January 2012 e-Bulletin

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Common Practice Management Issues: How to Avoid Risk in Your Practice

Using Technology

What are my ethical and professional responsibilities when using technology in my practice?

When using technology, lawyers and paralegals must still meet their professional obligations as outlined by the lawyers' Rules of Professional Conduct (lawyers' Rules) and the Paralegal Rules of Conduct (Paralegal Rules). These and other ethical obligations are outlined below.

1. Be Competent [rule 2.01 of the lawyers' Rules, rule 3.01 of the Paralegal Rules]
   Lawyers and paralegals should have a reasonable understanding of the technology used in the lawyer's or paralegal's practice, or access to someone who has such understanding.
2. Avoid Conflicts of Interest [rule 2.04 of the lawyers' Rules, rule 3.04 of the Paralegal Rules]
   When using technology to deliver legal services (i.e. via the Internet or e-mail) the lawyer or paralegal must take reasonable steps to confirm the identity of the parties involved to avoid both potential and actual conflicts of interest.
3. Maintain Confidentiality [rule 2.03 of the lawyers' Rules, rule 3.03 of the Paralegal Rules]
   A lawyer or paralegal using electronic means of communication (e.g. the Internet, cellular telephones and facsimile machines) must ensure that communications with or about a client reflect the same care and concern for matters of privilege and confidentiality normally expected when using any other form of communication.
4. Comply With Marketing Rules [rule 3.02 of the lawyers' Rules, rule 8.03 of the Paralegal Rules]
   The Rules set out the requirements regarding all marketing of legal services, including the use of various forms of electronic media (e.g. the Internet, e-mail, network bulletin boards).
5. Outline the Capacity in Which the Lawyer or Paralegal is Acting
   A lawyer or paralegal who communicates via electronic media (e.g. the Internet, e-mail, chat rooms, and discussion groups) should ensure that the capacity in which he or she is acting is made clear to anyone with whom he or she deals. In particular, the lawyer or paralegal should advise when he or she is or is not providing legal advice or services.
6. Uphold the Law of Other Jurisdictions
   An Ontario lawyer or paralegal who respectively practises law or provides legal services in another jurisdiction through the Internet should respect and uphold the law of the other jurisdiction, and shall not engage in the unauthorized practice of law or provision of legal services in that jurisdiction.

The Law Society has developed a series of NEW Technology Practice Tips to assist practitioners to meet these obligations. Presented in MP3 format, the podcasts offer lawyers and paralegals a convenient way to learn about technology, the issues that may arise from using technology in their practices and the basic security measures that should be taken when using technology.

• Backups
• Cloud Computing
• Encryption
• Passwords 
• Public Internet Access 
• Smartphone Security 
• Social Media 
• Web Site Tips 

Download and listen to all eight podcasts to learn how to protect your data and your practice.

See also:

• Managing the Security and Privacy of Electronic Data in a Law Office, practicePRO
• Managing Business Interruptions and Disaster Planning, practicePRO
• FAQs – Knowledge Tree Technology: Using Technology in Your Practice  
• FAQs – Knowledge Tree Technology: Security and Confidentiality of Electronic Data and Communications
• Data Encryption - Slip Sliding Away (PDF), by David Whelan
• Clause 2.01(1)(d); Subrule 2.01(2); and Rule 2.03, Rules of Professional Conduct
• Law Society Act, s. 41
• If You Want To Protect Your Privacy, Secure Your Gmail (PDF)
• Guidelines for Practising Ethically With New Information Technologies (PDF)
• Commonly Used Software and Other Online Legal Practice Resources (PDF)
• Top Ten Technology Tools (PDF), practicePRO
• Technology Articles, practicePRO

My PDA/PIM/Smartphone/laptop was stolen. It contained information pertaining to clients and client matters. What should I do?
Rule 2.03 of the lawyers' Rules of Professional Conduct and rule 3.03 of the Paralegal Rules of Conduct set out the obligation to keep client information confidential. Any PDA, PIM, Smartphone, or laptop should at a minimum be password-protected. Some devices have software available that can be installed so that the lost device can be "wiped" remotely to erase any confidential information. If a device containing client information is lost or stolen, and that information has not been protected (or is easily accessible by third parties), then the lawyer or paralegal must inform each client involved and recommend that the client obtain independent legal advice concerning any rights that may arise from this actual or potential breach of confidentiality. [subrule 6.09(1) of the lawyers' Rules of Professional Conduct, subrule 3.02(12) of the Paralegal Rules of Conduct].

See also: 

• NEW Technology Practice Tips – download and listen to all eight podcasts to learn about how to protect your data and your practice
• LawPRO's article Managing the Security and Privacy of Electronic Data
• FAQs - The Knowledge Tree Technology: Using Technology in Your Practice  
• FAQs - The Knowledge Tree Technology: Security and Confidentiality of Electronic Data and Communications

 

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