48 THE ADVOCATE
VOL. 77 PART 1 JANUARY 2019
into account certain factual inputs and compare these inputs with past decisions
and current legislation to offer an estimated output or range.
Should We Use Substantive Technology?
The opportunities noted above represent the tip of a much larger iceberg of
pending legal technology. The extent to which those technologies will
become part of our daily life as lawyers remains to be seen—but if we are
to stay true to the oldest and best traditions of our profession, it is essential
that alongside developing an understanding of how they work and what
they can do for us, we turn our minds to their ethical implications.
These new substantive technologies engage many of the same ethical
principles engaged in relation to practice management technology, but in
different or at least nuanced ways. The first and most fundamental question
is how new technology may affect our competence as lawyers. Will the
efficiencies and complex analytics they offer add new weapons to our arsenal,
or by relying on automated processes, are we compromising our duty
to exercise our own judgment? Can a competent lawyer properly sign off on
an e-discovery exercise knowing that, within a pool of material, there are
certain documents that no human reviewer has set eyes on? Is that compatible
with our duty to our clients, or our duty to the court? Conversely, if it
is true that, statistically, across a large population of documents, algorithmic
review software can do a better job of identifying relevant documents
than human reviewers, is it competent not to use that software?
Other ethical principles are also engaged. The efficiencies offered by
automated technologies have implications for the fees payable by clients.
There is the potential for considerable savings, for example by automating
a first-level document review. One Canadian provider of algorithmic document
review services estimates that an average traditional document
review rate is 50 documents per hour; in comparison, that provider advertises
a combined review process that includes searching and reviewing documents,
as well as summarizing evidence, at rates of 150–200 documents
per hour.13 At the same time, counsel and clients should be aware that outsourced
and/or automated processes may have unexpected associated
costs, including time spent by members of the litigation team briefing the
review provider, giving feedback and answering questions, and carrying out
quality checks. Whether those tangential costs are outweighed by the various
cost and time savings of using technology will depend on the nature of
the matter, the services required and the number (and type) of documents
to be reviewed. There is a cost-benefit analysis to be carried out prior to
using technologies of this nature.