Jake and Simon explore legal innovation. Why are legal services so expensive? How can they be cheaper? Is there a better way? Check out the podcast at one of the links below!
https://podcasts.apple.com/ca/podcast/a-bit-of-everything-podcast/id1498287414#episodeGuid=abitofeverything.podbean.com%2Fc85749af-3def-3b90-a65a-0685d6a28b9d
COVID-19 has forced us to re-evaluate how we interact at school, work, and even at home. Now more than ever, technological competency is essential for living our daily lives. In light of these changes, it is time that the Law Society of BC adds technological requirements to the Code of Professional Conduct.
Amy Salyzyn’s article It’s Finally (Sort Of) Here!: A Duty of Technological Competence for Canadian Lawyers outlined the pre-COVID addition to the Federation of Law Societies of Canada Model Code of Professional Conduct, which now includes a requirement for a level of technological competency. The Law Society of BC has yet to address a technological competency requirement.
According to current practice standards of the Law Society of BC, a lawyer must acquire and maintain adequate:
Some clients will never be available through Zoom; some may not own a cell phone. But that makes it even more critical for their lawyer to have the technological skills to represent them, especially with the move towards virtual court. It is up to lawyers to help them to the best of their abilities. The pandemic has brought about a host of new legal issues, like access to justice and privacy. Legal professionals should have the technological skills to respond and adapt to an uncertain future. The Law Society of BC should be encouraging this long-overdue growth.
The COVID-19 pandemic has changed the environment of work for everyone. As lawyers and law students, we are now working from home or remote offices more than ever before. These changes are expected to have a lasting effect on what legal work looks like and to remain in place even when pandemic measures end.
The freedoms associated with innovations in technology and work-from-home options have been promoted as ideal for working women, and specifically working mothers, to manage the double labour of domestic and outside-of-the-home work. Technology advancements and inventions have long been marketed as a way to “liberate” women of their wifely and motherly duties. Scholars still point out the correlation between mass use of household appliances like the dishwasher and the increase of women working in the public sphere as evidence of how technology improved the lives of women.[1]
Similarly, work-from-home, job sharing, or other flexible work schedule options have historically and typically been offered to women and mothers more often than men and fathers. See, for example, the facts in the recent Supreme Court of Canada decision in Fraser v Canada[2] where nearly all those who participated in the job-sharing program with the RCMP were women and most limited their work schedules due to child-care responsibilities. Some professionals speculated that the widespread use of remote work in COVID may benefit women in law by normalizing remote work and adjusting expectations in a way that may level the playing field for women.[3] I am not as optimistic such changes on their own improve anything substantial for women in law.
Changes to how legal work is delivered or where it is conducted alone does not change broken dynamics of labour. Just as the invention of the dishwasher did nothing to challenge the notion of dish-washing being primarily the responsibility of women, the option to work from home does nothing to challenge the assumption that women in heteronormative partnerships will be the primary care-givers and carry the weight of domestic responsibilities – responsibilities that are exasperated during a pandemic.All it took was talking to one mother whose work-life moved home during this pandemic to understand that any delicate handle they had when it came to balancing their first and second shifts was entirely disrupted. Working from home does not mean mothers have more balance. Studies from the United States showed that in the first months of the pandemic, mothers’ work suffered while fathers’ time paid and work hours were relatively unchanged. This was the case even in dual-income households where both parents were able to work from home. Mothers working from home with preschool-aged children lost about 2.6 hours in their workday, but fathers’ work time remained unchanged.[4]
In different industries across the country, the remote work environment that COVID-19 brought does not translate to a more inclusive or equitable workforce. We are only beginning to see the lasting impacts of COVID-19 on the workforce but data so far is overwhelming indicating that work-from-home alone does not change the course of women’s careers. We continue to see women disproportionately losing jobs, quitting jobs or turning down promotions to focus on their families. A study by the Prosperity Project showed that one third of Canadian women have considered quitting their jobs to take care of home responsibilities during the COVID-19 pandemic.[5] This is of particularly concern for women in the legal field where women were already leaving the field at a rate much higher than men prior to COVID-19 and leadership roles in law firms are far from reaching gender parity. The number one cause for women’s income disparity and desertion of practice is child / family commitments.
The legal professions seems more resistant to social changes and pressures than most other occupations. The legal profession still values presenteeism and endorses unhealthy work-life balance as a badge of honour. The family values women cited as reason for stepping away from career during COVID-19 is consistent with the decisions lawyers make to take parental leave. It is much more likely that women in the legal field, when they become parents, will take parental leave. Men in the legal profession take advantage of parental leave at a much lower rate. Law practice is still a remaining stronghold of white-collar masculinity.
