Technological Competence 101: Back to Basics?

• Author: Amy Salyzyn
• Date: January 29, 2015

Much electronic ink has been spilled in the pages of Slaw over the need for lawyers to up their game when it comes to using technology. In a previous column, I argued that “while technological competence might once have been properly seen as a helpful but optional skill set,….[it] is now essential to delivering effective and ethical legal services”, but then hedged, “[e]xactly what type of technological competence a lawyer needs to have has been debated and, presumably, will constantly evolve as technology itself evolves.” Both of these observations seem unavoidably true. The problem is, however, they only take us so far.

Left underexplored is a key question: what do we mean on a conceptual level when we talk about an ethical duty of technological competence? Slaw contributors have provided helpful guidance on what technological competence might mean in a practical sense. For instance, Mitch Kowalski and Omar Ha-Redeye have explored minimum tech standards for lawyers and emphasized, among other things, the importance of basic competence with word processing software and the need to use appropriate password protection. Dan Pinnington has highlighted various technological risks that lawyers face (like cyber-extortion and phishing scams). David Whelan and David Bilinsky have kept us apprised of developments cloud computing and the use of encryption technology (among many other things!). It is clear that lots of people are thinking practically about how lawyers should use technology. But how does this practical guidance relate to the way we might conceive of an ethical duty to use technology competently? How should lawyer regulators understand what they are regulating when they regulate lawyer technological competence?

Extrapolating from the topics discussed above, we might posit that an ethical duty to use technology competently requires: (1) the incorporation of certain technologies in a law practice to ensure effective and efficient client service, and (2) awareness of and safeguarding against external technological threats. These two requirements seem reasonable and, indeed, are consistent with existing ethical duties regarding quality of service and confidentiality.

Simple enough? Maybe not. As with many things lawyerly, added complexity is not hard to summon up. One thing complicating matters is the fact that different kinds of legal practice will require different technological solutions. A recent survey of the 30 largest Canada-based law firms...