As Connie mentioned, our firm launched a new website last week. In this post, I’ll share a few thoughts about the process of creating a new law firm website.

Lawyers tend to be a conservative lot, tend to set a low priority on things that don’t bring short term gain, and tend to want to be in control. That combination doesn’t lend itself well to creating a new website that may be somewhat different. It can lead to analysis paralysis, or a conservative approach that leads to either no new site at all, or one that tries to satisfy everyone.

So what is the best way to approach it? Some of this will sound like project management 101 – it is not unlike the process of building or buying a new home.

• Create a core team to run with the project that will include the CEO, the marketing/promotion manager, and others who believe in the project.
• Go to your internal influencers first at key stages to get early buy in.
• Celebrate the early adopters to get others on board. In our case showing some early examples was key for the candid lawyer photos.
• Seek input along the way – or at least keep the firm informed at key stages – but keep control in the core team.
• Decide who the audience is for the website, and what they would want to see. Depending on the nature of your firm, that could be existing clients, prospective clients, client influencers, or other lawyers.
• Look at different websites to see what you like and don’t like. Look beyond your own industry.
• Create a wish list of things you want to accomplish and what it might look like – knowing that some of those may have to be dropped or deferred for various reasons.
• Don’t forget the basics like your office location and directions.
• Hire well. Engage the right web developers and creative advisers. Check their references and body of work. Anyone can create their own site using online tools, and there are many web developers to choose from – but choosing one that understands web trends, doesn’t create sites that all look the same, and you are comfortable working with will get a better result.
• Listen to the web developer's suggestions and advice, and have regular progress reviews and discussions about direction and costs.
• Stay out of the web developer's way and let them do their work.
• Make sure the website is mobile and tablet friendly.
• Make sure the message and personality of the website matches your firm. It must be genuine.

Julian Assange's extradition appeal was heard at the UK's highest court on 1 and 2 February. Assange is trying to avoid being sent to Sweden to face allegations relating to sexual encounters there in 2010. The key issue is whether a public prosecutor is a valid judicial authority.

Two things about this appeal illustrate the flexibility of what is wrongly thought to be a crusty, fossilized world. Both barristers in this extremely high profile case are women. And the proceedings were broadcast live from the court room. Here is an extract from the hearing.

And Simon Chester's post today reports an announcement that the court will start official tweets of judgments .

Not all fraudsters are strangers. Even partners, associates, law clerks or other employees may turn to fraud because of financial pressures from a divorce, failed business venture, or other personal crisis. Its usually the last person you'd expect, and often one of your most long-standing and trusted employees.

Here are the red flags:

• Someone never takes vacation or sick leave, works overly long hours, or refuses to delegate work.
• A firm member undergoes a sudden change in lifestyle or change in temperament.
• The firm receives mail for a corporation for which no client file is opened or billed, or minute books are kept in the lawyer’s office instead of with the corporate law clerk.
• Unusual patterns such as a sudden increase in payments to a person or credit card company or government, or complaints about slow payment from suppliers or clients, or an increase in written-off work in progress (WIP).

For more information, and directions on what to do if you have a suspected or real fraud, see “Fraud on the Inside: What to do when partners, associates or staff commit fraud” in the Winter 2008/2009 issue of LAWPRO Magazine at www.lawpro.ca/magazine

Congratulations to law firm Harrison Pensa in London, Ontario who have just relaunched their website. While launching a new site is not necessarily newsworthy (well, unless you are a member of the firm itself), in this case HP have used some fresh thinking which makes this redesigned site stand out.

A few features of the site:

• the look of the site is bold, personable, and still professional
• rather than stock photos, they feature their own lawyers prominently
• lawyer bios include links to their lawyers on social media sites (notably LinkedIn) and also allow for readers to share the bios across the web with a social media "share" button
• they have three blogs on the site (HP Business, HP Community, and Students), again with share-ability
• they are one of the few law firms taking advantage of the popular software WordPress.

Why is it interesting that they are using WordPress? WordPress is a free, Open Source platform that has become widely adopted around the world both for blogs and for websites as an easy-to-use content management system (CMS). According to Matt Mullenweg (WordPress originator) last August in his "State of the Word" report, WordPress is running on 15.5% of all websites, and accounts for over 54% of CMS marketshare. 22% of domains registered in the U.S. are running WordPress. That is a huge adoption rate, and yet law firms have a tendency to look for something other than this obvious solution. So, kudos to HP for joining the "cool kids" in using WordPress. It makes sense to use something that is widely known, and has a community around it for support.

HP are also tying the launch of their new website in with a campaign to raise funds for the London Food Bank. For every person who "likes" their Facebook community page, they will be donating a pound of food to the food bank. Kudos on this idea to give back!

For a more in-depth discussion of why the Harrison Pensa website is significant, see also Jordan Furlong's post on the Stem Law Firm Web Strategy blog from February 1st.

The Quebec Bar Association last week published its first annual report card on the rule of law in the province, or Bilan de l’état de droit au Québec (in French only).

In the report, the Association summarizes its public interventions over the past year.

But what appear fairly unique are its efforts to measure the level of respect for the "rule of law" by authorities in the province and in Canada according to 4 criteria:

• public authorities and their representatives are subject to the law and courts are independent
• the protection of rights and freedoms of all citizens is assured
• the laws are stable and predictable
• access to justice is affordable

Overall, the Quebec Bar concludes that citizens of the province can have confidence in the rule of law in Quebec and Canada.

But there are grounds for worrying that certain rights are being eroded, states the report. And, according to the Bar, on certain occasions, the State has departed from respect for the rule of law.

The report mentions:

• reform of the Criminal Code (in particular, the proposed expansion of mandatory minimum sentences is criticized for threatening the ability of judges to make sentences correspond to the individual circumstances of each case)
• the growing "trivialization" (banalisation in French) of immunity from prosecution of certain categories of citizens and organizations, usually for economic reasons. The report mentions legislation that eliminated the right of citizens to sue snowmobilers or off-road vehicles for nuisance or damages to their property. It also refers to the proposed bill that would protect the City of Quebec from ever being sued over the building of a new sports/entertainment amphitheatre
• diminishing access to justice due to rising legal costs

It will be interesting to see if the idea of annual reports on respect for the rule of law spreads to other provinces and territories.

According to the Canadian Charter of Rights and Freedoms (Section 15 (1)):

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Of course, and unfortunately, this is not always the case in practice. Many people continue to deny others equal treatment, intentionally and not. Law Times offers a recent example of alleged systemic discrimination; the case Law Society of Upper Canada v. Selwyn Milan McSween raises the question of whether racism hinders black lawyers’ participation in big law firms in Ontario. I am sure this problem is not exclusive to big law firms or Ontario.

Selwyn McSween is a black lawyer found guilty of professional misconduct for “completely abdicating his professional responsibility” to an allegedly unscrupulous law clerk, in the opinion to the Law Society of Upper Canada. However, dissenting appeal panellist Clayton Ruby stated:

We cannot close our eyes to the disproportionate number of black lawyers whom we find before us faced with very grave professional misconduct allegations. …

The legal profession has made no concerted effort to rid itself of the racism inherent in the practice. The effects of racial inequality are real, not imagined, and we do the public no favour by refusing to acknowledge them.

Ruby suggests that the reason black lawyers face increase disciplinary charges is that minority groups have fewer and less meaningful articling opportunities to gain experience compared to “non-racialized” lawyers, law students and others in the profession.

The Law Times article refers briefly to a 1999 report on Racial Equality in the Canadian Legal Profession by the Canadian Bar Association, and I was curious.

According to the report:

Systemic racism or institutional racism is not about individual malice. It is about the way seemingly neutral values and practices can inadvertently serve to promote discrimination. It is about how the legacy of historic discrimination can continue to thrive in our midst.

The report’s authors clearly recognized that, at that time, law graduates from minority groups had poorer opportunities than non-minorities. Such graduates did not get the much-needed training and experience that their white counterparts received to succeed in the practice of law. I wonder what steps the Law Society of Upper Canada, the Department of Justice, the law schools and other decision makers have taken, given the findings of the report. Did they follow the strategic steps and recommendations? I guess not really, if we accept Ruby’s statement.

It would be interesting to know how the law society and the other groups received the report, and a follow-up report on the steps taken would have been very helpful!

As a lawyer who is also black (though that is not all I am, and I do not define myself by the colour of my skin, which by the way is brown not black), I see that systemic racism in law firms is unfortunately still a reality and not merely a perception. However, it is not only in law firms, but in many other industries and professions. I would also say that it is worse for black men than for black women.

This said, not all black lawyers are lacking experience in the practice of law, nor can we say all black lawyers do not obtain meaningful articling opportunities. Many lawyers who also find themselves referred to as blacks have succeeded in the legal profession. I can further add that some progress has been made to include more lawyers who are black in the legal profession; however, not enough.