This is relevant because shared parenting is critical to gender parity. Stereotypical ‘masculine values’ do not necessarily reflect the values of men and the results of the profession upholding those values means that the field does not necessarily reflect the wishes of men today. We see more men in Gen Y and Gen Z taking a very active role in fatherhood. However, the existing arrangement for people who work in law firms is one in which when women lawyers take parental leave, they secure men’s superior position at the firm and within the profession. However, just like women are socially coerced into their roles, if men desire to take their parental leave, they are discouraged from doing so by such harmful standards of masculinity in the profession. As demonstrated by the studies mentioned, breaking this cycle is not as easy as providing work-from-home opportunities.
Women lawyers working at home will still eat lunch their desk to get make sure our billables are up, but now we get to make that lunch in our own kitchen (and make our kids’ lunch, and feed the kids, and clean up ect, etc). This is not the equitable and hospitable work environment I hope remains even after the pandemic. This is not innovation.
Innovation is often described as doing something in a new way – making a change through new methods and ideas. The COVID 19 work measures changed the way work life looks without changing anything about the social inequities or “norms” that made our conventional understanding of work possible – such as law being a “two-person career”. The methods are new but the ideas are old. In order to achieve equality in the profession, the profession must retain women in greater numbers. Doing so will require real innovation and will require legal leaders to actively confront social “norms” and provide creative, alternative ideas for how to support women and parents in the profession.
Larissa Donovan
Sources:
[1] University of Montreal, “Fridges And Washing Machines Liberated Women, Study Suggests.” ScienceDaily, 13 March 2009. <www.sciencedaily.com/releases/2009/03/090312150735.htm>.
[2] Fraser v Canada (Attorney General), 2020 SCC 28 <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18510/index.do>.
[3] Jessica Woodhouse, “Working From Home An Opportunity for Improving Gender Equality” New York Law Journal, 1 September 2020 <https://www.law.com/newyorklawjournal/2020/09/01/working-from-home-an-opportunity-for-improving-gender-equality/?slreturn=20201008181039>
[4] Caitlin Collins, Leah Ruppaner, William Scarborough, “COVID-19 is a disaster for mothers’ employment. And no, working from home is not the solution” The Conversation, 20 July, 2020 <https://theconversation.com/covid-19-is-a-disaster-for-mothers-employment-and-no-working-from-home-is-not-the-solution-142650>.
[5] The Prosperity Project, <https://canadianprosperityproject.ca>.
Irene Chan
Ever since I was allowed to touch my mother’s computer (at the tender age of 7), I have been sucked into the world of security. Back when the WWW was still developing and applications were not as sophisticated as they are now, the level of information security was equally poor. Nowadays, many users take for granted encryption algorithms like AES, triple DES, RSA, etc. All of which, practically speaking, don’t allow potential intruders without prior knowledge of the keys to read the encrypted data, provided that the algorithm is properly implemented. Ask yourself these questions: do you use the same password over and over again? Have you ever used really easy passcodes like ‘1111’ or ‘1234’? Do you have a passcode for your electronics?
Cryptography and information security has evolved so much that users don’t think about breaches until after an attack. On the other hand, because security has gotten so evolved, it’s now a hassle to remember long passwords, two/three-steps verifications, and all the other features that are meant to protect our information. How do you balance accessibility and data security?
So here’s the thing. Law has always been resistant to change. As we have seen with past jurisprudence, changes only come when specific circumstances are fulfilled and society’s mindset and values have changed. It takes years, sometimes decades, to effect change in the law. Why change something that works, right? This is the complete opposite of technology. Every day, technology is trying to change, for the better or worse, it’s ever changing. If you want an example, look at the Apple iPhone. Every year a new model comes out. How about laptops? CPU chips are getting smaller and more powerful every day.
Due to COVID-19, the legal system scrambled to implement technology into its daily functions to try and keep the institution running. Even for institutions that have already integrated a sufficient level of technology for remote learning/working, we’ve see how that went down earlier this year. Our law school completely shut down on the first few days of the Fall semester despite having 5-6 months to prepare. Now that we’ve marginally solved the problem of accessibility, the next question is security. For example, it’s easy to have security when you’re locked in a windowless room with your client (let’s ignore the fact that listening devices exist for a brief moment, because then we’re getting into ‘spy stuff’). How are you supposed to ensure your video-conferencing call is secure? What happens if an intruder hacks into your private video call with a client? What of the solicitor-client privilege? What happens if someone from another jurisdiction perpetrates these attacks?
