The Guideline is not intended to replace a lawyer's professional judgment or to establish a one-size-fits-all approach to the practice of law. Subject to Guideline provisions that incorporate legal, By-Law or Rules of Professional Conduct requirements, a decision not to follow the Guideline will not, in and of itself, indicate that a member has failed to provide quality service. Conversely, use of the Guideline may not ensure that a lawyer has delivered quality service. Whether a lawyer has provided quality service will depend upon the circumstances of each case.
Table of Contents
5.1 Introduction
Technology has rapidly altered the manner in which legal knowledge is gathered and distributed and has increased the speed with which information is exchanged.( 1 ) Lawyers must determine when the use of information technologies is necessary for the maintenance and enhancement of their practices.
The Technology Guideline outlines the circumstances in which the use of information technology is mandatory, as in the case of electronic registration. It also outlines the circumstances when information technologies are recommended. The Guideline invites the practitioner to consider the use of technologies to support client service expectations and practice management and reminds lawyers to address concerns respecting security, disaster management and technological obsolescence.
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5.2 Mandatory Use of Technology
These Guidelines incorporate sections of The Law Society of Upper Canada Ethical Considerations and Technology (PDF) ( 2 ) which were provided for information only to Convocation in March 2001.
Lawyers should ensure that they comply with any mandatory requirements relating to the use of information technologies in their law practices, including but not limited to
- electronic registration of real property
- mandatory electronic filing requirements or processes of courts or other tribunals
Lawyers should have knowledge of relevant legal or regulatory provisions governing or relating to information technologies. In particular, and if relevant to a lawyer's area of practice, lawyers should familiarize themselves with statutory or other provisions relating to the legal status of electronic documents or electronic signatures.
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5.3 Systems to Support Client Service
Lawyers should consider the use of information technologies to enable them to perform all client service functions conscientiously, diligently, and in a timely and cost-effective manner. [Rule 2.01(1)(e) and Rule 2.01(2) of the Rules of Professional Conduct]
Lawyers may wish to consider the use of the following information technologies:
5.3.1 Electronic Legal Research Methods
Lawyers should consider whether their legal research skills include and make use of [Rule 2.01(1)(c)(i) of the Rules of Professional Conduct]
- on-line legal research facilities such as CanLII or Quicklaw
- Internet based legal research
- CD ROM databases.
5.3.2 Electronic Document Management Systems or Services
Lawyers should consider the use of electronic document management systems such as
- case management or litigation support software for litigation matters
- document assembly software to create legal forms and documents.
5.3.3 Analysis Support Software
Lawyers should consider the use of information technologies that support their analytical skills and functions including spreadsheet software and on-screen calculators. [Rule 2.01(1) (c)(ii) of the Rules of Professional Conduct]
5.3.4 Word Processing
Lawyers should consider the use of electronic word processing or voice recognition software to ensure that writing and drafting is accomplished in a timely and cost-effective manner. [Rule 2.01(1)(e) and Rule 2.01(2) of the Rules of Professional Conduct]
5.3.5 Communications Technologies
Lawyers should consider the use of information technologies to communicate with the client in a timely and effective manner appropriate to the abilities and expectations of the client. Lawyers may consider the use of all or some of the following systems [Rule 2.01(1)(d) and2.01(2) of the Rules of Professional Conduct]
- voice mail
- e-mail over the internet
- facsimile transmission
- video or telephone conferencing.
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5.4 Systems to Support Practice Management
Lawyers should consider the use of the following information technologies to assist in complying with the Rules of Professional Conduct and By-Laws made pursuant to the Law Society Act [Rule 2.01(1)(g) and Rule 2.01(2) of the Rules of Professional Conduct]:
5.4.1 Database Management Systems
Lawyers should consider using database management software systems for
5.4.2 Calendaring and Scheduling Systems
Lawyers should consider the use of calendaring and scheduling technologies to
5.4.3 Legal Accounting and Time Billing Systems
Lawyers should consider using electronic accounting and billing systems to assist in complying with record keeping and accounting requirements. [By-Law 9and Rule 2.08 of the Rules of Professional Conduct]
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5.5 Competent Use of Information Technologies
Lawyers should have a reasonable understanding of the technologies used in their practice or should have access to someone who has such understanding.
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5.6 Delivery of Legal Services Through the Internet
5.6.1 Uphold Law of Other Jurisdiction
Ontario lawyers practising law in other jurisdictions through the provision of legal services on the Internet should
- respect and uphold the law of the other jurisdiction
- not engage in the unauthorized practice of law.
5.6.2 Conflicts of Interest
To avoid conflicts of interest when delivering legal services through the Internet or e-mail, lawyers should take reasonable steps to determine the actual identity of the parties with whom the lawyer is dealing.
5.6.3 Capacity in Which Lawyer is Acting
A lawyer who communicates with others in chat rooms, discussion groups or through electronic media shall ensure that the capacity in which the lawyer is acting is made as clear as possible to anyone with whom the lawyer deals.