In my view, these advancements are based on tolerance, not on totally removing the prejudiced policies, practices, perceptions, stigma, stereotypes and ideas about people who are black that continue to thrive in society, law schools and law firms. No matter the colour of our skin, it is not something we can change. It will always be with us and will be the first thing an interviewer will see, no matter whether we are the most experienced, the most qualified or the best candidate.

Tolerance has not been a final solution, but a precursor of continued racism.

I can also say these advancements are to meet diversity goals to show the public how multicultural a firm is, or to meet employment equity requirements, not solely with the intention of truly removing barriers that stop racism. Please note, having to state in an application form that you consider yourself part of a visible minority does not help, or reassure me that I will be considered so that you can meet your diversity goals or employment equity requirements.

At the same time, lawyers who also find themselves to be black have a responsibility to obtain the experience they need to become lawyers, especially if they have to become sole practitioners because law firms won’t hire them. Articling, although required, is not the only way to gain experience. Black lawyers’ the main concern should be getting their degree, learning as well as they can, practicing law and being the best lawyers they can be.

Not getting a good articling experience because you are black is a real problem that needs to be dealt with but not a good reason to become guilty of professional misconduct.

To gain knowledge and experience before I graduated, I volunteered in associations and legal centres. After I graduated, on top of articling, I sat in court most days watching how lawyers pleaded their cases. I talked to other lawyers and judges. Judges were the most willing to guide me. I read on the developments of legislation and case law at least three hours every day, and still do. I went to conferences, seminars, courses and workshops on the topics of law I wanted to specialize in. It takes work, but you need to look beyond the colour of your skin, even if others insist that you do.

But I still have to wonder, why would systemic discrimination still exist in law firms? Within organizations who are there to protect the public and the practice of law? Doesn’t the legal institution exist to uphold and apply the law without any prejudices?

So what do members of the Canadian Legal Profession and decision-makers intend to do about this?

Last week the Federal, Provincial and Territorial Ministers of Justice met in Charlottetown for an annual conference started four decades ago by then Minister of Justice John Turner. With the big price tag attached to the federal government's omnibus crime bill C-10 and budget cuts on the horizon, there were no significant spending commitments by the federal government.

Legal aid is still on the agenda at these meetings, but barely. By my count, it is item number 16 out of 19 in the post-conference communiqué. Here is what the carefully-crafted language said:

Ministers affirmed their commitment to a responsive, fair, efficient and accessible justice system which includes access to legal aid and referenced the common statement of principles approved in October 2010. Provincial and territorial ministers asked the federal Minister of Justice for continued and enhanced federal funding support for criminal legal aid to address the continued pressures faced by all legal aid programs. They asked for early confirmation of the level of federal funding given that existing agreements expire at the end of March 2012. Provincial and territorial ministers also noted the need for renewed and enhanced funding for immigration and refugee legal aid for those jurisdictions offering such services

In a post last month, I reviewed efforts by former Minister of Justice to establish a national legal aid plan. In a time of budget cuts, we cannot expect that governments will invest in legal aid and access to justice. Solutions must come from us, within the legal profession or else we will wait while Ministers continue to "affirm their commitment" to an accessible justice system which includes access to legal aid.

My post today is a question.

I recently heard an interview in which a major newspaper editor said the traditional model of "active" journalist and "passive" reader, is dead. He gave the following illustration. On the opening night of a new opera production the most experienced and highly regarded opera critic in the world can write a review for the next day's paper. It will be brilliant as usual, but it is "nonsensical" to think the other 700 people in the audience have nothing of value to add.

He likened this change in perspective to flipping a switch in our thinking. Do not think of the newspaper as being "on the web", but "of the web".

The Massachusetts Institute of Technology has made the decision to post all of their course materials on line. It is now accessible free of charge both to students and professors at other teaching institutions.

Through Galaxy Zoo "citizen scientists" take part in helping professional astronomers assemble valuable data for research and exploration.

Scientific data that gives a "leg up" to pharamaceutical companies working to develop cures, is now being posted on line by public-private partnerships that support the discovery of new medicines through open access research. The result is that cures are being developed years sooner than under the traditional model in which such data is proprietary and patented.

Does this open access, interactive model have any potential application to the provision of legal services in the civil justice system?

Who are these guys and why are they so happy? You're looking at Clio co-founders Rian Gauvreau on the left and Jack Newton (Slaw blogger) on the right; and they'll be smiling right now because they've just announced at Legal Tech that Clio has raised six million dollars in its Series B round of financing. From the Clio press release:

Clio will use this new funding to extend its product leadership position, aggressively developing new functionalities and supporting its growing customer base. In addition, the company aims to expand its footprint beyond the U.S. (which currently represents 95% of Clio’s sales) into other markets including Europe, Canada and Australia.

As the story in the Vancouver Sun explains,

Clio targets the majority of lawyers — those working solo or in small-scale firms — who want a reliable, convenient, low-cost method for managing their work flow. . . It is designed to streamline an array of tasks . . .

Our congratulations to Clio. It's great to see a company in the legal industry getting it right in these difficult times.

Steven Slevin had a lifelong history of mental illness. On August 24, 2005, Slevin was charged with driving while intoxicated and receiving or transferring a stolen vehicle, and checked into the Dona Ana County Detention Center.

He was placed in solitary confinement, and remained there for approximately 18 months. He was briefly released for 14 days to receive psychiatric care and was returned to solitary confinement, for a total of 22 months, before the charges were dismissed and he was released on June 25, 2007 due to incapacity of participating in his own defence.

Slevin files suit on December 23, 2008, and on January 24, 2012 a jury awarded him $22 million, $6.5 million in punitive damages, and $15.5 compensatory damages for deprivation of constitutional rights, including the right to humane conditions of confinement, the right to receive adequate medical attention, and depriving him of procedural due process.

The court documents, including the complaint, trial briefs, and jury verdict, are available here. The county is expected to appeal the decision.

The inability of prisons to deal with mental health problems has long been recognized. The World Health Organization (WHO) estimates there are 450 million people with mental illness, who are highly represented in prisons populations,

The disproportionately high rate of mental disorders in prisons is related to several factors:

• the widespread misconception that all people with mental disorders are a danger to the public;
• the general intolerance of many societies to difficult or disturbing behaviour;
• the failure to promote treatment, care and rehabilitation,
• and, above all, the lack of, or poor access to, mental health services in many countries.

Prisons are often used as a dumping ground for those with mental health, and conditions there usually exacerbate mental health disorders. Improper treatment of mental health also has a cost to prison operations, because such inmates require specialized care and often more attention than others who are incarcerated. The high cost of incarceration, rather than publicly-funded medical care, means that the costs of inappropriate treatment of the mentally ill are passed on to the public.

Although damages as high as those awarded to Slevin would not likely be found in Canada, it is a reminder of the public cost of the government's omnibus crime package, Bill C-10. Jerry Madden, a conservative Republican and head of the Texas House Committee on Corrections, responded to Bill C-10 last fall,

It's a very expensive thing to build new prisons and, if you build 'em, I guarantee you they will come. They'll be filled, OK? Because people will send them there.

Let's just remember who we will inevitably be filling these prisons with.

Winston Churchill once famously rejected a desert saying, as he pushed it away, "This pudding has no theme."

Of the many criticisms that can be justifiably leveled at my weekly post on this blog, lack of theme, I hope, is not one.

The theme of my posts is the need to preserve our adversarial system of civil justice; to prevent it from morphing into one that basically offers only interest-based dispute resolution because the energy and the skills needed to determine rights, have fallen into disuse.

I carry that theme around all during the working week, and after hours too.

So when I read about the "Occupy The Courts" demonstrations in the US last Friday, it was, I thought, a shining illustration of the importance of an independent, strong judiciary. It fits my theme like a glove.

According to the "Occupy The Courts"  website, the legislative and executive branches in the US have sold out to corporate interests but there remains a chance with the judiciary:

"The courts are the one place where there still exists some chance of a fair result for the 99%, against the power and influence of the 1%. Occupy The Courts is a people-powered movement to bring court cases against corporate power and government abuse, and is an extension of the Occupy Wall Street movement that began on September 17, 2011 in Liberty Square in Manhattan's Financial District."

The timing of the "Occupy The Courts" demonstrations last Friday was arranged to mark the second anniversary of the United States Supreme Court decision in Citizens United vs Federal Electoral Commission. A decision that, according to the protesters, changed the rules for election financing and, gave personhood to corporations, allowing unlimited corporate funding of independent political broadcasts in election campaigns.

My point is not of course who is right, but that there are rights. And when asserted, a healthy society must have robust machinery that is capable of determining rights swiftly, impartially, and according to law.

While the issues concerning "Occupy The Courts" are big, public, constitutional questions, this is no less true of private civil disputes.

On Friday I had the pleasure of speaking to an audience of lawyers at The Commons Institute's eCommerce and the Practice of Law conference in Toronto. I was given the large topic of using social media in a legal practice.

