The computer conundrum

The world is awash with digital devices. Lawyers, typically not partial to new things, have had to face this uncongenial fact. They must use computers in their daily work. They are asked to advise clients on complex computer-related issues. All this makes them nervous. They don’t always understand how machines work (some never figured out how to send a fax). And awkward issues of an ethical nature can confound and confuse, as vast new areas of highly technical practice open up.

Once upon a time, the computer was an exotic thing you read about in a magazine — the mysterious Turing Machine devised by enigmatic Englishman Alan Turing in the 1930s or Colossus used by British intelligence to decrypt coded German messages at the end of the Second World War or the 1946 ENIAC weighing 30 tons and initially used by the U.S. government for calculations needed to create the hydrogen bomb. Today, almost everyone has a smartphone in their pocket with computing power far greater than that used by NASA in 1969 to put men on the moon. In 1974, I wrote a report commissioned by the federal Department of Communications assessing the future of what was then quaintly called “electronic legal retrieval.” I was skeptical about computers being used in legal research and concluded the methodology didn’t have much of a future. I was wrong, of course, although, in 1974, many lawyers felt the same way. Around the time I wrote the report, Hugh Lawford, a law professor at Queen’s University in Kingston, Ont., was in the early stages of developing what became Quicklaw, a pioneering and ultimately successful electronic legal retrieval system. Many, including me, scoffed at Quicklaw. Wrong again! Quicklaw was eventually sold to West Publishing in the United States, and it lives on today as LexisNexis. And well I remember — I think it must have been about 1990 — when the Bay Street law firm for which I worked offered a desktop computer to any partner who wanted one. Many showed no interest. “They’re just expensive paper weights,” one very senior lawyer told me, clutching a yellow legal pad and a couple of pencils as he tottered along to the firm’s sumptuous library of leather-bound books to do a bit of legal research.

The advent of computers raises two broad sets of problems for lawyers, each with ethical implications. The first involves the nature and structure of legal practice. Machines now easily perform routine legal tasks. For example, a computer can quickly scan thousands of documents and decide which ones are relevant to a case or transaction. That kind of chore once required squads of junior lawyers, each billed out at a handsome rate and dreaming of a brilliant legal career. Soon, machines will be capable of truly complex legal tasks — predicting the outcome of proposed litigation, for instance — supplanting more human beings and yet more human skills. The result is a revolution within legal services. Work is being reorganized and redefined. Billable hours are in decline. Fewer and fewer lawyers are needed, particularly middle- and junior-ranked lawyers. Traditional career aspirations are being denied. New and scarce skills are needed. People are getting hurt. Faced with this disruption, what are the ethical responsibilities of the profession — the law society, law schools, law firms, senior lawyers — particularly to young lawyers trying to make their way? What is a fair way to reorganize and adjust?

The second set of problems comes from the gigantic world of clientdom. Just as digital devices have roiled the internal world of lawyers, so they have upended the world of their clients, particularly corporate clients. The biggest impact is on privacy and competition law. In the digital age, privacy is being ignored and destroyed all over the place. Dramatic corporate data breaches are commonplace. In 2013, three billion Yahoo email accounts were compromised (still the biggest data breach of them all). In September 2017, hackers gained access to Equifax, a major American consumer credit reporting agency, compromising sensitive information for 143 million American consumers. In September 2018, Facebook discovered an attack on its computer network had exposed the personal information of about 30 million users. In Canada, major data breaches have affected Ashley Madison (2015), Bell Canada (2018) and Hudson’s Bay Company (2018). These examples just scratch the surface: A recent Wikipedia entry lists several hundred private and public data breaches throughout the world since 2005, each involving the theft or compromise of 30,000 or more records. Privacy law, once the province of a handful of specialists, has become hugely important, and platoons of lawyers are scrambling to catch up. But what do they know and what do they have to offer in the new digital age?

Privacy issues bleed into competition law. The control of user data by digital giants — and their tendency to minimize privacy concerns — leads to abuse of dominant position, particularly in online advertising. In March, Google was fined 1.5 billion Euros by the European Union for just such abuse (the third time Google has been sanctioned by the EU). The fine was based on the EU’s 2018 General Data Protection Regulation, which requires that individuals be able to choose how information about them is used. In April, Facebook announced that it had set aside US$3 billion as a contingency against an expected fine by the U.S. Federal Trade Commission for privacy violations in the United States.

Lawyers, of course, are quick to offer help with these recent international problems of privacy and competition law. Can they do so legitimately? Do they have the knowledge and experience required to help with new, technically complex, multi-jurisdictional issues? Ethics require that the legal profession do what it has never been very good at — recognize the limits of its knowledge and expertise.

Philip Slayton was the dean of law at the University of Western Ontario, a Bay Street lawyer, president of PEN Canada and is now a best-selling author. His latest book, Nothing Left to Lose: Freedom in Canada, is forthcoming.