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Standards may require technological competence

Focus on: E-Discovery
|Written By Dale Smith
Standards may require technological competence
Alyssa Tomkins says that if there isn’t technological competency in-house, there should be an awareness of the services that are available because it is cost-effective for clients.

The Federation of Law Societies of Canada is proposing to amend its baseline standards of professionalism for lawyers to include technological competence, even though most law schools in Canada don’t teach how to use innovative digital tools.

“My view is, like everything when you’re a lawyer, you have to know enough to know what you don’t know,” says Kelly Friedman, partner with DLA Piper (Canada) LLP in Toronto.

“I don’t think it means you have to be able to use the tools. The key is you have to be competent enough in that you’re knowledgeable about what there is out there, what it can do and who you can go to if needed.”

The proposed guidelines in the Model Code of Professional Conduct consultation report, dated Jan. 31, 2017, proposes that “a lawyer should develop and maintain a facility with 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,” says the guideline. Section 3.3 lays out the confidentiality requirements to which lawyers must adhere. Friedman says that, sometimes, the fear of technology means that people do not embrace tools that could be useful to them. Embracing technology could also lead to benefits in other areas, such as access to justice, she says.

“There’s no doubt that technology can assist in creating efficiencies that promote access to justice,” says Alyssa Tomkins, partner at CazaSaikaley LLP in Ottawa.

Tomkins says that, when it comes to senior lawyers, there is a lot of help out there to help guide them, as well as lists of service providers from traditional consulting companies up to external review counsel.

“For senior counsel, what they have to be aware of is these efficiencies exist and technology, particularly on large document files, is imperative and they have to take advantage of the services that are out there to assist them,” says Tomkins.

She says that if there isn’t technological competency in-house, there should be an awareness of the services that are available because it is cost-effective for clients.

“It’s a positive thing to include that requirement, and it will encourage lawyers to be aware of opportunities that technology presents in access to justice,” says Tomkins.

Sarah Millar, partner and head of discovery management at Osler Hoskin & Harcourt LLP in Toronto, agrees that technology can promote access to justice, and she also notes the inclusion of protection of the privacy of the client’s data as part of the proposed changes.

“I think it’s a fair amendment, because increasingly practices are relying on technology,” says Millar. “Clearly, there are some practices where technology is the lynchpin, like my practice, whereas in other people’s practices, technology would be more about promoting efficiency.”

Millar says the federation may benefit from emphasizing “the tools for the purposes of delivering services more efficiently for clients.” For example, she says, technology could be a proxy for the obligation to bill appropriately and in a cost­effective way.

“I’ve been on too many phone calls where you have these senior [lawyers] who are talking about e-discovery who don’t know what they’re talking about and could be committing their clients to tens of thousands of dollars in costs without realizing it,” says Millar.

She says she doesn’t believe that learning about technology necessarily makes for better lawyers, but it is more about delivering someone’s legal brand of services more efficiently.

Millar also worries that the message from the proposed change might be too much emphasis on learning technology, which doesn’t substitute for the practice of law.

Currently, the only law schools in Canada that offer training on innovative digital tools are Toronto’s Osgoode Hall Law School, the University of Calgary and Thompson Rivers University in B.C.

“The law schools don’t have to teach the specific tools and probably shouldn’t, but they have to give more general instruction about broad issues about how you can use technological resources and how they help,” says Friedman.

“The perfect example is e-discovery.”

Friedman says that the e-discovery implementation committee is offering a program at Ryerson on e-discovery, but most of the law schools in Canada aren’t taking it up on the offer to help them with a curriculum.

Friedman says that overview courses on technology and the law would be useful, especially in how technology can be used in the practice of the law to make it more efficient and easier, what clients expect of it and that this could be part of continuing education programs so that senior lawyers can know the options.

“I don’t think there’s any reason why a senior practitioner should have any more trouble spotting an issue related to technology than they would with an issue related to a substantive area of law outside of their expertise, which we all have to do,” says Friedman.

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