Lawyers In A Digital Age: An Emergent Duty Of Technological Competence In Ontario? – Strategy
August 1981 marked the 40th anniversary of the IBM
PC. Not long after, lawyers began to adopt the invention for their
practices. Yet, despite the decades of law office technologization
and — especially since COVID-19 — the centrality of
tech to the practice of law today (does anyone send paper
letters still? and aren't Zoom meetings convenient?),
a lawyer's duty of technological competence has yet to become
universal.
That may have just changed in Ontario.
WORSOFF v MTCC 1168: A Declaration of A Dutyof
Technological Competence?
In the recent decision of Worsoff v MTCC 1168 et al, 2021 ONSC
6493, Justice Myers made the judicial declaration that has been
a long time coming (at para 32(g)): "Counsel and the court
alike have a duty of technological
competency...".
Until that declaration, neither the Law Society of Ontario
(LSO) nor any prior Ontario decision had held that
lawyers had such a duty. But it was only a matter of time before
the courts imposed it, as Information Technology in law enters its
fifth decade, and the COVID-19 pandemic stretches on with
technology-based proceedings and transactions becoming
normalized.
Earlier Hints of a Duty
Even before the pandemic, some Ontario courts had made
pronouncements betokening a judicial expectation of lawyers'
technological competence, and an obligation to take advantage of
technology.
Cass v. 1410088 Ontario Inc. 2018 ONSC 6959
was a costs decisions after the defendant's successful summary
judgment motion. Justice Whitten found the defence's $900 legal
research fee claim for case printouts to be excessive. If
"artificial intelligence sources were employed", His
Honour noted, "no doubt counsel's preparation time would
have been significantly reduced". Justice Whitten reduced the
defendant's disbursement claim by over 50%.
In a mirror decision to Cass, Justice Perell allowed a
$1,323 disbursement for legal research using WestLaw in
Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC
5350. Justice Perell observed that "computer-assisted
legal research is a necessity for the contemporary practice of law
and computer assisted legal research is here to stay with further
advances in artificial intelligence to be anticipated and to be
encouraged."
In Arconti v. Smith, 2020 ONSC
2782, Justice Myers was faced with plaintiffs who were
objecting to conducting examinations by videoconference. His Honour
would have none of it and decided against the plaintiffs. Presaging
his declaration in WORSOFF, His Honour observed in his
distinctly colourful, authoritative manner (at paras 19 and
33):
[...] "It's 2020". We no longer record
evidence using quill and ink. In fact, we apparently do not even
teach children to use cursive writing in all schools anymore. We
now have the technological ability to communicate remotely
effectively. Using it is more efficient and far less costly than
personal attendance. We should not be going back. [...]
In my view, in 2020, use of readily available technology is
part of the basic skillset required of civil litigators and courts.
[...]
In Real One Realty Inc. v. Jing Liu, 2020 ONSC
8190, released only a few months after Arconti,
Justice Steele cited Justice Myers' words when she ordered a
trial to proceed by videoconference over the objections of
plaintiff's counsel. Her Honour observed (at para 15):
[...] I'm not happy ordering a virtual trial on a party
against their will. However, we must find a way in these
times to keep matters moving. Unfortunately for all of us, we
don't know how long these unusual times may last. We have
to embrace technology in the current environment. This may
mean doing things through technology that are outside our comfort
zone. Through this pandemic we have all had to make
significant changes, and technology has played a very significant
role in this regard – businesses had to move many or all of
their employees to work remotely, many universities are operating
their classes online, and courts have continued to hear many
matters through platforms such as "zoom".
A Duty in Most of Canda, Only Guidelines in
Ontario
Lawyers in most of Canada have a positive duty of technological
competence.
In 2019, the Federation of Law Societies of Canada's Model Code of Professional Conduct
added technology to its criteria for competence in 2019, as
follows:
3.1-2 [4A] To maintain the required level
of competence, a lawyer should develop an understanding of, and
ability to use, 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.
[4B] The required level of technological
competence will depend upon whether the use or understanding of
technology is necessary to the nature and area of the lawyer's
practice and responsibilities and whether the relevant technology
is reasonably available to the lawyer. In determining whether
technology is reasonably available, consideration should be given
to factors including:
(a) The lawyer's or law firm's practice
areas;
(b) The geographic locations of the lawyer's or
firm's practice; and
(c) The requirements of clients.
