Law Times

Page 10 December 4, 2017 • Law Times www.lawtimesnews.com Standards may require technological competence BY DALE SMITH For Law Times T he Federation of Law Societies of Canada is proposing to amend its baseline standards of professionalism for lawyers to include technological com- petence, 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 Fried- man, 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 com- petent 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 technol- ogy relevant to the nature and area of the lawyer's practice and responsibilities." "A lawyer should understand the benefits and risks associ- ated 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 ar- eas, such as access to justice, she says. "There's no doubt that tech- nology can assist in creating ef- ficiencies 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 ser- vice providers from traditional consulting companies up to ex- ternal 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 aware- ness of the services that are avail- able because it is cost-effective for clients. "It's a positive thing to include that requirement, and it will en- courage 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 technol- ogy can promote access to jus- tice, and she also notes the inclu- sion 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 prac- tices, technology would be more about promoting efficiency." Millar says the federation may benefit from emphasizing "the tools for the purposes of delivering services more effi- ciently for clients." For example, she says, technology could be a proxy for the obligation to bill appropriately and in a cost- effective 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 cli- ents to tens of thousands of dol- lars in costs without realizing it," says Millar. She says she doesn't believe that learning about technology necessarily makes for better law- yers, but it is more about deliv- ering someone's legal brand of services more efficiently. Millar also worries that the message from the proposed change might be too much em- phasis 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 Riv- ers 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 in- struction about broad issues about how you can use techno- logical resources and how they help," says Friedman. "The perfect example is e- discovery." Friedman says that the e- discovery implementation com- mittee is offering a program at Ryerson on e-discovery, but most of the law schools in Cana- da 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 edu- cation programs so that senior lawyers can know the options. "I don't think there's any rea- son why a senior practitioner should have any more trouble spotting an issue related to tech- nology 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. LT FOCUS 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. © 2017 Thomson Reuters Canada Limited 00245UI-88303-NK Introducing Personal Injury Practical Guidance — now available on WestlawNext Canada Litigator — a powerful toolkit of 'how-to' practical resources. With this new module on Litigator, you can instantly evaluate what your client's claim should be worth, using different assumptions. Personal Injury Practical Guidance is available alongside a wide range of practice tools which together comprise a revolutionary research and workflow solution for Personal Injury litigators. 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