SOLE, SMALL FIRM AND GENERAL PRACTICE

Hot Topics for Sole and Small Firms

Date: Thursday, February 5, 2015 | 7:45 am to 8:45 am

Westin Harbour Castle Conference Centre

2 Harbour Square | Toronto, ON

Confidentiality (Rule 3.3)

• “strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship...” [Emphasis added].

• Rule 3.3-1(a): disclosure may occur with the express or implied consent of the client

How is this Duty to Clients Met?

• Educating yourself about the real risks of cloud computing

• Informing your client of your use of technology• Put it in the retainer agreement

• Make reasonable inquiries of your cloud services provider• What is reasonable?

Should Lawyers Use Electronic Document Systems?• LSUC’s “Technology Practice Management

Guideline” (amended October 2014)• 5.3.2 Lawyers should consider Electronic Document

Management Systems or Services• 5.11 Lawyers should have back-up and disaster recovery

plans for information technologies[emphasis added]

• Question: Does it matter where these files are backed up (jurisdictionally)? Should this play a role in the document management system you consider?

PATRIOT Act Fears

• erroneous to assume that powers are more extensive or far-sweeping than other jurisdictions• Study of laws of Australia, Canada, Denmark, France,

Germany, Ireland, Japan, Spain, United Kingdom illustrate they all have similar powers

• companies that conduct business inside U.S. can still be compelled to provide information hosted off-shore

• concerns probably overblown

Technology Practice Tips: Cloud Computing (Transcript)• Phil Brown: …So, the first question, I guess, would be

what is cloud computing? …And would that include e-mail and other things like that?

• David Whelan: Absolutely. And I think people probably don't realise that they're using the cloud already when they are using Google Mail or they're using Hotmail. But that really is the same sort of thing, where before they might have had the e-mail system on their computer and the e-mail would download, now they access it through a web browser.

• Available at: http://www.lsuc.on.ca/For-Paralegals/Manage-Your-Practice/Confidentiality/Technology-Practice-Tips---Cloud-Computing-(Transcript)/

Google Data Centers

•Are you really going to suggest that Gmail or Hotmail is a

violation of the Rules?

Explanations of Rule 3.3

• Commentary 9 to this Rule:• lawyers are required to continue “to take reasonable

care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.” • Duty is ongoing, so lawyers should continue to educate

themselves

• some inferred disclosures to independent third-parties “whose services are used by the lawyer,” but only “to the extent necessary.”• What is “necessary?”

• Is it necessary to be competent/effective

Rule 3.1-1 (Competence)

• Rule 3.1-1 (d),(e): competence includes communicating and performing in a timely and effective manner

• Comment 12: effective communications tied to conscientiousness, diligence, and efficiency.

• Quality legal service under Rule 3.2-1 is also tied to timely communications with clients

Rule 3.1-1 (Competence)

• Competence is further defined under Rule 3.1-1(i) to include managing an office effectively.

• competence can and will change over time• Rule 3.1-1(k) “adapting to changing professional

requirements, standards, techniques, and practices.” • Comment 15: perfection is not in fact required, but

rather a degree of reasonableness

• Rule 3.1-1(j): obtain the appropriate training and professional development required to build on their skills• Including how a lawyer’s records are managed

Could Cloud Computing be Authorized Already in Ontario?

• New Rules of Civil Procedure, Jan. 1, 2015• R 16.01 (4) (b)(iii) use of an electronic document

exchange

• R 16.09 (4.1) Service of document proved by electronic document exchange (replaces Affidavit of Service)

• CourtsideEDX is currently the only provider

Psssst… that’s the cloud!!!

Is Cloud Computing Required for Competence?

• If cloud computing makes you a better lawyer, are you not required to adopt it (or at least make reasonable inquiries)

Tools for the Reasonable and Diligent Practitioner• Law Society of British Columbia cloud computing

checklist (2012)• Large cloud-based legal software companies already

operating in Canada should be in compliance with this list• Confirmation, for example, from Clio (founded in Canada)

• Lawfactory PRO (stored in Canada) – except safe harbour

• LawPRO’s new cybercrimes coverage• $250,000 limited coverage

The Real Risk with Cloud Computing…• …probably has nothing to do with the cloud at all.

• new Rule 48.14 (Dismissal of an Action for Delay)• automatic dismissals will occur without notice to the

parties or their lawyers

Conclusions

• Adoption of e-service may implicitly approve use of cloud services, at least for court documents

• Unjustified concern over client confidentiality could stifle innovation, customer service, and even professional competence

• Reasonable due diligence over cloud tools can be conducted with existing resources