"A Duty to Google?": Professional Competence for Employment and Labour Lawyers

  • June 16, 2020
  • Niveda Anandan, Osler, Hoskin & Harcourt LLP

The “duty to Google” is not a novel obligation imposed upon lawyers when considered in the context of practitioner competence. The term serves as simple reminder to lawyers of their responsibility to make use of information that is publicly and easily available. 

The Rules of Professional Conduct (“Rules”)[1] define a competent lawyer as a “lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client including […] investigating facts, identifying issues […]”.[2] While there have been several variants of this rule, the idea of competence has remained unchanged. It is apparent from this rule that a competent lawyer should never ignore obvious, easily accessible sources of relevant information. 

What has changed is the availability of information since the advent of the internet, search engines and social media. Information gathering efforts that once required visits to libraries, physical sifting through the Dewey Decimal system and print archives or even retainers of professional investigators, may now only require an internet search. In this context, the duty of professional competence has expanded. Lawyers are now responsible for uncovering information that is now more accessible than it was in the past. 

Many commentators have responded to the changing legal landscape by asking Canadian law societies to adopt a more explicit duty of technological competence for lawyers. On October 19, 2019, the Federation of Law Societies of Canada made a move in this direction by amending its Model Code of Professional Conduct (the “Model Code) [3] to add the following commentary to the competence rule (ch. 3.1-2) [4A]: “to maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities.” [4] The new commentary of the Model Code is clearly context specific and embodies the principle of proportionality. 

The LSO has, in turn, released a Technology Guideline (the “Guideline”) explaining the role of technology in the practice of law and the limited circumstances in which the use of information technology is mandatory.[5] Having said that, the LSO has refrained from amending the actual rules of professional conduct. Even when discussing technology, the Guideline outdatedly continues to recommend that lawyers should consider using established electronic legal research methods such as CanLII or Quicklaw or communication technologies such as “voicemail, e-mail, facsimile transmission, text or telephone or video conferencing”.[6] The suggestions are permissive. However, in 2020, using CanLII, Quicklaw and e-mail are basic necessities to running a modern legal practice.