As of this writing, the Canadian Bar Association and 7 provinces
and territories have adopted the FLSC provision,1 while two provinces
have imposed a similar duty.2 Only Ontario, Prince Edward
Island, British Columbia, and Nunavut do not define competence to
include technology.
In Ontario, the LSO has released a Practice Management Guideline on technology,
but it does not impose a duty on lawyers. The Guideline says only
that lawyers "should have a reasonable understanding
of the technologies used in their practise or should have access to
someone who has such understanding." It also makes some uses
of technology mandatory, such as the electronic registration of
real property, or courts' and tribunals' electronic filing
systems.
South of the border, 39 US states have adopted the 2012 American Bar
Association's amendment to Comment 8 of its Model Rule of Professional Conduct 1.1
(Duty of Competence), which reads as follows:
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.
Conclusion: The Emergent Duty in
Ontrio
It was in this context that Justice Myers in Worsoff
addressed — as he had in Arconti —
plaintiff's counsel who was reluctant to conduct examinations
virtually. "It's now 2021," stated His Honour,
paraphrasing his words in Arconti, "Virtual
proceedings have proven to be one of the first significant
enhancements in access to justice since Hryniak was
decided in 2014" (at para. 35).
Since releasing Worsoff, Justice Myers elaborated on
the duty of technological competence in the December 10, 2021
episode of The Yunusov Question podcast (available in
audio and text here).https://lawto.ca/justice-fred-myers-on-becoming-a-judge-lawyer-competency-electronic-trials-and-changes-to-come/
Some choice comments by His Honour from the podcast:
[...] there is a federation of law societies in Canada,
which is the group of all the law societies across the country. And
they have a draft model rules of ethics. And in it, there is a
specific rule of ethics that lawyers shall be technologically
competent. Part of competency is technology. Now that doesn't
mean you have to be an expert at using every single program, but
you have to keep up and you have to be able to manage in the real
world. Ontario is one of the only provinces that has not made that
provision part of our law. So I hinted at it in Arconti, that you
were referring to a minute ago. About a month ago, I said it more
specifically in a case called Worsoff, where I said there is a duty
of technological competency, but it doesn't come from the rules
of ethics because it's not there yet.
[...] And sort of you have to understand that we are the
most conservative profession. It is almost impossible to turn the
ship. And certainly my little voice, I've been told very
clearly by the powers that be in my court, that we don't make
law, we're just the superior court. We're not the court of
appeal. So I'm one voice among 325. And if people will... What
I try to do is get conversations going and be part of a
conversation.
Because obviously I don't make the final decisions on any of
these matters and nor should I. But we have a very conservative
profession.[...]
The benefits of technology in the legal field are limitless.
From access to justice, greater efficiency, and lower costs for
clients, tech is plainly here to stay. By declaring a lawyer's
duty of technological competency, Justice Myers has, in our view,
done both the profession and the public in Ontario a service.
We can only hope that the LSO will follow suit, adapt to
changing times and ensure that its members offer services tailored
to the demands of the times, be they in a courtroom or before a
screen.
This article was originally published by The Lawyer's
Daily (www.thelawyersdaily.ca), part of
LexisNexis Canada Inc.
Footnotes
1. Nova
Scotia (Code of Professional Conduct);
Newfoundland (Code of Professional Conduct);
Manitoba (Code of Professional Conduct);
Saskatchewan (Code of Professional Conduct);
Alberta (Code of Conduct); Yukon (Code of Conduct); Northwest
Territories (Code of Professional
Conduct).
2.
Quebec (
Code of Professional Conduct of Lawyers –
"21. A lawyer must engage in his professional activities with
competence. To this end, he must develop his knowledge and skills
and keep them up to date.
For the purposes of the first paragraph, the knowledge and
skills related to information technologies used within the scope of
the lawyer's professional activities are part of the knowledge
and skills that a lawyer develops and keeps up to date."); New
Brunswick (Code of Professional Conduct –
adopted the language of [4A] but not of 4[B]).
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