Developing a unique, identifiable and distinct voice is not easy, but it begins and ends with your ability to conceive and communicate a credible story that resonates at some level with your audience. Unless you can do that, you’ll never be heard above the din of the crowd.

So why can’t most law firms do this?

No reason at all. But when it comes to law firms, there is a negative assumption that partnerships do not agree on much. Or rather, making decisions is too hard – too many opinions, too many egos.

My own firm, Watershed LLP, is new, but we have really worked hard at developing and communicating a story of our own. Time will tell if we have. We are not, of course, alone. Visit Exemplar, Shepherd Law Group and Valorem and you’ll see some excellent examples of how a unique story told with passion, honesty and commitment can resonate.

Of course, being “different” from the crowd gets you labeled a “rebel” as in the case of Patrick Lamb of Valorem and Jay Shepherd of Shepherd Law Group. If by "rebel" we mean someone who resists convention, then I figure it's a fitting label.

While some other provinces were quicker off the mark, Ontario's legislation seems to have garnered the most media and other attention. Employer's are busy drafting and distributing policies to their workforce and educating them on what the law means.

While the legislation will (or should) change the way people behave behind the wheel, we should not be surprised that the government has decided to regulate the area. The National Safety Council had a Symposium on Distracted Driving. In a paper comparing cell phone use while driving and the drunk driver the authors concluded that:

When drivers were conversing on either a handheld or hands-free cell phone, their braking reactions were delayed and they were involved in more traffic accidents than when they were not conversing on a cell phone.

A seminal study was published in the New England Journal of Medicine that evaluated the cellphone records of 699 individuals from the Toronto area who had been involved in non-injury traffic accidents. The study concluded that the risk of a collision when using a cellular telephone was four times higher than the risk when a cellular telephone was not being used

There's a recent article in The New York Times (thanks to Stephen Seckler at Counsel to Counsel for the pointer) that's worth a read.

The Ontario Medical Association recently published a paper in which they review the literature on both behavioural and experimental studies and conclude that a strong association between cellphone use while driving and cognitive distraction which leads to deterioration in various driving performance measures and an increase in unsafe, collision-prone driving.

Leaving aside fines under the legislation, and potential tragic consequences, there are liability issues that an employer needs to be aware of. For an eye opening outline of some of them, have a read of Cell Phone Use in Car Leads to $5.2 Million Payout by Employer. If you're a lawyer, read this one.

It begins with Jim Calloway's post Online Reputation Management: First Rule is to Avoid Self-Inflicted Wounds. That really is the first rule and the one that is sometimes forgotten "in the moment". Jim writes:

As we have seen with many well-documented Facebook and Twitter stories, the biggest potential danger area for damage to your online reputation is you. We saw it happen with flame e-mailing when angry and now you can post your anger or missteps online for the entire world to see with social networking.

But what others write about us can also have an impact. According to a 2009 Neilsen Global Survey:

Recommendations from personal acquaintances or opinions posted by consumers online are the most trusted forms of advertising, according to the latest Nielsen Global Online Consumer Survey of over 25,000 Internet consumers from 50 countries.

Albeit in a slightly different context, this quote is instructive, as it shows that online information is a critical source of decision making. Increasingly so.

Dennis Kennedy and Tom Mighell have released a podcast on the subject. Here's Dennis's post.

Check out, for example, the new MIT Personas to see what's on the internet about you (or at least someone that shares your name). A bit of a cottage industry has grown up around the concerns about managing the online reputation. As examples, Defendmyname and Reputation Defender.

Again, what you post on the internet can have broad implications on your life and career. What others write about you can also have profound implications.

But first a digression. I suppose it was only a matter of time, but the ABA Journal reports that the "Florida Board of Bar Examiners voted to review applicants' social networking sites on a case-by-case basis". The Florida Bar News put it this way:

“Watch what you post on your Facebook or MySpace social networking Web sites, because the Florida Board of Bar Examiners is interested in taking a peek — and not as your ‘friend’.”

There appears to have been some thought given to requiring all bar applicants to provide access to their Facebook and/or MySpace websites but this was abandoned in favour of a more selective approach for certain bar applicants that met specified criteria and fell into certain categories such as “applicants with significant candor concerns, including lack of candor in employment applications or resumes”. If you want to read more about this have a read of the report submitted to the Supreme Court of Florida starting at page 4.