Below are the slides I started with in the discussion, but the real meat of it was the many excellent questions that were put to me by the group. I hope to blog more about those questions, either here or over on my personal blog (will let you know!). In the meantime, I hope these slides are helpful.

In 2008, the Ontario Attorney-General launched "Justice on Target," a project intended to reduce wait times and delays in the criminal court system. The initiatives were broken down into several programs:

• Meaningful First Appearances
• Dedicated Prosecution
• Crown Access Commitment
• Streamlined Disclosure
• Appearance Standard
• Increased Availability of Plea Courts
• Direct Accountability
• Enhanced Video Conferencing
• Bail Enhancements
• On-Site Legal Aid

The new Attorney General, Hon. John Gerretsen, announced today to the media that the project may not meet its goal of 30% reduction in appearances,

It's difficult for all of us to change the way we've traditionally been doing things, and perhaps the target of 30 per cent may have been too ambitious at the time.

But I see some value in the fact that we have reduced, on average, the number of appearances and that we're heading in the right direction. But much more proactive work has to be done.

The revelation may have been prompted by an article by Kendyl Sebesta in The Law Times, which obtained a review obtained by a freedom of information request and showed inconsistent and negative results and funding problems,

The statistics aren’t promising so far, according to the review. Only courts in Scarborough and Brampton, Ont., have seen a decrease in the average number of days and appearances to disposition for a criminal case between 2010 and 2011, the review found.

At the remaining courthouses — Etobicoke, Old City Hall, and College Park — the number of days to disposition has actually increased or the figures have remained largely stagnant. At College Park, for example, that figure jumped to 290 days in 2010 from 221 in 2007, an increase of 31 per cent.

Min Gerretson responded to the Times piece, saying that more funding was needed. He also expressed concerns over the omnibus crime Bill C-10, which would create additional costs by jailing offenders for longer periods.

The general public can already get legal information and/or advice from public legal education websites or from legal clinics and pro bono groups.

Some city councils in the United Kingdom are going one step further. Birmingham and Westminster are teaming up with videoconferencing firm Instant Law UK to offer free legal advice via webcam in public libraries:

"The plan is now to be in 100 locations within 12 months and 360 locations in 24 months. Though it will continue to place kiosks in those shopping centres which have already been identified – with three set to launch at the end of January – the focus is now on libraries. Services will in time be extended to cover non-legal issues such as debt problems."

"Users will access the service through a dedicated computer screen and webcam in a secure location in the library."

It will be interesting to watch this experiment as it unfolds. Will Canadian public libraries follow suit?

Corporate/commercial law accounts for the third highest number of legal malpractice claims in Ontario, after real estate and civil litigation. An article in the January edition of the LAWPRO Webzine examines the causes of these claims in detail, and tells lawyers what they can do to reduce their exposure to claim in this area of law. This post reproduces the portion of that article that dealt with communications-related claims – the biggest cause of claims in the corporate-commercial area.

Over the last ten years, corporate/commercial-related claims (including bankruptcy, tax, and securities-related claims) averaged 14 per cent of LAWPRO’s claims count (279 claims per year), and 23 per cent of our claims costs ($14.9 million per year). While there has been some fluctuation, the number of claims in this area has remained consistent over this time period, while the cost of resolving claims in this area has increased. On average, resolving a corporate/commercial claim cost LAWPRO $53,340 over that period.

As the the above chart shows, the main cause of claims against corporate/commercial lawyers is a breakdown in communications. The relative proportion of corporate/commercial claims and the types of errors that occur in other Canadian and U.S. jurisdictions mirror the claims experience in Ontario.

Communications errors fall into three general categories:

• A failure to inform the client or obtain the client’s consent;
• A failure to follow a client’s instructions; and
• Poor communication with the client.

A review of common fact scenarios for each type of error will give you a better understanding of why these errors happen and the steps you can take to avoid a communications-related claim.

Failure to inform client or get consent

The most common type of communications error on corporate/commercial files – 28 per cent of communications-related claims – involves a failure to obtain the client’s consent or to inform the client. Examples of this type of error include:

• Failing to explain to a client the consequences of a personal guarantee in a commercial lease, mortgage or other transaction involving security. Failing to make it clear that the client is personally responsible for the borrower’s debt.
• Failing to specify the limits of the retainer in writing. Failing to specify in writing which services the lawyer will perform and which things the client will do. For example, if you are involved in a transaction that includes the dissolution of a corporation, ensure that the client is aware of – and agrees to undertake – any final-year filings outstanding after the termination of your retainer.
• Failing to state in writing that a client has not provided sufficient information to complete the retainer on an incorporation and organization of a corporation. Do not allow the client to develop the mistaken impression that the incorporation is proceeding when it is stalled.
  Failing to set out in an accompanying letter the limited purpose of a draft document, together with instructions that it is only to be used for the specified purpose and may not be suitable for other purposes.
• Failing to clearly and unambiguously inform a client in writing that you are declining to act on a particular matter, either because of a conflict of interest or because you don’t practise in that area.
• Failing to recommend that the client retain another lawyer to handle that matter. For example, if tax considerations might influence the choice between two different courses of action, but you don’t have enough tax expertise to take these considerations into account, document your recommendation that the client obtain tax advice. If the client wants you to take a course of action without the recommended tax advice, document that instruction.
• Failing to clearly and unambiguously inform a client in writing that you are terminating the retainer and failing to recommend that the client find another lawyer. Failing to clearly and unambiguously spell out any tasks you will not be completing and that the client needs to do or retain another lawyer to do.
• Failing to inform a franchisor client about the disclosure requirements under the Arthur Wishart Act and the severe consequences of inadequate disclosure.
• Failing to inform a franchisee client about the disclosure requirements and rescission remedies under the Arthur Wishart Act.

Failure to follow client’s instructions

A “failure to follow client instructions” is the second most common communications related error and accounts for 35 per cent of communications-related claims. It really amounts to nothing more than a simple failure to follow a client’s specific instructions.

The most frequent scenarios for this error include:

• Failing to file the requisite notice of change form to remove the old officers and directors when a company is sold. (Failure to do so could, for example, leave the former directors on the hook for tax or other liability.)
• Failing to ensure that all the clauses in a commercial offer to lease are carried over to and appear in the final form of commercial lease.
• Performing additional services for the client that the client did not specifically ask you to do but doing so carelessly, for example, making unsuccessful or incomplete attempts to terminate existing tenancies on behalf of a vendor or purchaser in connection with a commercial lease transaction.

Poor communication with client

Poor communication with the client is the third most common communications-related error and causes 24 per cent of this type of error. Common scenarios for this error include:

• Failing to ensure that the client understands what you are telling him/her and that you understand what he/she is telling you, particularly if there is a language barrier.
• Failing to ensure that the client understands clearly what you will be doing as the lawyer and what the client is responsible for doing.
• Failing to establish clearly who your client is, e.g., where two or more family members have an interest in the transaction.
• Making assumptions about a long-standing corporate client’s intentions and instructions without confirming these in writing. A long-standing relationship is no substitute for clear communication.
• Failing to document in writing that a client instructed you to take a different course of action in a corporate transaction from the one you recommended.
• Failing to include restrictions on the use and applicability of your advice in an opinion letter, including details of any qualifications or limits to the opinion.
• Also, a failure to document the assumptions upon which your advice in the opinion letter is based.

AVOIDING COMMUNICATIONS ERRORS

As a means of avoiding communications-related claim, the value of carefully documenting instructions, advice, and steps completed cannot be overstated. While the failure to have written confirmation of instructions and advice is not negligence in and of itself, such written communication can be extremely helpful in defending you in the unhappy event that a claim is made against you (or you are the target of a law society complaint or you are defending your account before an assessment officer).

Why is having something in writing so helpful? Because more often than not, this type of claim involves the lawyer recalling that one thing was said or done, or not said or not done, and a disappointed or upset client who alleges something different. These claims are very hard for LAWPRO to defend successfully, because they tend to come down to a question of credibility. Judges tend to prefer the client’s evidence, as the client usually has a much better recollection of what transpired and what was said.

Remember, most clients are involved in relatively few corporate/commercial transactions in their lifetimes, and they are more likely to remember specific details about what happened. By contrast, lawyers who have handled hundreds of corporate/commercial matters often have little or no specific recollection about what happened on a specific transaction, especially one in the distant past.

Unfortunately, we frequently find inadequate documentation in the lawyer’s file to back up the lawyer’s version of what occurred. We frequently see files with no notes or correspondence documenting what was said and done, and on occasion, even files with no reporting letters whatsoever.

