Code of Conduct Changes

February 27, 2020

A new version of the Code of Conduct is available following the February 2020 Board meeting. Changes to the commentary were approved following Rule 3.1-2 of the Code of Conduct, confirming lawyers’ obligations to maintain technological competence. The amendment mirrors the language adopted in the Federation of Law Societies’ Model Code in October 2019.

The amendments are found in new paragraphs 5 and 6 of commentary following Rule 3.1-2. Lawyers should understand the technology they use in their practices and should understand its risks and benefits. The amendment does not require lawyers to purchase the latest and most expensive technological solutions. They need to know how to effectively use the technology they or their clients actually use. When considering technological solutions in practice, firms and organizations may consider the price and availability of the technology, their practice areas, their clients’ requirements and their location.

The duty to be technologically competent is not ‘one size fits all’ and is defined by the context of the lawyer’s practice circumstances. The ability to obtain and support any technological solution is often affected by the price of purchasing and supporting it, and a firm may also need to consider whether the technology will create efficiencies for the firm or for clients. In the case of more complex technological solutions, competence may be achieved by engaging with a knowledgeable staff member or consultant. The lawyer then has an obligation to supervise, to ensure the employee or consultant understands and maintains the same ethical standards and responsibilities with which the lawyer must comply.

The duty of technological competence is related to functions such as:

  • conducting legal research;
  • communicating with clients;
  • maintaining the continuity of a practice in the face of interruptions; and
  • maintaining privilege and confidentiality.

Protection of confidentiality is the legal profession’s most basic obligation, and must always be top of mind. Other related ethical issues include the obligation to charge fair and reasonable fees. To the extent that artificial intelligence or computer-based research or practice management tools can keep client costs down, lawyers should be aware of their benefits.