In October 2014, the Law Society of Upper Canada introduced a significant revision to the Rules of Professional Conduct. Absent from the update was any new material on lawyers’ obligations with respect to the use of technology. While the LSUC does provide some guidance through its online publications and its technology practice management guidelines, neither of them provides concrete answers on what is and isn’t acceptable when it comes to the use of technology in a law practice.
Compared with recent changes from the American Bar Association to its model rules of professional conduct, it seems the LSUC has chosen to remain silent on an important subject.
There’s much discussion online of the ABA’s revised rules. It specifically modified the model rules to incorporate and reflect the reality of technology use in the practice of law and its growing role in terms of competency, efficiency, and the adequacy of providing legal advice. For example, paragraph 8 of the comment on maintaining competence says: “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.”
Similarly, the comment to the rule on confidentiality deals with the safeguards lawyers should take to avoid unauthorized access by third parties: “Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.”
The LSUC’s silence on issues like these in the latest rules update means the only place to look for technical guidance is the LSUC technology practice management guideline. Unfortunately, the guideline begins with the following disclaimer: “The Guideline is not intended to replace a lawyer’s professional judgment or to establish a one-size-fits-all approach to the practice of law. Subject to Guideline provisions that incorporate legal, By-Law or Rules of Professional Conduct requirements, a decision not to follow the Guideline will not, in and of itself, indicate that a member has failed to provide quality service. Conversely, use of the Guideline may not ensure that a lawyer has delivered quality service. Whether a lawyer has provided quality service will depend upon the circumstances of each case.”
In other words, lawyers can’t rely on the guideline to offer concrete guidance on what technology the LSUC approves and will have to rely on their own professional judgment. In my experience, that has two drawbacks. First, the approach puts the onus on the lawyer to analyze and decide the suitability of technology, a task we don’t have the training to do. It also places the developers of technology in a precarious position of having to create software and interpret rules in a satisfactory way in order to meet compliance obligations.
For those who want to innovate and create technology for our sector, what’s already a risky enterprise becomes even riskier. Any lawyer’s first question before adopting any new technology is to consider what the LSUC says about it. That reflects the real risk solo and mid-sized law firms face whereby a practice audit might deem their choice of software and technology to be out of compliance with the firms having to rewrite their internal systems to match an auditor’s interpretations of the rules.
The risk drives many lawyers away from the adoption of any new or disruptive technology. Instead, it encourages the attitude that the only way to stay in compliance with practice requirements is to use the same technology and systems everyone else uses and is, therefore, one of the reasons why our industry is so slow to adopt new technologies.
When it comes to the question of how much guidance the LSUC should provide in relation to technology, I’ve found people generally fall into one of three camps. Not surprisingly, there’s a large group of people who are apathetic as to any position the LSUC might take on the matter. The second camp is quite happy with the hands-off approach by the LSUC. According to that camp, the wording of the Rules of Professional Conduct is broad enough to encompass our duties and obligations as they pertain to technology. Some would be as bold as to say the LSUC doesn’t have the appropriate expertise to make such decisions and we’re better off with its hands-off approach.
However, there’s a third camp whose members actually believe the silence as it pertains to the use of technology is the wrong approach and there should be a greater guidance by the LSUC as the regulating body on what’s appropriate and, more particularly, what options lawyers can choose. I’ve also heard some people speak about an economic cost to the uncertainty derived from our current approach and how it discourages technology adoption and increases costs for the sole proprietor. It’s that exact reasoning that I understand was one of the drivers behind the changes to the ABA model rules.
So which of these three camps are right? I’m torn between the second and third camps. However, I do think the ABA model rules strike the right balance with respect to broadly defined rules and commentary that reflects the current and changing practice of law.
Monica Goyal is a lawyer and technology entrepreneur. She’s the founder of My Legal Briefcase and Simply Small Claims. You can follow her on twitter at @monicangoyal.