Communications-related errors are among the easiest to prevent. You can significantly reduce your claims exposure by documenting your work. Confirm the information that your client provided to you, your advice to the client, the client’s instructions to you, and what steps were taken on those instructions. Document the time spent reviewing the file and note what issues were discussed with the client. This documentation can take the form of notes to the file, marginal notes on draft documents, comments in interim or final reporting letters, or even in an email message. Admittedly, you can’t document everything on every file, but taking the time to document unusual things or issues that seemed to concern the client can be very helpful in the event of a claim, especially if you have a difficult or demanding client.

Some corporate-commercial lawyers do not track or docket the time they spend on files. This is a shame, as there are two benefits of doing so. First, by tracking lawyer and staff time, you can determine the actual amount of time you are spending on each file – a critical piece of information for determining the profitability of the transactions you complete. Secondly, even taking just a few seconds to make detailed dockets can be a lifesaver in the event of a claim. “Conference with client re need for more information to complete incorporation and organization of Acme Widgets” is much better than just
“Conference with client re Acme Widgets incorporation”; “Conference with client re consequences of signing personal guarantee in Smith Co. financing” is much better than just “Conference with client re Smith Co. financing.” Weeks, months or even years after a deal is completed, detailed dockets such as these can serve to confirm that particular issues were discussed with the client.

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You can't totally eliminate the risk of a malpractice claim. However, you can substantially reduce your risk of a claim by improving your lawyer/client communications and documenting your work.

For details on the other types of claims in the corporate/commecial area, you can read the rest of the LAWPRO Webzine article here.

Today AvoidAClaim posted about three new fraud scams that lawyers alerted us to. All were similar to other scams we have seen in the past.

• A commercial debt collection scam by Grenham Donal Falley
• A breach of contract scam by Chan Li
• A collaborative family law agreement scam by Michelle Eley

This goes to show that the frausters are always at work coming up with new names, new email addresses, and new variations of the same scam to keep ahead of our efforts to publicize the information. See our Fraud Fact sheet for all the information you'll need to help spot the red flags of scams like these.

In late December the Law Society of England & Wales issued a practice note setting out a number of guidelines for solicitors concerning social media.

The note, clearly aimed at tyros in the social media scene (which will likely include most lawyers, whether there or here, I'd guess), begins by asserting that social media offer the professional benefits of marketing, interaction with clients, networking, and public education, and present risks such as "the blurring of the boundaries" between professional and personal lives. As well, social media activity is seen as possibly testing the principles of integrity, independence, and maintaining public trust.

Much of what follows in the note seems trite and trivial from the perspective someone who's been as involved with social media as I have been; but, as I say, the target appears to be lawyers who are only now considering putting a toe into the water, and for them this may have some value, if only as a formal recognition by the Society that media such as Twitter and Linkedin exist and may be useful for lawyers.

Perhaps most value can be found in the ultimate recommendation that a firm considering engaging in social media should "consider having a policy in place" (I would have said, simply, "should") that addresses a number of key points such as "strategy", rules of "engagement", training and the like. At the end of the day, the note might be described as a recommendation that lawyers and firms think before they act publicly, which is no bad thing.

[hat tip: @jordan_law21]

For some reason Yeat's poem The Second Coming bubbled up in my mind when I read an article based on an interview with the incoming chairman of the UK bar, Michael Todd in the Law section of the London Times recently. These lines of the poem in particular –

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world…"

I don't suppose Yeats was foreshadowing the turf war between barristers and solicitors much, or that he was particularly worried about it. But promoters of a Canadian model of legal services in which advocacy is a specialty, should keep a learning eye on what is happening in the UK.

According to the article, the last hallmarks of the two branches – barristers and solicitors – are being removed.

Always above the financial fray, relying on solicitors to be responsible for their fees, barristers are now contemplating new rules that would allow them to handle the client's money.

What's more, there are plans to allow the public to retain barristers directly, instead of through solicitors.

According to the article, modernization of the way in which barristers provide their services does not go down well with solicitors.The last major struggle between the professions was in the 1980's when solicitors were given extended rights of audience in the courts. Barristers then allowed fellow professionals to brief them directly, not through solicitors.

Who knows where this will end. There does seem to be an evolution towards the Canadian model, but the F word – fusion – is apparently not yet in the cards: "People can go to solicitors for general advice but if specialist advice is needed they can come to us" says Todd.

Whatever way it emerges, whatever shape it takes, a model in which some lawyers specialize in advocacy and therefore have lower overheads, will offer the public greater advocacy experience for their dollar.

Over the last four days there has been a massive spike in bad cheque frauds targeting lawyers in across Canada (BC, Ontario and Quebec), the U.S. (NC, NY) and several other countries around the world (including Australia, Fiji, Italy, Scotland, Sweden, Turkey and the U.K.).

Almost 300 lawyers notified us that they received an initial contact message on one of these frauds. As LAWPRO would receive reports on a fraction of the attempted frauds, it would appear that thousands of lawyers have been targeted over the last four days. Several thousand lawyers have visited the AvoidAClaim blog for more information on these frauds.

Roughly half the frauds reported to us were from someone purporting to be Nan Zhang of NPI Lease Company Limited seeking help on a breach of lease matter.

About one third were from someone purporting to be Kiyoshi Yukio of NPI Lease Company Limited seeking help on a breach of lease matter.

We have several reports of someone purporting to be Jane Zhu of China Harbour Engineering Company Limited seeking help on a breach of lease matter.

This was the first time we have seen this lease scam and all three of the above names are new to us as well. In this bad cheque fraud the ‘customer’ accused of breaching the lease agreement will quickly send a (counterfeit) cheque for damages to the lawyers office, and the lawyer will be asked to wire the funds (minus fees and costs) to an offshore account. Click on the above links for more details on these scams. These email messages on them were more convincing than some of the ones we have seen in the past as they are personally addressed to the lawyers they were sent to (not BCC messages sent to large numbers of people).

Over the last four days we also received several reports of attempted frauds using names and scams we have seen many times before including:

• Zaira Hoshiko re collecting a spousal support payment from her ex-husband Allen Hoshiko further to a Collaborative Law Agreement.
• Brianna Shunshi re collecting a spousal support payment from her ex-husband Bill Shunshi further to a Collaborative Law Agreement.

If you have been targeted by these or similar frauds, please forward any of the emails and supporting documents that you have received to fraudinfo@lawpro.ca.

and not help one's expert witness consulting practice

One bit of advice young lawyers are given - much easier to follow in the brave new world of reasons for judgment online and so easily searched – is to look for cases in which judges have commented on the expert's objectivity. The words in square brackets are my interpolations for clarity.

From a trial decision not too long ago, about a witness who testified for the side that ultimately won at trial but lost on appeal.

•  Dr. S. called by the Plaintiffs, was qualified as an expert to give opinion evidence in the following areas:
• Dr. S. has the following formal educational background …. [DC: a bunch of degrees including 2 bachelor of science degrees, an LLB, LLM and SJD. I pointed out the last two degrees to a colleague who has them, too, from the same source. ]
• Dr. S struggled to find anything …. [that certain defendants] did that would be complimentary to them….
•  I thought it peculiar that, despite curbing his areas of expertise during the qualification process, he insisted on returning to the forbidden areas ..
• He further said, “It’s the personal responsibility of everybody, everybody is engaged in doing health and safety and they know how to think about risks and figure out what the reasonable thing to do is in the circumstances.”
•  Dr. S had duties so extensive for each person in the chain, from the CEO down to the workers, that there was little likelihood of any time remaining for production … .
• Dr. S was obsessed with the … X Report … which the Court did not have the benefit of and which on the face of the evidence was a generic model with little or no practical application … [DC to the defendant about whose conduct the expert was testifying] as Dr. S held little knowledge of the mining industry [DC: the industry of the defendant]
• [DC: The experts suggestion as to what might have been done to alleviate some of the problems that led to the incident that resulted in the injuries] … is not even a ripple in a windstorm but rather a theory divorced from reality …
• As I listened to Dr. ’s evidence and latterly studied his report, I was driven to focusing on his lack of objectivity and practicality …
• In the result, Dr. S's evidence was a collection of anachronisms and clichés; an academic approach with little or no application to [the defendant] at the relevant time, directed solely to criticism of [the defendant's] operation, all of which demonstrated little value and assistance to the Court because of its utopian viewpoint.

Ouch.

Other than that, the trial judge had no issues with the expert's evidence.

Bear in mind that this is only one judge's view about the witnesses evidence in this case. But, if the trial judge was right, and if we're to assume the problems with the witnesses evidence were that blatent that they ought to have been known before the trial, then why did the very competent plaintiffs' lawyers call that wtiness?

He might have been all they had on the issue. Sometimes you have to go with the person you take to the dance.

The case is easily found by those of you who know how to look. There is no purpose served by posting the citation.

Trello, from Joel Spolsky's Fog Creek Software, is a really nice tool for organizing a project, collaboratively, and for free.

Launched back in September, I just found out about the software today reading and interesting note he wrote showing the difference between vertical and horizontal software products.

