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Tech debate hits bencher election

Guidelines or rules suggested
|Written By Anita Balakrishnan
Tech debate hits bencher election
Lisa Danay Wallace says there doesn’t need to be a hard and fast rule on how up to date lawyers are on technology.

Lawyers say they are looking to the Law Society of Ontario for guidance on technology issues, particularly cybersecurity and access to justice. But at the same time, bar members and bencher hopefuls disagree on how far the LSO should go in creating new rules to enforce technological competency.

“There are sole practitioners and smaller law firms that have been practising in a paper-based practice for a long time and there are ways to balance the obligations around being cost effective and timely,” says Lisa Danay Wallace, an associate at WeirFoulds LLP in Toronto, who is not running for bencher but plans to vote in the upcoming April 30 election. “I don’t think it has to be a hard and fast rule that either you’re completely up to date on technology or you’re not.”

While there seem to be new digital resources available for lawyers, there is no explicit rule that lawyers in Ontario must be competent in the use of technology.  

“The law society needs to take a leadership role to guide the profession in this direction, and to date they haven’t taken a very good role,” says Toronto lawyer Mitch Kowalski, who is running for bencher.
He says lawyers are looking for “actual guidance, as opposed to a CPD event.”

“There’s so much out there on legal technology. Every day there are press releases and announcements and committees — and it gets so noisy that it is impossible for a sole practitioner or a small firm to keep on top of their practice, keep on top of the law and now these technology things,” he says.

Two years ago, a committee at the Federation of Law Societies of Canada proposed amending its model code to address technological competence.

The consultation paper said the committee “considers a lawyer’s understanding and maintenance of technological competence to be an ethical issue of significant importance that should be specifically referenced in the model code.”

The LSO created a technology task force in the summer of 2018 to begin looking at these issues, including the model code proposal, says LSO Treasurer Malcolm Mercer. The law society does have practice management guidelines on technology use posted on its website, including 12 recommendations on mandatory technology use, confidentiality, practice management software, marketing, piracy and backups.
Brooke MacKenzie, who practises at MacKenzie Barristers PC in Toronto, says that, when she started out, she was confused on what the law society’s position was on topics lsuch as cloud storage.

(PracticePRO has since addressed the issue in a January 2018 article.) MacKenzie, who is not running for bencher and is pursuing her PhD in lawyer professional regulation issues at the University of Toronto, says she doesn’t necessarily think more rules are the answer, although she supports commentary proposed by the FLSC.

“I don’t think any new rules are required to protect clients’ confidential information even as technology evolves. If lawyers are compromising clients’ confidential information, that’s already a breach of their existing duties,” says MacKenzie.

“We should be viewing existing obligations through the lens of existing technology.”

Mercer says he thinks the law society’s approach historically has been correct — by addressing issues of confidentiality, for example, but not being prescriptive about how it is done. Trying to evaluate cybersecurity programs through the law society could be “foolish,” he says.

“We don’t have mandatory technological CPD right now. There are programs available that satisfy existing requirements that focus on technology. . . . My own view is that there is danger setting minimums for so many different things that you end up fragmenting the CPD,” he says. “The law society isn’t in the business of evaluating cybersecurity, and frankly I would be really disturbed if it tried.”

Rebecca Bromwich, who is running for bencher, says she shares concerns about the law society micro-managing lawyers when it comes to technology, but she ultimately thinks the LSO should come out with some sort of rules.

“We should end up with a rule about tech competence, and we should have that soon, but I don’t want to impose one more thing on lawyers without supporting them,” says Bromwich, a per diem Crown with the Ministry of the Attorney General in Ottawa and a professor at Carleton University’s Department of Law and Legal Studies.

Caryma Sa'd, principal at her own law firm and a bencher hopeful, says that, while it would be helpful for the LSO to establish a baseline for lawyers’ tech knowledge through published best practices, she doesn’t support anything as drastic as a test or exam. However, she says the law society does have a role in professional development and in promoting the public interest in terms of access to justice and modernizing the court system.

“Lawyers are the ones on the ground who are experiencing . . . delays because of a lack of technology, especially in Ontario,” says Sa'd, adding that she supports “pushing key justice sector participants toward modernizing.

“If we can play a role in making that happen, we absolutely should.”

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