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Knowledge of technology requirement in Federation of Law Societies’ Model Code of Conduct | Ken Chasse

Wednesday, July 17, 2019 @ 10:34 AM | By Ken Chasse


Ken Chasse %>
Ken Chasse
What follows is a message I recently sent to:

(1) the Federation of Law Societies of Canada (FLSC) in regard to its Model Code of Professional Conduct — request for feedback in regard to “technological competence” requirements;

(2) the Canadian Forum on Civil Justice;

(3) the Access to Justice Research Network; and,

(4) Access to Justice B.C.

Re: Access to Justice and the FLSC’s Model Code of Professional Conduct.

Knowledge of the technology that produces very frequently used kinds of evidence so as to be able to:

(1) adduce evidence with an adequate foundation that establishes, “circumstantial guarantees of reliability” for that evidence;

(2) conduct competent cross-examinations as to the ability of such technology to produce reliable evidence; and,

(3) present arguments as to how the rules of evidence and procedure should be applied flexibly so as to: (a) be compatible with the nature of the technology that produces the evidence; and, (b) with, “doing justice” and “the rule of law,” and “access to justice,” as required by the Canadian Charter of Rights and Freedoms.

This is the most important type of knowledge of technology that lawyers should have; i.e., being able to challenge the ability of electronic systems and devices to produce reliable evidence. Most of the evidence used in legal proceedings, and for legal services, now comes from such sources — complex electronic systems and devices.

For example, the most frequently used kind of evidence now is records, almost all of which come from large, complex electronic records management systems. Such systems are a complex technology. But lawyers don’t know how to challenge their performance even though bad records management and its faulty software are very common.

Similarly, devices such as mobile phones also use a complex technology. Because we all carry mobile phones, they produce frequently used evidence of voice and text messages, and the identifying data produced by such communications can be used to develop location evidence known as, “mobile phone tracking evidence.”

And civil litigation requiring many thousands of records to be reviewed to find the relevant ones and those records potentially subject to a claim of “privilege” have become dependent upon electronic technology assisted review (TAR) devices to conduct that “reading and review” process so as to do it within the financial ability of clients and their willingness to pay for it. The reliability of such devices can determine the results produced in electronic discovery and trial proceedings.

In addition, most expert opinion evidence is based upon data, the reliability of which is dependent upon the electronic systems and devices that produce it. There are other such examples. And software’s rapid development will produce many more such electronic systems and devices that will produce frequently used kinds of evidence.

Knowledge of such technology will be a rapidly moving and changing target that law school evidence courses and continuing professional development seminars and conferences will not be sufficient to satisfy. The technical literature warns that we trust the software by which they operate far too much. That’s a lot of technical information to keep up with. Legal research specialists are needed.

And, because legal services also depend upon such sources of evidence and information, such knowledge is also necessary for the competent production of legal services.

But such necessary knowledge may frequently require counsel to be advised by experts having the required knowledge of such technology. That raises an “access to justice” problem because many litigants and clients cannot afford that. But there is a solution that law societies could provide.
 
I will be discussing these issues in future articles.
 
For 40 years, starting in 1966, Ken Chasse was a criminal lawyer in Ontario and B.C., serving as both Crown prosecutor and defence counsel. He taught law in both provinces and conducted a national consultation process for the federal Department of Justice concerning a proposal to replace the Canada Evidence Act with an evidence code that was a Canadian version of the U.S. Federal Rules of Evidence. Since January 2007, he has concentrated on developing “records management law” and among Chasse’s most important accomplishments was the creation of LAO LAW at Legal Aid Ontario. E-mail him at kchasse@fixy.org.

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