This looks like it might be a big help in law offices, and anywhere teams need to collaborate on multifaceted projects.

This could be The Year of Access to Justice in Canada. Whether it is a good year or a bad year for Access to Justice is TBD. The fate of Access to Justice is to be determined by governments, by the courts, by the legal profession and yes, by lawyers ourselves.

Dark Clouds on the Horizon: Justice Budgets 2012

In 2012, we are likely to see serious fiscal pressures on Access to Justice through budget freezes or cuts to legal aid plans, courts and other justice programs. Serious cuts to legal aid have already been proposed in the UK and there is job action in British Columbia protesting against a decade of cuts. With massive budget deficits at the federal and provincial levels, justice budgets are likely to be on the chopping block. For example, in Ontario the latest figures for 2010-11 show that the Ministry of the Attorney General (MAG) had expenditures of almost $1.44 billion. The largest single expenditure consisted of transfers to Legal Aid Ontario of $320 million or a whopping 22% of the MAG budget. If each Ministry is asked to find 10% in savings, Ontario's MAG will have to come up with $144 million in savings. Where is this going to come from? Not from fighting crime or from victims services in all likelihood. Ministry of Finance officials always target legal aid for savings precisely because it is the single largest expenditure in the justice budget.

Thus, Government is not going to be the answer to Access to Justice in 2012. But neither are the courts likely to provide much in the way of solutions. The courts have contributed more in the way of rhetoric than in concrete solutions to the access problems.

Solutions: Lawyers – Heal Thyselves . . . and the Justice System

Solutions – if they are to be found, must come from the legal profession itself. As the Governor-General implored us in August at the CBA's National Legal Conference in Halifax:

We in the legal community have a responsibility to take the lead in reforming the court system for the public good; remember our oath to “improve the administration of justice.” Justice delayed is justice denied. Or, as Joseph Howe pointed out: “He who delays or withholds justice excites discontent and sedition; [the King] would tell them that they were the rebels.

In further posts, I will discuss potential solutions from the courts and from the profession. Welcome to 2012!

When Heather Peters was dissatisfied with the proposed class-action settlement for her 2006 Honda Civic hybrid, which didn't provide the promised fuel economy, she opted for Small Claims Court instead.

She is taking Honda Motor Co. to court this Tuesday in in Torrance, CA for $10,000, the new limit in California starting January 1, 2012, which by far exceeds the $100 and rebates she would have received from the class action. Best of all, the rules of the jurisdiction require Honda to provide an employee representative who is not a lawyer,

Small Claims Court is a special court where you can resolve disputes cheaply and quickly. Small claims rules and procedures are more simple than in other courts. The hearing is informal. There is no jury. Parties represent themselves without lawyers.
[emphasis added]

Choosing the small claims venue helps Peters fight on what she considers a more even footing, without any lawyers involved. But the real reason she is making this move is that she is hoping to inspire other 500,000 people in the proposed settlement. The Los Angeles Times states,

If she's successful in getting others to follow her example, Peters could inspire a whole new litigation strategy in the auto industry and other businesses. Working together but filing lawsuits independently, consumers could force companies to go mano a mano with individual plaintiffs in far-flung courtrooms nationwide.

Call it a small-claims flash mob.

They indicate that this strategy has only become possible because of information sharing ability through the Internet and social media which allow for plaintiffs to compare tactics and assist in pleadings, and that mass fillings could become a trend. Peters' website is DontSettleWithHonda.org, and her Twitter handle is DontSettleWithHonda.

A favourable outcome at trial may also convince Honda to increase its settlement amount in the class action to dissuade members from going the same route before February 11, 2012, when claimants have to make their decision.

The one small catch is that Peters is not totally inexperienced with legal proceedings. She is herself a former lawyer who let her license expire, so representing herself may not be as intimidating as it would be for others. But it could also be practicing lawyers acting in an administrative role and motivated by social justice who could coordinate similar small-claims flash mobs in the future and transform litigation strategy entirely.

A copy of Peters' claim is available here.

Subjective top ten lists are great for starting arguments given the improbability of any two people sharing precisely the same worldview. It's a little tougher to engender heated debate over objectively measured top ten lists, but not impossible. After all, we can still dispute methodology and relevance! I invite Slaw readers to infer meaning and to offer analysis of the results.

So with that, I'm pleased to present for 2011 the top 10 most consulted cases on CanLII.

1. Bruni v. Bruni, 2010 ONSC 6568
2. Indalex Limited (Re), 2011 ONCA 265
3. Dunsmuir v. New Brunswick, 2008 SCC 9
4. Bedford v. Canada, 2010 ONSC 4264
5. R. v. Grant, 2009 SCC 32
6. Kerr v. Baranow, 2011 SCC 10
7. R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103
8. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
9. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817
10. Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217

Bruni rated 18,641 views and the Secession Reference came in at 5,105.

To get a sense of scale, compare these numbers with the 1000^th most consulted case – which still attracted nearly 500 views.

Graphically, the results of the top 1000 most consulted cases present as a "long tail" (or for the mathematically inclined, as an asymptote).

(Click on image to enlarge)

Among cases actually decided in 2011, the top 10 looks like this:

1. Indalex Limited (Re), 2011 ONCA 265
2. Kerr v. Baranow, 2011 SCC 10
3. JM (Re), 2011 CanLII 7955 (ON CCB)
4. Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196
5. United Food and Commercial Workers' International Union, Local 1518 v. British Columbia (Labour Relations Board), 2011 BCSC 455
6. Voltage Pictures LLC c. Untel, 2011 CF 1024
7. Ontario (Attorney General) v. Fraser, 2011 SCC 20
8. R. v. J.A., 2011 SCC 28
9. Ontario Korean Businessmen's Assoc. v. Seung Jin Oh, 2011 ONSC 6991
10. Withler v. Canada (Attorney General), 2011 SCC 12

Indalex amassed a remarkable 17,433 views and Withler a respectable 2,825.

The graphical representation of the top 1000 among cases decided in 2011 is indistinguishable from the above chart (save for the Bruni peak). The honour of 1000^th most consulted case falls to Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2011 ABCA 29 with 341 views.

Background and miscellanea: 

• CanLII's operations have been continuously funded by Canada's provincial and territorial law societies (and by extension, Canada's lawyers and notaries) since 2000 to allow legal professionals and the public to access primary legal information at no direct cost.
• CanLII's database contains over 1 million documents and is on track to a record year of receiving nearly 7 million visits and delivering over 80 million page views
• While most documents on CanLII are decisions of courts and tribunals, page views of legislation and regulation outstrip page views of cases by a sizeable margin. For example, monthly Criminal Code page views exceed 20,000 and monthly views of the Code civil du Québec exceed 15,000.
• CanLII is widely used by the legal profession (over 95% of lawyers responding to our fall mini-survey reported at least weekly use), but as a freely available tool its non-lawyer users are legion. Monthly unique visitors are routinely over 200,000. Consequently, the results might be considered a barometer of public interest, as well and possibly more so, than as one of legal significance.
• A "view" or "consultation" of a document is measured as the interaction of an individual with the case URL. Mere appearance of a case in a list of search results will not constitute a view, but opening it to inspect it will. Similarly, where a user subscribes to RSS feeds and a case appears in the list, the case view does not take place until it is opened.
• Results above aggregate views for a given decision across formats (PDF or HTML) and across French and English.
• No French language case cracked the overall top 10, but one, Voltage, ranked among decisions issued in 2011. Originally issued in French, and subsequently released in English as well, French language views alone would have placed this case at number 7
• Standings measured as of December 20^th. If it turns out that thousands of Canadians spend the holidays reviewing the December 22^nd SCC decision on the Securities Reference, I will gladly update the list accordingly so that historians might have an accurate record of the case law that most concerned Canadians in 2011.

I read Steve Matthew's Slaw.ca column today Web Law Predictions for 2012 with great interest. I noted especially the prediction that "Firms Abandon Content, Blame Subsequent Failures on Social Media," with the implication that firms can't just by-pass creating great blog content and expect to get traction and otherwise build their reputations online.

One great start to blogging is to think about commentary that would have previously gone out via newsletter or email to clients, and make that available on the internet via a blog. However, writing for the printed text and writing for the web are two different things.

Write for your audience

First, you must consider your audience. Who are you writing for–lawyers? Or clients? Lawyers tend to like text-heavy documents, but most other audiences do not. If you are writing for clients, do not assume they will have time or the inclination to read long tracts.

Have a look at what else your audience reads and figure out what appeals to them. Perhaps video is the way to go instead with the audience you are trying to appeal to? It is very possible that clients in different industries consume content in different ways and prefer their content in different formats.

