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Mike McCubbin: Tips for a paperless office

When I tell people that I’m a lawyer and I run a paperless office, I often get one of two responses:

  1. From people who have been in a law office: “Good…lawyers have far too much paper to begin with”.
  2. From other lawyers: “How?”

This blog entry is aimed at the latter. Paper will never vanish, but its use will become less important in our lifetime. I have come across many lawyers who are confused because they regard paper as an essential element of their law practice, in particular emphasizing the importance of original copies. In my view, this is a formality that becomes less relevant when we consider that anyone can go down to Future Shop and buy the equipment necessary to forge almost anything. In the end, we rely on the honesty of people authenticating documents as being what they purport to be.

Most of the challenges associated with avoiding paper have very simple solutions. While the electronic creation and storage of records increases the quantity and breadth of documents relevant to litigation, remember that the only reason this increases the amount of paper is that we choose to produce that paper for presentation purposes. Just about every advantage of paper has a cheaper and better equivalent when preserved or stored in electronic format. The trouble is, most lawyers view their computer as a word processing and internet browsing machine and not a tool for sorting, organizing, and presenting information.

A discussion of each of these advantages is well beyond scope of a single blog entry. Here, I intend to look at some of the legal issues around avoiding paper.

Most importantly, your paperless office will survive a Law Society audit. BC’s first virtual office has done it and so have others (my practice has yet to undergo the pleasure of an audit). [The Law Society of BC has posted a Compliance Audit FAQ - Eds] So long as you are as disciplined in maintaining electronic records (whether initially created in electronic format originally or turned into electronic format by scanner), in the same manner as your paper records you will be fine.

In large part, that is because there is an express statute allowing matters within provincial jurisdiction to maintain electronic records: the Electronic Transactions Act, S.B.C. 2001, c. 10.

Of course, there are a few important exceptions set out in s. 2 of the Act. Broadly put, those exceptions are for:

  1. wills, including trusts created by wills;
  2. powers of attorney;
  3. documents that create or transfer an interest in land and that require registration to be effective against third parties; and
  4. anything prescribed by the regulations (there are presently no regulations).

Section 5 of the Act provides that any legal requirement to keep a record in writing is satisfied if the record is in electronic form and accessible in a “manner usable for subsequent reference”.

Section 9 provides that any legal requirement to provide or retain an original record is satisfied by the provision of the record in electronic form if there is a “reliable assurance” as to the integrity of the record in electronic form and the electronic record can be maintained

Section 11 dispenses with the requirement of an ink signature if an electronic signature is ascribed to the document.

This is significant, not because it does away with having to print, sign and scan a document, but because it dramatically improves document security; a frequent concern for lawyers whether documents are in paper or electronic format.

A proper electronic signature is more than an image stuck on a PDF.

Anybody could forge my ink and even I would not know any better. However, my electronic signature is protected with a very strong password.

Furthermore, an electronic signature contains information that helps me and the reader. It tells me when I signed it, the organization on whose behalf I was signing it, and my basic contact info.

Most importantly, once I electronically sign a document, that document cannot be altered if I choose to lock the document. Even if I do not, then I can find out exactly what changes have been made since I signed it.

Of course, not all this does away with the practical challenges of dealing with people who are unfamiliar or uncomfortable with electronic records’ production, storage, and use. A good lot of the time, it is easier to just provide a paper record than it is to squabble over the legal right to provide documents in electronic form.

The manner in which I approach this matter varies. For very small matters, such as a one-page letter or form filed in person in court (e.g. the Counsel Designation Notice I filed in Provincial Criminal Court this morning), I typically just print it and provide it.

For larger matters, I politely insist at the outset that documents be exchanged in PDF format and that we each bear our own costs of production. Some opposing counsel have suggested a 20 cent/page scanning fee. However, when I tell them that I will not charge a similar fee, they typically back off. For my practice, most opposing counsel have well-resourced clients and have staff who can easily deal with electronic documents or even prefer to do so.

A good recent example is document disclosure I provided to defendant’s counsel last week. 800 pages of disclosure cost nothing to produce and deliver (other than a couple hours of staff time to create an index and PDF binder, which I wanted to have anyway). It also takes up no physical space (unless they print it) and does not deteriorate over time.

The above is a very basic overview of why, from general and legal standpoints, you do not need paper to practice law. The how is the next step.

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