Hat tip to Molly DiBianca who writes one of my personal favourite U.S. employment law blogs, The Delaware Employment Law Blog.

What about Canada?

Good character status is a licensing requirement in Canadian jurisdictions (for example here in Ontario and Alberta, among others).

Will these types of checks become more common in Canada as a means of examining “good character” in the professional licensing process? If so, how and when will they be used?

In the employment context, it seems that more and more employers are conducting on-line searches as a component of their “background” check process during the hiring. A recent Career Builder survey of 2600 hiring managers concluded that 45% “use social networking sites to screen potential employees, compared to only 22 percent of employers last year.”

Of those who conduct online searches, “29 percent use Facebook, 26 percent use LinkedIn and 21 percent use MySpace. One-in-ten (11 percent) search blogs while 7 percent follow candidates on Twitter.”

In fact, one employer went so far as to require all applicants for employment to submit a list of all "current personal or business websites, web pages, or memberships on any Internet-based chat rooms, social clubs or forums, to include but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc." along with passwords. This controversial policy was rescinded.

On-line activities can, indeed, have adverse employment consequences as many have discovered. The New York Times article For Some, Online Persona Undermines a Résumé is just one example of the long reach of the on-line footprint.

But conducting on-line searches as part of the hiring process is not without risk to the employer. George Lenard, a long-time U.S. employment blogger wrote a series of posts (from a U.S. perspective) on some of the issues that present themselves when conducting on-line searches as part of the hiring process (Employers Using Facebook for Background Checking, Part I, Employers Using Facebook for Background Checking, Part II and Employers Using Facebook for Background Checking, Part III).

The risk of on-line searches in the employment context arises, largely, because too much irrelevant information might be turned up and come into the hands of the employer. Once the employer has this information, whether as a “screening” tool or in making other employment decisions, any adverse decision so far as the employee or prospective employee is concerned could be challenged on the basis that this irrelevant information was used, even in part, as a basis for the decision. For example, hiring or other employment decisions might be open to challenge as being discriminatory and contrary to human rights legislation. So there is risk.

At the same time, it is possible for on-line searches to reveal information that may well be relevant to hiring decisions.

Consent, transparency and timing may be the better approach where on-line searches are being conducted as part of the hiring process. Also, if disconcerting information is revealed, it may be prudent to give the applicant an opportunity to provide his or her explanation. Google your own name and see how much information turns up that has nothing to do with you.

That said, what you post or write on-line is a permanent record for all to see with all the good and bad that comes with that.

That's the lesson from a recent Ontario Superior Court case.

The plaintiff was hired by the defendant on November 28, 2005 for the position of full-time receptionist and was promoted to the position of Executive Assistant in 2008 at an annual salary of $36,000. Her employment was terminated on November 28, 2008 at which time she was presented with a severance package that provided, in part as follows:

You will receive an additional five months pay in lieu of notice of termination as per our obligations under the Employment Standards Act of Ontario.


The Employment Standards Act would have provided the plaintiff with only 3 weeks pay, significantly less than 5 months pay. The plaintiff signed and accepted the terms of the offer. A few days later the plaintiff attended at the workplace to return some property of the employer at which time she was advised that there was a mistake in the offer.

The plaintiff was told that she "… would only be receiving three weeks’ termination pay. The plaintiff was asked to sign a release which she did not do."

The question was whether there was an enforceable agreement that the plaintiff could enforce?

The Court found that such a contract existed:

The letter represented the employer providing consideration it owed to the employee. In the absence of any demonstrated intention of the employer to deal separately with its common law obligations, the submission that the letter was intended to deal only with the statutory obligations of the employer cannot stand. The letter was to be the completion of the contract. It represented not only the fulfillment of the employer's statutory obligations, but also its effort to conclude its common law responsibility to provide reasonable notice or pay in lieu of that notice. The acceptance of the letter would represent the completion of all the employer's obligations. ….


So, the lesson is clear. Take time to review the terms of any termination letter or, for that matter, any offer. Any contract requires that three things be present (1) an offer, (2) acceptance and (3) consideration. Someone mentioned to me yesterday the master carpenter's motto "measure twice, cut once". That can be modified to fit the employment model as well. For a more detailed discussion of terminations generally, including termination clauses, see this post on my blog, Thoughts from a Management Lawyer.