Make blog posts more readable

It can be more difficult to parse text online, and so we use a number of techniques to break up text for a blog:

• Consider breaking up a longer written article into a few smaller blog posts. You will get more mileage out of the content, and it will be easier for your audience to dip into.
• Use smaller paragraphs. I am always surprised at how a standard paragraph looks so long in a blog post. You will likely need to break these down more than you otherwise would think necessary. For example, the first two paragraphs in this blog post were originally one, but when I previewed them as a blog post, looked far too dense and so I broke them up.
• Use headings and bulleted or numbered lists inside longer blog posts to help the reader easily scan the content.
• Consider putting key words or phrases into bold to make them stand out, as I have done with this bulleted list.
• Use images to make blog posts more visually interesting. There is an interesting post today from Problogger: How to Use Images in Your Blog Posts. It is a nice introduction to using images.
• Use other media such as audio and video to lend some variety to your content. Selecting a video from another source, dropping it into your blog post with the "embed code," and then adding your own commentary to it is a nice way to change things up. If you get daring, you can try creating your own audio or video content. However, for a professional setting I suggest getting professional assistance to learn this part since it can be difficult to do well and is therefore time-consuming to get started on your own.

Vary the content

You need to keep the audience interested and engaged. Writing just commentary about recent case law is probably not going to keep them coming back for more. (I am assuming you want them to come back!) Don't forget to add a personal touch, lending a human voice with some personality. As audiences, we relate far better to other people than we do to faceless organizations.

Here are some additional ideas for content, and no doubt you can think of many more:

• discussion of newly introduced legislation
• other developments in the industry, such as new requirements from government
• what you learned at a conference or seminar
• a summary of recent surveys or report findings
• upcoming events
• a good, related article you read and your additional comments
• a review of a related book
• an interview with someone in the industry

What other types of blog posts do you like to read or write?
Image: courtesy of brainloc via stock.xchng

This was how David Sterns, one of the panel members at an OBA civil litigation session last week, described the Ontario Court of Appeal's 5 December judgment interpreting the new summary judgment rule. (See Simon Chester's post last week for a good description of the amendment and the decision.)

Despite all the energy and resources being devoted in our modern system of civil justice to mediation, alternative dispute resolution and most recently judicial dispute resolution, in its 111 page judgment in Combined Air and four other cases, the Court of Appeal reinforces the primordial elements of the trial in our system of civil justice. As Peter Griffin, another panel member put it, the court is saying that in this province "We are in the trial business."

The central message of the Court of Appeal's decision is that the summary judgment motions court cannot dispense with a trial unless it is "in the interests of justice" to do so:
"…the aim of the civil justice system is to provide a just result in disputed matters through a fair process."

The Court emphasized (para 59) that the amended rule is not to be interpreted as creating a summary trial – a summary judgment motion does not constitute a trial. The Osborne report on civil justice reform recommended adopting a summary trial mechanism but it was not adopted.

The purpose of the new power to call oral evidence on a summary judgment motion is to assist the motions judge in making the determination as to whether any of the issues raised in the action require a trial for their fair resolution. The power must not be understood as permitting summary or mini trials. The power,

amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with summary disposition rather than requiring a trial.(Para 60)

While there is a role for expanded summary judgment procedure,

…a trial is essential in certain circumstances if the interest of justice is to be served. (para 45)

The Court went to great pains to describe the importance of the trial process in attaining justice. A trial gives the judge "total familiarity with the evidence". The judge participates in the dynamic, sees the witnesses, asks questions when in doubt, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses, not via affidavits drawn by lawyers. The judge's involvement gives greater assurance of fairness. A trial allows the parties to present their evidence in the manner their advocates choose. This may have an impact on the outcome. (See paras 46 – 49).

The Court of Appeal has now made it perfectly clear that where the interests of justice require a trial, in Ontario parties cannot be deprived of one by summary judgment.

Two things follow.

First , where the interests of justice require a trial, and a party has elected to proceed to trial after unsuccessful mediation, it is contrary to the interests of justice for the party to be subjected to further compulsory, emotionally draining, expensive mediations and pretrials.

Second, unless the parties agree, it is contrary to the interests of justice that they should be made to speak, or have their witnesses subjected to questioning at pre-trials or mediations. This annihilates the parties' control of the conduct of their trial.

'Tis the season for law firms (and no doubt others) to send out season's greetings by email, most often accompanied by the usual wordy and sometimes bilingual notices that the content of the email may be confidential, privileged and subject to diverse prohibitions that we are more or less politely admonished to comply with.

Here's a typical, though polite, version (French omitted):

CONFIDENTIALITY NOTICE: The contents of this electronic mail message are confidential and strictly reserved for the sole use of its intended recipients. This message may contain information protected by the solicitor-client privilege. If you receive this message in error, please notify the sender immediately and delete the original message as well as all copies. Any disclosure, copying, distribution or reliance on the contents of the information is strictly prohibited. Thank you.

This year I have seen one that despite its economy of expression has an element that's new to me: a copyright claim. It's in an email whose subject line is "Happy Holidays from Your Friends at [Big Law firm]" and besides the medium-tech 'e-card' to which it links, its only content is this (I omit the French):

"This e-mail message is privileged, confidential and subject to copyright. Any unauthorized use or disclosure is prohibited."

The usual question arises whether it is helpful to claim privilege in something that is clearly not privileged, or whether that undermines one's assertion of privilege when the content really is privileged.

The new question, for me, is why one asserts copyright. Copyright arises automatically in our law, though possibly protecting it internationally would be helped by an assertion – but doesn't the Berne Convention require the use of © to do that, and a date?

Is the idea to prevent recipients from borrowing/pirating/emulating the firm's finely honed expression of its legal work (assuming charitably that it did not insert the copyright claim solely into its holiday greetings)? Given the amount of borrowing from long-standing and widely-distributed precedents in legal drafting, does that really hold water anyway? I suppose emails are not usually drafted using the forms books…

Is it an attempt to prevent people from posting online cease-and-desist notices that law firms send out to people who their clients think have defamed them? It is becoming common for such letters to show up on the recipients' web sites, partly to expose what the recipients perceive as bullying, and partly to laugh at the pomposity of some of the writers. (Drafters of such letters, take note.)

Is there a new problem that this new notice is aimed at resolving, or is it just another cautionary note from a profession that is good at detecting risk and trying to avert it? Or is it a bit of overkill?

[This is the text (updated for SLAW) of a Fraud Alert that LAWPRO sent to Ontario Lawyers December 15, 2011.]

LAWPRO continues to see high numbers of bad cheque frauds targeting lawyers across Canada and the U.S., as well as several other countries around the world. On a monthly basis, 250-300 lawyers advise us that have been targeted by bad cheque frauds. We are seeing the same types of scams over and over again, and on a weekly basis we are seeing two or three new fraudster client names. And these frauds are becoming more sophisticated. Very experienced lawyers have been successfully duped. One of the most convincing frauds we have seen, an IP licence dispute scam involving a client named Dan Nagasakii from CCP Group International, has been reported to us several times over the last few weeks.

Be extra vigilant as we approach the Christmas and New Years holidays! From past experience, we know that fraudsters are more active just before long weekends and holidays.

Bad cheque frauds continue to be the most common type of attempted fraud we are seeing. These otherwise legitimate-looking legal matters create circumstances to dupe a lawyer into quickly disbursing funds on a bad cheque or bank draft that was deposited into a trust account. The fraudster gets real money and the lawyer is left with a trust account shortfall. Common scenarios include the payment of spousal support arrears, business debt collections, and personal injury settlements. The amounts involved on these frauds are typically around $250,000, but can range much lower or higher than this figure.

This AvoidAClaim blog post lists the common red flags of an email fraud scam.

To help lawyers identify fraudulent matters, LAWPRO is posting information on individual confirmed frauds on the AvoidAClaim.com blog. Click the Confirmed Frauds button to see a full list of the names of confirmed fraudsters. For each confirmed fraud there are individual postings that allow you to see the actual back and forth communications between lawyers and fraudsters. You’ll also find images of the fake supporting documentation the fraudsters are supplying, including identification, bad cheques and bank drafts.

You can help us help other lawyers avoid being duped by forwarding copies of the emails and supporting documents that you receive on any fraud attempt to fraudinfo@lawpro.ca.

Keep your guard up

Some of the fraud attempts are very obvious: Poor spelling, bad grammar and/or completely untenable fact circumstances (e.g., multi-million dollar lottery wins or inheritances) should sound alarm bells.

However, some frauds are extremely sophisticated and look like completely legitimate legal matters. Both new and very experienced lawyers have been temporarily fooled into working through file opening and initial stages of the matter before they recognized or determined they were the target of a fraud. Unfortunately, some lawyers are being duped by these frauds and they are finding themselves dealing with significant trust account shortfalls. Don’t be complacent and don't think you wouldn't be fooled by one of these frauds. The fraudsters go to great lengths to create scenarios that otherwise appear to be legitimate legal matters. Recently we have seen several matters that originated with phone calls, direct and personalized emails or through firm website intake forms. The fraudsters are prepared to engage in extensive and ongoing communications over weeks and even months, usually by email, but also by phone, and on occasion, even in person. Here is an example of communications that went back and forth over several weeks. They will provide information, names and addresses that are tied to your local area.