It’s true that in our Criminal Code that we have various provisions for cyber crimes, but is it really enough? One thing we know from the last 8 months is that the more reliant we become on technology, the more demand there is for legal protections to prevent harm to society and its institutions. Cyber crimes can have such devastating consequences and can be performed anywhere in the world. Perpetrators come up with new ways to perform cyber criminal activities everyday. How can the law respond to the fact that our lives are now more intertwined with technology than ever? How will the law respond to that? Is it even possible for the law, as it is now, to protect the society and individual interests?
Hailey Lonsdale
The COVID-19 pandemic has been a life altering experience. In some areas, we have learned the ability to go without luxuries, now inaccessible or difficult to acquire. In others, the importance and required nature of certain elements of our lives have been underlined.
In the scope of legal education in Canada, the learning environment has been drastically altered. No longer gathering and learning side by side socratically in a classroom, Canadian law students are now forced to master material virtually.
Outside of the classroom, the legal ecosystem has been forever altered by the pandemic. The Right Honourable Beverley McLachlin noted in an article for The Lawyers Daily, that “it is no secret to anyone that our legal system and its institutions (courts, law practice, legal education, legal regulation, and access to justice) have been gradually breaking down for most of the last 20 years”. In her opinion, COVID-19 has accelerated the adoption and ushering in of new techniques, models, and ideologies.
One of these new ideologies is the importance of legal innovation education and the impacts it has on the ability of new lawyers. Increased education of legal innovation techniques and principles has been shown to improve access to justice issues and assist counsel in procuring case-related research more efficiently and advise their clients with greater efficacy.
The principles of legal innovation and useful tools derived from its philosophy are impactful for all those touched by the law. In my opinion, it should be required that all law students gain proficiency and aptitude in this area before graduation.
Here are three reasons why.
In this new COVID-19 age, additions to any mandatory law school curriculum must have the ability to be administered virtually with ease. Legal innovation training, with its roots in internet programs and resources housed in virtual environments, would be successful in a distanced setting.
When innovation is the goal, an exchange of ideas across borders and continents can be incredibly helpful. Many challenges that the legal community (and those who are impacted by it) currently face are not unique to Canada. A worldwide approach that calls on members of the legal profession for input and feedback on new innovative ideas would be incredibly beneficial. This is easily and arguably, best accomplished through a virtual learning environment.
Further, innovative ideas and tools created by law students would ideally have the ability to be customized to a specific jurisdiction. Having a global mindset throughout the educational process would work to provide an array of perspectives. This is easily accomplished in a virtual setting.
As a law student, it can be difficult to produce work (memo, term paper, presentation, etc) that can make an impactful difference. We may write a particularly insightful article, or comment on a recent judgment in a manner that resonates with our peers, but due to the nature of the legal education process, this connection is limited.
Legal advice clinics have been a beloved opportunity for law students to achieve the real, tangible impact they may desire. The introduction of mandatory legal innovation education would provide law students with many more chances to make this impact.
In our class, Designing Legal Expert Systems at Thompson Rivers University Faculty of Law, we have spent the past semester building browser-based legal applications (without the need for coding!). Using Neota Logic, my classmates and I have teamed up and identified important issues facing both legal practitioners and the general public, and are in the process of designing a digital resource (think of an in-depth questionnaire) to provide solutions and answers.
My group is currently in the process of producing a mental health resource app for legal practitioners. Our app will work to identify the most critical issues facing the user and will provide specific and tailored advice to assist in the alleviation of symptoms, and the general improvement of their mental health. In my opinion, using Neota Logic in this class is a fantastic example of some of the opportunities for tangible impact created through legal innovation education. Introducing a mandatory legal innovation curriculum would provide an opportunity for all Canadian law students to work creatively to solve important issues facing those in their community.
As mentioned previously, innovation is occurring, whether the legal community is accepting of it or not. The forced adoption of many innovative technologies due to the COVID-19 pandemic has required law firms and law schools to act differently than ever before.
This change is accelerating. Key stakeholders have clearly expressed their desire to implement innovative resources and technologies, as most often, they not only improve the client experience, but also the firm’s profitability. Firms are betting heavily on this change as well, to spearhead new competitive advantages. Like any educational curriculum, updates are required when precedent changes. It is clear that the old roadmap of firm operation is no longer effective, and will be swapped with a new, forward-looking approach.
Canadian law schools must equip their students appropriately, and require legal innovation education for graduation.