Guiding the Climb to Technological Competence
- 1. THEADVOCATE NEWS FROM COURTHOUSE LIBRARIES BC By Nathaniel Russell* "With the ever-increasing impact of technology on the practice of law, a lawyer using technology must either have reasonable understanding of the technology used in the lawyer's practice, or access to someone who has such understanding." -Federation of Law Societies of Canada "Guidelines on Ethics and the New Technology", April 2002 GUIDING THE CLIMB TO TECHNOLOGICAL COMPETENCE The above quotation is now 12 years old. Most of this is nothing new. Lawyers who choose to use technology in the course of practice are expected to do so competently, and ethically. But what of the technologies we never chose and just turned up suddenly and invited themselves in: the social web' that wheedled itself into our lives, interconnected our private details and became enmeshed within the factual matrix of many litigation files; or the Internet itself, which undergirds nearly all communication- not just e-mail, but modern landlines too and interconnects nearly every modern apparatus, from phones to cars? Is it even possible to opt out of a "reasonable understanding" of social media, metadata, GPS tracking, phishing scams, etc.? Or has this choice been abrogated? FAMILIARITY WITH TECHNOLOGY AS A CORE CONDITION OF COMPETENCY Technology is engaged by nearly every chapter in the ProJession l Code of' Conduct ("the Code") and can cause issues under any of the head rubrics of * Nathaniel R.Russell isa liaison lawyer with Courthouse Libraries BC.
- 2. THEADVOCATE competency, confidentiality, marketing, party/witness/juror/judicial com- munications and others. Courthouse Libraries B.C. helps lawyers improve their competency, both in the classic legal research sense and with help in understanding technol- ogy. The definition of "competence" has evolved from the old Professional Condct Ilandbook ("the Iandbook") concept of substantive/procedural knowledge plus other "skills to represent the client's interests effectively",' to a more fulsome definition of "competent lawyer". Chapter 3.1-1 of the Code enumerates attributes that a competent lawyer must possess, includ- ing investigatory, legal research and effective practice management skills, plus the ability to perform all functions in a cost-effective manner. Our training programs, which we deliver to hundreds of lawyers yearly throughout B.C., emphasize not only cost-effective legal research skills but also skills that go to a broader concept of competency, such as using social media for gathering evidence in litigation. We use examples like Beattie u.Bcattie,, which show that a reasonable understanding of social media is no longer really elective but mandatory in areas of practice like family law. Social media evidence can be fundamen- tal to a case. Read Beattie, and you will not escape concluding that * conspicuous tweeting was the petitioner's great undoing in her attempt to secure further spousal support based on need; and * any counsel who could have missed the evidentiary feast of Twit- ter boasts about Lexus ISC convertibles, red carpet galas, spa week- ends and a knack for "killing pitchers of Raspberry Mojitos" would have serious self-doubt as to their own competency when con- fronted with this information after the fact. CLIMBING THE MOUNTAIN WHILE AVOIDING THE CLIFF We can promote competence with technology and acknowledge contradic- tions such as whether you use or avoid social media, it is at your peril. We stand on the brink of conceding that one cannot safely eschew technology and still run a litigation practice. But we see how a vigorous drive toward technological competency can also risk other ethical pitfalls.' It's under- standable how enthusiasm may be blunted by the inherently guarded nature of professional regulations. Once you decide to reach the altitude of "reasonable understanding" and join Facebook to scour for evidence damaging to another party's guardian- ship bid, what's to say you don't fall off some ethical cliff on the other side? Did you camouflage your purpose in your online investigations or breach a
- 3. THEADVOCATE term of service to inveigle your way into viewing private information? There is tension between tech-savvy competence -knowing what you can do and compliance with other ethical norms what you may do. In the context of fast-paced technological innovation, it's rarely the case that ethical and conpeteicyj norms are simultaneously apparent. E-mail was long in use before the Law Society of British Columbia's Ethics Committee finally opined in April 1998' that e-mail communication was not, in and of itself, a violation of the ethical duty of confidentiality under the old PjoJessional ConductIHandbook. Likewise, the use of third- party service providers for electronic data storage and processing of confi- dential client information, or "cloud computing", was commonplace for many practitioners before the due diligence guidelines of the Cloud Com- puting Working Group were issued over two years ago. As we devise another year oftraining programs for 2014, we look forward to offering guidance through training and other library resources to make your ascent to competence less perilous. Please visit our Sienam blog s for a January 2014 post on tips for using social media responsibly in litigation. ENDNOTES 1. Also called 'Web 2.0", the social web refers to the online manifestation of social relations through net- working services like Facebook, Twitter, Linkedin and other sites where user-generated content is key. 2. Chapter 3, Rule 1(c) of the former Professional Conduct Handbook. 3. 2013 SKQB 127. 4. Simon Chester, Doug Jasinski and Steve Matthews presented interesting materials on 'Ethically Grow- ing Your Practice with Social Media" at the 2013 Pacific Legal Technology Conference. They cover a range of ethical pitfalls relating to the social web. Materials are available for a fee through the Trial Lawyers Association of B.C. 5. 'Advice to the Profession Regarding Transmission of Confidential Information over the Internet", (1998) 3 Benchers Bulletin (June-July) at 8. 6. The Stream features practice-oriented posts from Courthouse Libraries B.C. staff and guest bloggers. See online: <http://www.courthouselibrary.ca/ training/stream.aspx>.