How to handle a real or suspected fraud

If you have been targeted by any of these frauds, please forward any of the emails and supporting documents that you have received to fraudinfo@lawpro.ca.

If you suspect you are acting on a matter that might be a fraud and you are an Ontario lawyer, call LAWPRO at 1-800-410-1013 (416-598-5899). We will talk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. If the matter you are acting on turns out to be a fraud and there is a potential claim, we will work with you to prevent the fraud and minimize potential claims costs. If you have been successfully duped, please immediately notify LAWPRO as there may be a claim against you.

If you suspect you are acting on a matter that might be a fraud and you are not an Ontario lawyer, call your insurer, Law Society for direction on how to handle the matter.

For more immediate updates on fraud and claims prevention, subscribe to the email or RSS feed updates from LAWPRO’s AvoidAClaim blog.

Fraud Fact SheetMore fraud prevention information and resources are available on the practicePRO Fraud page, including the Fraud Fact Sheet, a handy reference for lawyers and law firm staff that describes the common frauds and the red flags that can help identify them.

The English media came back this weekend to re-examine the health of Thomson-Reuters and reached wildly different conclusions. The BBC talks of Thomson moving to establish hegemony over business data, whereas the Guardian focuses on the weaknesses of post-merger integration and the long-term challenge that Bloomberg presents.

The doyenne of the DC law library community, Jean O'Grady has a fascinating piece suggesting that Thomson may well acquire Wolters-Kluwer

Her analysis is:

Factors Favoring Such a Merger

1. Thomson Reuters Leadership Changes.Exane BNP suggests that TR appears to be "in restructuring

and crisis mode" since they failed to achieve top line growth through some new products including Westlaw Next.. The new CEO Jim Smith with his track record in legal, tax and scientific professional publishing may be better positioned to create new value from asset consolidation than top line growth.

2. Wolters Kluwer May be Ready to be Acquired. Former WK executives suggest that a merger has always been viewed as a good exit strategy if top line growth could not be achieved. CEO and Chairperson Nancy McKinstry has been in the Netherlands for 8 years and has not delivered expected revenue growth.

3. TR's new IT  Platform Designed for Mergers. Since both companies generate over 80% of their revenue from electronic software and services, TR has the infrastructure to allow both companies to consolidate and reduce their IT costs. Apparently TR's new IT platform was specifically designed to be able to integrate content from acquired companies. I have also heard this comment  from insiders at TR. (I whole heartedly agree that at least in the US, WK's technical infrastructure as demonstrated by their "new " Intelliconnect platform would benefit from an IT overhaul). Both companies have been trying to go global and have expanded their sale forces in some new and similar markets. The proposed merger would allow them to reduce duplicative effort in expanding their global footprint.

4. TR's Balance sheet is Ready. TR's balance sheet has absorbed the Reuters acquisition and the company  now has the financial capacity to launch such an acquisition over the next 12 months.

But remember that Bloomberg bought BNA for $990 million in August. Meanwhile Techbytes reminds us that Thomson and Bloomberg's fates are inextricably linked.

It concludes:

Perhaps it’s time for Thomson Reuters to take their cue from Bloomberg and migrate from the costly dedicated terminal to a web platform in order to meet the changing needs of its customers. The legal market underwent tremendous changes in platforms between the 1980s and the 1990s, as user demands, technological advances, economic changes and ultimately the practice of law changed. Legal terminals morphed from huge dedicated stand -alone machines, to small customized boxes dubbed “ubiqs”, to multi-purpose personal computers. Lexis and Westlaw survived the loss of monthly revenue from equipment and created other revenue streams. Executive turnovers, reduced demand for some of its products, and mergers and changes in divisions have all befallen Thomson Reuters. Maybe this is the time to re-engineer the way its products and services are packaged, delivered, and priced to the financial market. Tune in for the next installment.

The Daily Beast describes (in apocalyptic terms) Bloomberg's Plan for World Domination. The Law Librarian Blog suggest that Bloomberg's hunger for content makes Reed Elsevier's Lexis product the likely target for a Bloomberg acquisition.

Anyone think that antitrust might constrain concentration in these sectors of the information industry?

Can a copyright owner enforce his rights in small claims court? The answer varies depending on which side of the 49th parallel you are on. In Canada, yes! In the U.S., no. Perhaps this is about to change. The U.S. Copyright Office is accepting submissions from the public until 16 January 2012 on remedies for copyright infringement suits in small claims courts. U.S. Congress has asked the Copyright Office to investigate and seek comment on how small copyright claims have been managed in the past and to outline recommendations for changes and alternatives to current procedures.

This is not the first time this issue has arisen in the U.S. A report was tabled by the Copyright Office to the U.S. House of Representatives, 109^th Congress, 2^nd session on March 29, 2006. As part of their investigation of orphan works, the question of alternative mechanisms for pursuing copyright infringement cases was brought forward by photographers who had no resources to sue in federal court. In this report, the U.S. Copyright Office agreed to study the issue and to report to Congress the findings as to whether and to what extent copyright holders have been hindered from pursuing legal action and if the current system is not effective, what changes in law would be necessary. The report also outlined seven topics for information collection and also indicated four alternatives which might be available.

The advantage of small claims court is that it is often speedier than other courts and costs can be minimized since plaintiffs often represent themselves without the aid of a lawyer. You are only eligible to sue in small claims court if the monetary compensation being claimed is within a certain limit. For example, this amount is $25,000 in Ontario.

In my 26 September post here I touched on the issues raised by judicial mediation.

On 9 December the OBA presented a full day program on the topic.

Four panels covered the interprovincial landscape and experience, the Ontario experience, the private mediation landscape and perspectives, and finally the client's perspective. Two breakout sessions considered the pros and cons, and the essential elements of good judicial mediation.

Of particular interest are the developments in Judicial Dispute Resolution in Alberta.

The Alberta new rules of court which came into force in Alberta on 1 November 2010 make JDR (or another form of dispute resolution) mandatory before trial. There has been great demand for JDR. The backlog for trials has decreased such that a civil trial of 3 weeks or less can now be accommodated within 3 – 6 months. It often takes more than 6 months to obtain a JDR date.

In Alberta JDR proceedings, judge-shopping is the rule and is encouraged so the parties will get a judge whose style, reputation and expertise will maximize the chances of settlement.

What I detected at the Policy Day was a general feeling among Ontario lawyers (certainly in the break out group I attended), that any rule change that results in an increase in the number of settlements enhances access to justice and enhances the reputation of the administration of justice.

There was talk of "facilitative mediation" (entirely interest based, without any evaluation of rights), "evaluative mediation" (which does consider rights) and binding mediation, which is set up as for a summary trial on affidavit evidence and proceeds to mediation, with the parties agreeing in advance that if there is no settlement they will accept the ruling of the JDR judge.

I heard for the first time about something called the "Trial-Like Settlement Conference". These would be held in a courtroom off the record, in camera. The parties describe the evidence they would present at trial. They are questioned by their own counsel and opposing counsel, but not on oath. They make submissions. The judge meets the parties or counsel together or, separately "in caucus". "At an appropriate time" the judge expresses opinions on the issues, or declines with explanation.

Those in support of JDR generally encourage counsel on both sides to see their roles as joint problem solvers. "What a novel idea",writes Mr Justice R.A. Graesser of the Alberta |Queens Bench in a paper prepared for the Alberta Civil Trial Lawyers Association, "and how powerful that can be when both (or all) counsel are focussed on working to find solutions rather than fearlessly advancing their respective clients' positions!" (Emphasis in the original.)

In Justice Graesser's view, "JDR advocacy as well as mediation skills will overtake civil trial advocacy in importance, if it has not already done so."

Does the arrival of JDR call for any change to the oath Ontario barristers take to protect their client's rights and interests, or the LSUC motto "Let right prevail"?

Ontario's Auditor General tabled 2011 Annual Report in the Legislative Assembly today. Features of the report included:

• Auto Insurance Regulatory Oversight
• Electricity Sector—Regulatory Oversight
• Electricity Sector—Renewable Energy Initiatives
• Electricity Sector—Stranded Debt
• Forest Management Program
• Funding Alternatives for Family and Specialist Physicians
• LCBO New Product Procurement
• Legal Aid Ontario & Office of the Children’s Lawyer
• Ontario Trillium Foundation
• Private Career Colleges
• Student Success Initiatives
• Supportive Services for People with Disabilities

Of particular interest to the litigation bar in Ontario was the Auto Insurance Regulatory Oversight, reviewing the operation of the Financial Services Commission of Ontario (FSCO) and the auto regime here.

