40 years ago, IBM dazzled the whole world with the first microcomputer, the IBM PC 5150. Born in the 1970s, the personal computer was not really going to start its career until the arrival of the first PC.
Technology thus entered the legal world, and firms have been using it ever since. However, after all these years, techno-dummies are still legion in the profession. Despite the ubiquity of virtual meetings and smartphones.
At least that’s what we can conclude from several comments slipped into recent decisions by Ontario judges during Covid and documented by Fogler’s Toronto lawyers, Rubinoff.
The courts get involved
Thus, in Worsoff v. MTCC 1168 et al, the court takes to task lawyers who prefer to plead in person. “Efficiency and gains in terms of accessibility of access to justice always outweigh the comfort of lawyers. (…) The lawyer and the court both have a duty of technological competence,” the judgment reads.
In Cass v. 1410088 Ontario Inc., the court admonishes a lawyer who charged his client some $900 in printing costs, finding that searching virtual databases would have provided better service. And cost less, while using an AI-powered search service would have reduced billable hours.
In Arconti v. Smith, the judge flatly refuses a request that the hearings be in person, rather than virtual. “We are in 2020, writes the judge. We are no longer working in pen and ink,” so hearings will take place virtually.
In short, several lawyers seem to be resisting the wave, the despair of the judges.
To counter this resistance, the Federation of Law Societies of Canada adopted in 2019 a technological proficiency requirement, which it was hoped would be taken up by the codes of conduct of the provincial bars.
In the United States, such provisions have existed since 2012 in around thirty states.
To date, in Canada, 7 out of 10 provinces have adopted such ethical provisions.
This is particularly the case with the Barreau du Québec. Since November 2020, the Code of ethics for lawyers insists on the obligation of technological competence as an integral part of the practice.
Indeed, article 21 provides that “(the) lawyer exercises his professional activities with competence. To this end, he develops and updates his knowledge and skills (including) those relating to the information technologies that he uses in the context of his professional activities.
The Accounting and Professional Practice Standards for Lawyers Regulation is also replete with examples where technology is invoked. The Barreau du Québec also offers an IT user guide applicable to practice.
A digital divide
The fact remains that despite these advances, the gap between the evolution of technologies and the mastery that lawyers have of them remains substantial.
We all remember this poor lawyer who showed up at a virtual hearing before a judge last year, unable to get rid of the Zoom filter that decked him out with a cat’s head. “I am not a cat”, we hear him defend himself on Youtube.
“It illustrates very well where many lawyers are in terms of technological skills”, summarizes Dominic Jaarpartner and regional leader at KPMG.
This lawyer specializing in techno-legal services notes that there is a considerable gap between digital advances and the technological mastery of lawyers. “In business, on the cybersecurity front, legal affairs are on the defensive, and do not exercise leadership,” he observes.
An even more glaring example of the lack of technological leadership of the legal profession: the still too restricted acceptance of payment by credit card. These are the kinds of examples mentioned in a 2015 article on ethics in the virtual age, an article signed by Dominic Jaar and his colleague Francois Senecalalso from KPMG.
Document management, file management, the offer of virtual services, office suites, the dissemination of information, the website, e-mail and telephone, these are all areas that lawyers must consider.
This multiplication of the offer and of digital tools means that, “for lawyers who have not seized or even not already seen an opportunity, there may be a feeling of delay or of catching up. (…) (Many tools are now used (…) unfortunately without certainty as to the legal and ethical risks involved”, write Mes Jaar and Sénécal.
They add: “A reasonable knowledge of technologies and, even more, the development of reflexes will limit the exposure of the lawyer, and by extension his clients, the legal and judicial systems, and the public, to the risks inherent in new technologies. . »
Seven years later, Dominic Jaar believes that these claims are still valid.
Moreover, the main point of the statement made by Mes Jaar and Sénécal is taken up by Me Brigitte Deslandesof the École du Barreau, in its overview last year of the criteria of the Professional Inspection Committee of the Barreau du Québec to assess the competence of a lawyer.
In the most recent edition of the Ethics, professional conduct and professional practice guide, Me Deslandes believes that technological competence should be integrated into the professional inspection criteria, because “competence (…) consists both in the continuous development of one’s knowledge and skills related areas of law and with regard to information technologies and their use in the context of his professional activities”.