Digital Competency of Counsel


Digital Competency of Counsel

The document governing our professional responsibilities as lawyers is the Code of Professional Conduct for British Columbia. Rule 3.1-2 of the Code states: “A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.” A “competent lawyer” is defined, in part, as “…a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter….” Such competency includes not only knowing general legal principles and procedures, and the substantive law and procedure for the lawyer’s area of practice, but also the application of appropriate skills.

Such skills may include researching, analyzing, writing and drafting, negotiating, advocating, and problem solving, to name a few. Practising as a competent lawyer also includes investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing and advising the client on appropriate courses of action. Further, our Code directs that we must recognize “…limitations in one’s ability to handle a matter or some aspect of it and [take] steps accordingly to ensure the client is appropriately served.” To practice competently, a lawyer must pursue “…appropriate professional development to maintain and enhance legal knowledge and skills” and adapt “…to changing professional requirements, standards, techniques and practices.”

“Digital Transformation” is a timely theme for BarTalk. We have experienced innovation in our profession at an unprecedented rate as a result of COVID-19. While digital solutions can improve access to justice and support the effective administration of justice, as counsel we have a duty to ensure we are competent to use the technology.

Our courts are using Microsoft Teams (Provincial and Supreme Court) and Zoom (Court of Appeal) for certain remote judicial conferences and hearings. These platforms can be accessed by a desktop computer, laptop, tablet, or smartphone. Alternatively, a participant can dial in by telephone. Participants need not be in the same location to connect to the conference. For example, the judge, lawyers, and litigants may all be in separate, remote locations across the province. If during the proceeding a lawyer needs to consult with their client, or with opposing counsel, they can mute their microphones, turn off their cameras, and speak privately by telephone. Alternatively, they can request a break or, if the breakout room function is available, they can be placed into a virtual breakout room to have the discussion in private before returning to the main hearing. Digital platforms are also being used by lawyers, court reporters, alternative dispute resolution practitioners, and administrative tribunals for meetings, interviews, examinations for discovery, mediations, and hearings. In short, justice system stakeholders are working tirelessly to replicate the best of the in-person court experience in a virtual setting.

While these digital solutions are moving our profession into the 21st Century, the transformation is not without concern. Is information secure over these platforms? Arguably, yes. What if participants record the proceedings surreptitiously? This can also be done in a courtroom and the BC Courts’ Policy on the Use of Electronic Devices sets out the policy and penalties that may be imposed for violations. How can we ensure participants are not being coached or threatened by others in the room with them, or are not referring to documents or notes before them in ways that would not otherwise be permitted? Any sign of inappropriate conduct should be addressed by counsel and can be raised with a judge. How is access facilitated for people without the necessary technology? The courts will continue to conduct in-person proceedings complying with COVID-19 restrictions if a remote proceeding is not suitable. How will the open court principle be maintained? Provisions have been made for public and media access to the courts during the pandemic, whether remote or in-person. What if counsel do not have the necessary skills or technology to accommodate remote proceedings? We have a responsibility to be competent lawyers and, arguably, the cost of updating our skills and technology is the cost of doing business.

Fear not. The CBABC can assist you and our COVID-19 Resource Hub is a great place to start.