In particular, a lawyer should advise when he or she is or is not providing legal advice or services.
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5.7 Confidentiality
Lawyers using electronic means of communications shall ensure that they comply with the legal requirements of confidentiality or privilege. [Rule 2.03 of the Rules of Professional Conduct]
When using electronic means to communicate in confidence with clients or to transmit confidential messages regarding a client, a lawyer should
- develop and maintain an awareness of how to minimize the risks of disclosure, discovery or interception of such communications
- use reasonably appropriate technical means to minimize such risks
- when the information is extraordinarily sensitive, use and advise clients to use encryption software to assist in maintaining solicitor and client communications
- develop and maintain law office management practices that offer reasonable protection against inadvertent discovery or disclosure of electronically transmitted confidential messages.
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5.8 Marketing and Making Legal Services Available
5.8.1 Rules of Professional Conduct Apply
Advertising by lawyers in various forms of electronic media, including web sites, network bulletin boards, and direct e-mail, are governed by the Rules of Professional Conduct, Rule 3.01 Making Legal Services Available, Rule 3.02 Marketing, andRule 3.03 Advertising Nature of Practice.
5.8.2 Identification of Lawyer in Electronic Media
Lawyers making representations in generally accessible electronic media should include the name, law firm mailing address, licensed jurisdiction of practice, and e-mail address of at least one lawyer responsible for the communication.
5.8.3 Multi-Jurisdictional Advertising
Where a lawyer is entitled to practice in more than one jurisdiction, and these jurisdictions are identified in representations on electronic media, the lawyer shall ensure that the advertisement complies with the rules governing legal advertising in each of those jurisdictions.
5.8.4 Restrictions on Distribution
Lawyers may offer their services to potential clients subject to certain restrictions on contacting potential clients who, for example, are recovering or are vulnerable as a result of a traumatic experience. [Rule 3.01(2) of the Rules of Professional Conduct]
Interactions with the public that are not compatible with the public interest, the best interests of the profession or the administration of justice, include
- advertisement of professional services using electronic media where the advertisement is directly and indiscriminately distributed to a substantial number of newsgroups or electronic mail addresses
- posting of electronic messages to newsgroups, listservs or bulletin boards where the topic of the posting does not represent what is being advertised in the body of the posting.
5.8.5 Controlling Misuse of Electronic Communications
Lawyers should consider implementing and enforcing firm policies for the acceptable use of electronic communications to ensure that discriminatory content is not disseminated. Policies may include
- restrictions against downloading, viewing, or circulating within the office or to outside recipients electronic material of a discriminatory nature
- mandatory deletion of such material if received in an unsolicited manner from third parties.
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5.9 Preventing Software Piracy
Lawyers should guard against intentional or accidental software piracy. Lawyers, not office personnel exclusively, have the ultimate responsibility for the management and organization of, and compliance with, license agreements for all software used by a firm.
Lawyers should guard against accidental software piracy by carefully reviewing the provisions of software licensing agreements used in their practice.
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5.10 Security Measures
Lawyers should be familiar with the security risks inherent in any of the information technologies used in their practices including
- unauthorized copying of electronic data
- computer viruses which may destroy electronic information and hardware
- hackers gaining access to lawyers' electronic files
- power failures and electronic storms resulting in damage to hardware or electronic information
- theft of vast amounts of electronic information stored in stolen hardware.
Lawyers should adopt adequate measures to protect against security threats and, if necessary, to replace hardware and reconstruct electronic information.
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5.11 Back-up and Disaster Management
Lawyers should have back-up and disaster recovery plans for information technologies. Lawyers may consider implementing some or all of the following policies and procedures
- performing regular back-up of data
- storing back-up disks or tapes in a secure off-site location
- performing routine checks to ensure data can be restored
- having insurance in place to cover the costs of recovering lost hardware or electronic information.
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5.12 Obsolescence
Lawyers should ensure that information in electronic form will be accessible in the future. Lawyers should consider whether crucial information should be stored in paper or electronic form.
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Resources
Additional Resources (PDF)
By-Law 11, Regulation of Conduct, Capacity and Professional Competence
CanLII
Guidelines for Practising Ethically With New Information Technologies (PDF)
Law Society Act, s. 41
Legal Software and Other Resources for your Practice (PDF)
Managing Practice Interruptions (PDF), Practice PRO
Managing the Security and Privacy of Electronic Data in a Law Office, Practice PRO
Rules of Professional Conduct, Rule 2.01
Technology Resources, Practice PRO
Top Ten Technology Tools (PDF), Practice PRO
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Endnotes
( 1 ) Barker, "The Effective Use of Technology in the Practice of Law", Canada Law Book Inc., 1998. Eisen, "Technology in Practice Second Edition", Thomson Professional Publishing Canada, 1991.
( 2 ) These Guidelines were adapted for Ontario from the Ethical Considerations and Technology (PDF) developed by the Law Society of Alberta and disseminated by the Federation of Law Societies of Canada. The Law Society of Upper Canada gratefully acknowledges their work in formulating these Guidelines.
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