The legal landscape in the COVID-19 era | Gina Rhodes
Friday, April 17, 2020 @ 8:40 AM | By Gina Rhodes
Until now, the legal profession has largely operated as a face-to-face, paper business. Client meetings, internal meetings, cross-examinations, court appearances and alternative dispute resolution proceedings are typically conducted in person. Most law firms are packed with paper files. With limited exceptions, barristers must file paper copies of litigation documents with the court. Traditional mail and fax are both proper and common service methods under the Ontario Rules of Civil Procedure, and despite the immediacy of e-mails, it is only considered proper service in limited circumstances.
Surely the practice of law has evolved over the years with the advancement of technology. The use of e-mails, document management systems, cloud-management systems and e-discovery have made practising law more accessible and large caseloads and voluminous documents easier to manage.
Nevertheless, during this COVID-19 era, the legal landscape needs to immediately adapt to a full-fledged virtual system. As information pertaining to this virus is changing daily, and even hourly, lawyers need to find modern ways to keep their practice alive.
In the past month, law firms have adjusted fairly well to the rapid shift to a virtual law practice. They have relied upon cloud-based technology to try to maintain productivity in the safety of lawyers’ respective homes. Ontario courts have also quickly found ways to hold hearings virtually, and even accept e-mail submissions of motions, so cases are not put on hold indefinitely.
It is important to keep in mind that even though the practice may be adjusting, our ethical obligations to clients, colleagues and to the administration of justice remain the same. Maintaining client confidentiality and practising with competence is more important now than ever.
Ontario’s Rules of Professional Conduct are influenced in large part by the American Bar Association’s Model Rules of Professional Conduct. A notable distinction is that the ABA, and some respective states, have included a specific technology component to their ethics rules.
Specifically, Rule 1.1 of the ABA’s Model Rules of Professional Conduct states, “a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The comments to Rule 1.1 instruct lawyers that in order to maintain competence, they “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Ontario’s comparable Rule of Professional Conduct 3.1-2 states, “a lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.” The comments to Rule 3.1-2 do not have a comparable reference to technology per se, but does state, that a lawyer “should keep abreast of developments in all areas of law in which the lawyer practices.”
Arguably, and practically, Ontario’s comment implies keeping abreast of the developments, benefits and risks associated with technology, especially now that the entire practice has shifted to a virtual one. Even if lawyers were not employing technology before to maintain their practice, there is no choice now. With the use of technology, comes benefits and unfortunately risks that lawyers must be mindful of.
Within the last few weeks, videoconference platforms have quickly become the forefront of the legal profession. Personally, like many other lawyers, Zoom, Skype, Microsoft Teams and Google Meet were not platforms frequently used or even contemplated within the legal business prior to COVID-19. It has now proven largely useful to respect social distancing measures while preserving a sense of, albeit new, normalcy. Conducting face-to-face client meetings can be extremely effective to sustain open and valuable communication with the client.
However, with the influx of users on these virtual platforms naturally comes hackers. Zoom has been in the limelight recently for breaches of security and privacy. With hackers looming, analyzing our role as lawyers and how to protect ourselves and our duty to maintain client’s confidentiality is vital.
Though Zoom executives have informed the media they are taking immediate action to rectify these breaches, our responsibilities to clients cannot be placed in third parties’ hands.
The question becomes what lawyers can do during this time, and in the future, to keep their now virtual practice thriving, while continuing to comply with their ethical obligations. Lawyers now must rely on these third-party platforms and systems to continue their practice and there are some steps that can be taken.
Conducting due diligence on various third-party systems is critical. Everything has been shifting swiftly and lawyers are racing to modify their practice to keep up. However, it is essential that lawyers take the necessary time to research the systems they are using and terms and agreements they are acknowledging.
Analyzing these third-party platforms, similar to cloud software and document management systems, is key. If lawyers have not already done so, they should look at confidentiality provisions, security measures and retention and deletion policies of these third-party companies. Lawyers should never run into a situation where a document management system dissolves and results in a loss of preservation of clients’ data, or possibly worse, unfettered control over the data.
Similarly, lawyers should ensure to the best of their ability their information, as well as their clients’, is secure. Unfortunately, data breaches do happen and are sometimes unavoidable. This would not necessarily be a breach of a duty under the rules of professional conduct, but lawyers should conduct due diligence and be knowledgeable about the forum they are using. For instance, instead of sharing client data through chat boxes or sharing screens in these forums, if unsure about the security, take the extra step to send an encrypted e-mail with the relevant information.
The positive impact this unprecedented crisis can, and I believe will have on the legal profession is equally as important. The ability to practise remotely through the continued advancement of technology allows for more accessibility and efficiency. Rather than attempting to co-ordinate schedules with clients, opposing counsel, mediators, arbitrators, or even judges, virtual meetings and hearings may become the new normal. Videoconferences with clients can be a valuable, and sometimes quicker alternative to arranging an in-person meeting. Further, the shift to electronic filing of court documents in Ontario could also allow for simultaneous service of process to parties and/or their respective lawyers. This could reduce costs and resources expended on filing documents and separately effecting service.
During an extraordinary time, it can be helpful to look to the future. In thinking about a post-COVID-19 society, it is important to think about it in a way that is better than simply returning to the status quo. Lawyers can take this time to reflect on ways to improve the profession with the use of the technology available.
Becoming familiar with and using the developments in technology has the potential to alter the legal landscape to a more efficient and potentially even more environmentally friendly practice.
Gina P. Rhodes is an associate lawyer in the litigation group at Owens Wright LLP. She is licensed in both Ontario and Florida. Her practice focuses on corporate commercial litigation, real estate litigation and alternative dispute resolution.
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