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Regulating Lawyer's Information in a Digital Age

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Regulating Lawyer's Information in a Digital Age Regulating Lawyer’s Information in a Digital Age: Publication and Access to Lawyer Disciplinary Information Shane Sackman, B.A.(Honors), B.A.(Distinction), J.D. The author is currently Research Counsel at the Law Society of Alberta. The views in this paper are provided for discussion and information purposes and do not necessarily represent the views of the Law Society of Alberta now or in the future. 1 Introduction Legal regulators are purveyors and collectors of a body of sensitive and important information about their members. Increasingly, in Canada and elsewhere, the public has come to expect readily available “google” access to information about members in a profession. This is understandable. Individuals are accustomed to ready access to information to make their consumer choices, and that predilection spills into choice of legal service provider. These increasing pressures for access to information, in turn, raise issues for professional regulators. Regulators must assess how to be responsive to public demands, while still acting as fair and model regulators. Professional regulators are increasingly being looked to as facilitators of information that the public needs to make informed choices. It is cliché at this point to note that the Internet has forever changed how we use and disseminate information. The Internet enables anyone to access a vast range and scope of information almost effortlessly. The struggle in the information age is not availability of content, but critically assessing and sorting the content.1 There are a wide variety of social benefits to having broad availability to information, and individuals can make more informed decisions than ever before. However, the digital age has also brought its share of social ills. There are increased risks to individuals as information can now be accessed by a larger audience than ever before, and individuals often struggle to properly assess the reliability of information. This has given rise to the legal and social idea of a right to be forgotten (RTBF).2 While Canada does not presently have a RTBF, the conceptual building blocks of this type of right have slowly been emerging in Canada over the last few years, raising new concerns for legal regulators.3 This paper will focus on one area where the digital age is raising new considerations for legal regulators in Canada – publication of a member’s disciplinary history and corresponding access to that information for the public. The handling and dissemination of this type of information brings into focus the debate around the RTBF and the public interest in easy access to meaningful information about professionals they may wish to use. For example, how long should disciplinary information be readily available? Should disbarred members of the profession forever be listed in a readily accessible public space? How is the public interest in knowing about the professional they may hire best facilitated? As will be outlined below, 1 For an in-depth review of information literacy and its evolution see Eisenberg, Michael B. et al, Information Literacy: Essential Skills for the Information Age, 2nd Ed (Greenwich Publishing: Westport, 2004). 2 See Rosen, Jeffrey, The Right to be Forgotten, 64 Stan L. Rev. Online 88 (2011-2012) and Bennett, Steven, The “Right to be Forgotten:” Reconciling EU and US Perspectives, 30 Berkley J Int’l 161 (2012) for some general discussions of this topic. 3 See Fasken Martineau Privacy and Information Protection Bulletin, The “Right to be Forgotten” has a three-piece suit tailor- made in Canada? From Quebec to British Columbia, (March, 2017). Available at: http://www.fasken.com/en/the-right-to-be- forgotten-has-a-three-piece-suit-tailor-made-in-canada-from-quebec-to-british-columbia/ accessed September 13, 2017. See also Google Inc v Equustek Solutions Inc, 2017 SCC 34, which is the appeal of Equustek Solutions v Google, 2015 BCCA 265 mentioned in the article. The Supreme Court of Canada upheld the British Columbia Court of Appeal decision in a 7-2 majority. The Office of the Privacy Commissioner of Canada also commissioned a discussion paper called Online Reputation: What are they saying about me? Available at: https://www.priv.gc.ca/media/1810/or_201601_e.pdf accessed September 14, 2017. This paper also discussed the RTBF at pp 5-6. 2 regulators should be aware of how their many choices in this area affect public consumption of information. The purpose of this paper is to provide an overview of how several Canadian regulators publish registry and disciplinary information about members, and to guide discussion on this emerging issue.4 All regulators benefit from being cognizant of the fact that they play a major role in assisting the public navigate information about the members they regulate. Gone are the days of simply keeping hard copies in a backroom. Regulators are now forced to enter the digital sphere, but with that comes added concerns about how and where information is accessed. This paper will outline these access issues in three parts below. Section 1 will expand on the general debate between access to information proponents and the emerging RTBF in Canada. Section 2 will provide a more detailed overview of how some jurisdictions in Canada publish certain types of member’s information – such as registry and disciplinary information. Finally, the paper will end by discussing several potential parameters to consider when publishing member information in the digital age.5 1. Access to Information versus Privacy by Obscurity The focal consideration for legal regulators will be how to balance a RTBF with the public’s right to access information.6 This section will outline the two sides of this debate, as they are evolving in Canada. a. Access to Information In Canada, the public increasingly wants “google” access to information about lawyers, particularly disciplinary information. Some members of the public view failure to make this information readily available as akin to hiding it. Public confidence can be eroded when regulators fail to meet the legitimate expectations of the public they serve. Public regulators share a common responsibility to be responsive to these concerns. What is paramount for all legal regulators is to protect the public interest and maintain public confidence. This has been emphasized repeatedly in legal authorities and statutes, and it is the 4 In Canada, there has been an increased push for uniformity between each of the legal regulators operating in the country. Canada has thirteen separate jurisdictions: ten (10) Provinces and three (3) Territories that all have their own territorial legal regulators. The structure is similar to Australia or State Bar Associations in the United States. This paper will focus on Alberta, the author’s home jurisdiction, but will also include comments regarding other jurisdictions where applicable. It is worth noting that there is broad homogeneity between each of the different jurisdictions enabling acts and regulations in Canada regarding this particular issue. This is an emerging universal consideration for legal regulators across Canada. 5 In particular, (i) scope of digital footprint? (ii) are there time limits on how long information will be publicly linked? and (iii) consideration of whether publication should form part of sanction considerations. 6 See for example Rosenstock, Michael, Is there a “right to be forgotten” in Canada’s Personal Information and Protection and Electronic Documents Act (PIPEDA)?, available online at: http://www.it-can.ca/wp-content/uploads/Rosenstock-Right- Forgotten.pdf accessed September 13, 2017 and see also Gratton, Eloise and Polonetsky, Jules, Droit a l’oubil: Canadian Perspective on the Global “Right to be Forgotten Debate” (March 31, 2017). Colorado Technology Law Journal (Spring 2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2944012. 3 focal point for legal regulators in Canada. For example, in Pharmascience inc v Binet, 2006 SCC 48 the Supreme Court of Canada stated clearly:7 [36] This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232, “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions” (p. 249). The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. Also, it should not be forgotten that in the client-professional relationship, the client is often in a vulnerable position. The Court has already had occasion to address this point in respect of litigants who entrust their rights to lawyers (Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45 (CanLII), at para. 17). The general public’s lack of knowledge of the pharmaceutical field and high level of dependence on the advice of competent professionals means that pharmacists are another profession in which the public places great trust[…] The reality is that expectations have changed in the digital age, and regulators must address these demands. The Courts in Canada also recognize this reality. Appellate Courts have noted that the public has a “legitimate interest” in knowing their chosen professional’s “efficiency, skills and motivation”. Further, the public should not have to play a “game of 20 questions” to try and access this information.8 The public relies on legal regulators to help them navigate what they need to know about their chosen lawyer. It is not realistic to expect individuals to copy file folders during regular business hours any longer to find this information. Further, there can also be broader benefits to readily accessible members’ information. Another issue that has arisen in Canada is that some former lawyers try to forum shop for a new jurisdiction to practice in.9 This was possible because these members would fail to disclose their previous enrollment or disciplinary history.
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