practice because it has to protect the public.”
 Alice Woolley et al, eds, Lawyers’ Ethics and Professional Regulation, 3rd ed (Toronto: LexisNexis Canada Inc, 2017) at 173
 Sharon D Nelson and John W Simek, “Why Do Lawyers Resist Ethical Rules Requiring Competence With Technology?” (March 27, 2015), Slaw (blog), online: <http://www.slaw.ca/2015/03/27/why-do-lawyers-resist-ethical-rules-requiring-competence-with-technology/>
 Andy Perlman, Dean of Suffolk Law School, quoted in Tyler Roberts, “What Is A Lawyer’s Duty of Technology Competence?” SmartLawyer (2 February 2018), online: <http://www.nationaljurist.com/smartlawyer/what-lawyers-duty-technology-competence>