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| Connie Braun |
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| Juliana Saxberg |
The lack of clear compliance legislation may explain why lawyers have yet to widely adopt AI-powered legal technologies, despite clearly seeing the potential uses and efficiencies. Perhaps a bigger barrier to AI adoption for lawyers is ethical and legal risk. According to a 2023 LexisNexis survey, the majority of participants in the legal market and law students are concerned about ethical issues that may increase from using generative AI — and Canadian legal insurers have wasted no time in cataloguing the ways lawyers use AI tools can put us offside the law society.
In spite of this discomfort, there is no longer any doubt that, in 2024, Canadian lawyers need technological literacy to meet both professional and ethical duties. Five years ago, the Federation of Law Societies of Canada amended the Interactive Model Code of Professional Conduct to include technological literacy in the definition of professional competence. Section 3.1-2 of the Model Code, which declares that a lawyer must provide legal services “to the standard of a competent lawyer,” includes the following commentary:
[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[.]
Since the model code was amended in 2019, the duty of technological competence has been formally adopted by legal profession regulators in almost every Canadian province and territory. The level of technical expertise demanded by this duty depends on “the nature and area of the lawyer’s practice and responsibilities” and other factors, such as “[t]he requirements of clients.” (n.b.: In October 2023 the British Columbia Law Society issued a Guidance on Professional Responsibility and Generative AI document that says, “If your legal services will include using generative AI to perform tasks, then you will need to be knowledgeable in the application of the technology.”)
Does the obligation to provide efficient legal services demand that Canadian lawyers at least consider use AI in legal practice? In Artificial Intelligence and the Law in Canada, the authors observe that ethical requirements to provide efficient legal services and not charge unreasonable fees may mean that “failure to use AI may not only expose a lawyer to regulatory attention from the law society but also open the lawyer up to a civil claim in negligence by a client.” This becomes ever more important as AI-powered legal practice tools become affordable and accessible to Canadian lawyers. The Law Society of Ontario’s Technology Guideline says that “[l]awyers 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.” And, in a costs decision dealing with disbursing legal research subscription costs, Ontario Superior Court Justice Paul Perrell declared in Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 5350, at para. 10:
The reality is 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. Properly done, computer assisted legal research provides a more comprehensive and more accurate answer to a legal question in shorter time than the conventional research methodologies, which, however, also remain useful and valuable.
Indeed, technology developments now available in the practice of law are particularly conspicuous in our practices today, a situation that practically mandates the use of AI tools, especially as it relates to managing evidence. In its most recent revision, the Sedona Canada Principles, an electronic evidence guide is now incorporated into the rules of civil procedure in most Canadian jurisdictions. These principles encourage Canadian lawyers to use AI-driven technologies, citing a 2018 Competition Tribunal decision (2018 CACT 17) that recommended “the use of modern tools to assist in these document-heavy cases where they are as or more effective and efficient than the usual method of document collection review.
It is not surprising that Canadian lawyers are expected to not only know their way around a chatbot but to also be prepared to ask — and answer — technical compliance questions about the adoption of AI tools. The Law Society of Ontario’s Technology Guideline also says that “[l]awyers must have knowledge of relevant legal or regulatory provisions governing or relating to information technologies.” In other words, leaving the job of AI risk governance to compliance or to legislators is not an option. In the words of Suffolk Law Dean Andy Perlman, the entrenchment of a legal professional obligation regarding technological competence “captures an important shift in thinking about competent twenty-first-century lawyering”: skillfully using emerging technologies is becoming the expected norm, not the exception, for competent modern lawyers.
Connie L. Braun is a product adoption and learning consultant with LexisNexis Canada. Juliana Saxberg is a practice area consultant in corporate and public markets with LexisNexis Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is neither intended to be nor should be taken as legal advice.
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