The report emphasized the need of government to balance financially stable auto insurance with affordable and reasonable premiums that provide fair and timely benefits, as administered by the Superintendent of Financial Services. However, the report noted that the average injury claim in Ontario was about five times more than the average claim in other provinces, resulting in much higher premiums here, despite having one of the lowest per capita rates of automobile-accident deaths and injuries in the country.

Claims under the Statutory Accident Benefits Schedule (SABS) rose 150% between 2005 to 2010, even though the number of claims only increased by 30% for this period. Claims in the GTA specifically rose higher than the rest of the province, largely due to a concentration of plaintiff representation, resulting in higher premiums in the city.

The report indicated that it was too early to determine whether the 2010 changes to SABS, which I detailed previously here, had been effective. But they also noted that FSCO does not have any meaningful measure of its success. FSCO indicated that they expect 50-60% of SABS claims to fall under minor injuries, which are now capped at $3,500.

The report provided the following recommendations:

1) In order to ensure that the Financial Services Commission of Ontario (FSCO) can effectively monitor Ontario’s auto insurance industry, particularly claims costs and premiums, and recommend timely corrective action to the Minister of Finance when warranted, FSCO should:

• implement regular interim reviews of the Statutory Accident Benefits Schedule to monitor trends such as unexpected escalating claims costs and premiums between the legislated five-year reviews, in order to take appropriate action earlier, if warranted;
• monitor ongoing compliance with the interim Minor Injury Guideline, expedite the work to develop evidence-based treatment protocols for minor injuries, and identify and address any lack of clarity in its definitions of injuries;
• implement its plans as soon as possible to obtain assurance that insurance companies are judiciously administering accident claims in a fair and timely manner; and
• examine cost-containment strategies and benefit levels in other provinces to determine which could be applied in Ontario to control this province’s relatively high claims costs and premiums.

2) To reduce the number of fraudulent claims in Ontario’s auto insurance industry and thereby protect the public from unduly high insurance premiums, the Financial Services Commission of Ontario (FSCO) should use its regulatory and oversight powers to:

• help identify potential measures to combat fraud, including those recommended by the Insurance Bureau of Canada and those in effect in other jurisdictions, assess their applicability and relevance to Ontario, and, when appropriate, provide advice and assistance to the government for their timely implementation; and
• ensure development as soon as possible of an overall anti-fraud strategy that spells out the roles and responsibilities of all stakeholders— the government, FSCO, and insurance companies—in combatting auto insurance fraud.

3) To ensure that the Financial Services Commission of Ontario (FSCO) fairly and consistently authorizes auto insurance company premium rate changes while protecting consumers, FSCO should:

• update and document its policies and procedures for making rate decisions—particularly for applications that differ from its own assessments—and for properly assessing rate changes in light of actual financial solvency concerns of insurance companies;
• review what constitutes a reasonable profit margin for insurance companies when approving rate changes, and periodically revise its current assessment to reflect significant changes; and
• establish processes for verifying or obtaining assurance that insurers actually charge only the authorized rates.

4) To ensure that the Financial Services Commission of Ontario meets its mandate to provide fair, timely, accessible, and cost-effective processes for resolving disputes over statutory accident benefits, it should:

• improve its information-gathering to help explain why almost half of all injury claimants seek mediation, as well as how disputes are resolved, and to identify possible systemic problems with its SABS benefits policies that can be changed or clarified to help prevent disputes; and
• establish an action plan and timetable for reducing its current and growing backlog to a point where it can provide mediation services in a timely manner in accordance with legislation and established service standards.

5) In order to provide the public, consumers, stakeholders, and insurers with meaningful information on its auto insurance oversight and regulatory activities, the Financial Services Commission of Ontario should report timely information on its performance, including outcome-based measures and targets that more appropriately represent its key regulatory activities and results.

6) To ensure that the Motor Vehicle Accident Claims Fund (Fund) is sustainable over the long term and able to meet its future financial obligations, the Financial Services Commission of Ontario should establish a strategy and timetable for eliminating the Fund’s growing unfunded liability over a reasonable time period and seek government approval to implement this plan.

7) In view of the fact that it has been five years since the last review of the assessment of healthsystem costs owed by the auto insurance sector despite the significant increase in health-care costs related to automobile accidents over the same period, the Financial Services Commission of Ontario should work with the Ministry of Finance, the Ministry of Health and Long-Term Care, and the insurance industry to review the adequacy of the current assessment amount.

FSCO has provided written responses to each of these recommendations, which is also included in the report.

Last month the Federation of Law Societies of Canada released a long-awaited Report on Conflicts of Interest prepared by its Standing Committee on the Model Code. This was the third attempt by the Federation with previous reports prepared by a Special Advisory Committee on Conflicts of Interest in June 2010 and in February 2011. The Federation settled the conflicts issue except for the thorny conundrum of current client conflicts. A copy of the almost-finished Model Code is available here. If this report is adopted by the Federation's National Council it will mark the completion of the Model Code (which was substantially completed in March 2011). More on specific issue of conflicts of interest to follow below.

The Federation's Model Code has been adopted by the Law Society of Alberta (effective November 1, 2011), the Law Society of Manitoba (January 1, 2011) and the Nova Scotia Barristers Society (effective January 1, 2012). Other provinces are expected to follow in 2012. Each province may retain local variances but the vast majority of the provisions will become uniform across Canada. In an age of national and international mobility, this makes eminent sense for lawyers, law firms, regulators and clients.

The controversy over conflicts of interest dates to the Supreme Court of Canada's decision in R. v. Neil, 2002 SCC 70 where Justice Binnie established "a bright line rule" providing "that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other." (para. 29). This sentence has caused great consternation in the legal profession and led the CBA to create a Task Force on Conflicts of Interest which produced a 284 page report in 2008 which includes an excellent Toolkit for lawyers and law firms on how to deal with avoiding conflicts.

The members of the CBA Task Force parted company with Justice Binnie over the necessity and the advisability of "the bright line rule" and recommended against its adoption in the CBA Code. The CBA Code was amended and took a different, more lenient approach to conflicts of interest between current clients. The Federation did not accept the CBA approach and hence the three reports by it on the issue. If you are interested in more details of what I describe as a decade long "battle over conflicts of interest in Canada" you can read my upcoming article here.

"In many ways a trial, like skydiving, is not inherently difficult; however both can be terribly unforgiving of the slightest inattention."
"Courting Justice", David Boies (Hyperion -Miramax 2008)

Referral advocacy is a model by which court advocacy is undertaken by a specialist bar to whom other lawyers refer as needed.

Lawyers who refer to specialist advocates lose the headaches of trial work, the havoc it wreaks on a practice, and the responsibility for an unfavourable outcome. Yet they gain the ability to offer their client specialist advocacy services at more predictable cost, and the client's gratitude when the outcome is favourable.

There is no risk that the referring lawyer will lose the client: the referred advocate will only accept a retainer to provide advocacy services. All other litigation services remain within the broader retainer of the referring lawyer.

Referral advocacy also resolves a conflict that is generally not articulated in civil litigation. If the message in the above quotation is accurate, and given its source it should be, the less experience a lawyer has with trials (or other contentious steps in which rights are finally determined), the less comfortable he or she will be with them, and the more inclined to avoid the step because of the significant prejudice resulting from a negative outcome. This compromises negotiating strength. Referral to a lawyer who specializes in court advocacy may not guarantee victory, but it certainly relieves the negotiating lawyer of pressure. It can also strategically intimidate an opponent.

"An understanding of the trial process is the unique skill of the trial lawyer and that skill is derived from the courtroom."
(Advocates Society Task Force on Advocacy, June 2004)

There are also cost benefits to referral advocacy. Specialist advocates need less back-office overhead. They take less time performing the task because of their specialization.

And then there is the question of incentive: a referred advocate feels only as good as their last case. Their business is repeat referrals.

The Canadian legal profession has taken to specialization with alacrity in most areas, but not when it comes to court advocacy.

What is the reason? Is it that historically we have always qualified our lawyers both as solicitors and barristers, so the referral model is not within our repertoire? Is it that we doubt specialization means better results, or better chances?

In these days of dwindling trial experience, is it time to consider referral advocacy?

The Ontario provincial government's decision to terminate all of the permanent Masters' Registrar positions, and to have other people do their jobs (with per diem registrars in Court and other government employees performing the other job functions of the Registrars) has been noted and commented upon by Sam Marr, TLA President. He has written to Lynne Wagner, Assistant Deputy Attorney General and Lynn Norris, Director, Court Operations (Acting) after learning of these developments.

Below is an excerpt from Mr. Marr's letter:

Masters play a vital role in the administration of justice in this city. They have unparalleled and unsurpassed expertise in the Rules of Civil Procedure and in the management and trial of Construction Lien Act matters. They provide vital case management functions in complex multi-party cases. They conduct settlement conferences in simplified procedure actions, they handle the lion's share of procedural motions and, I expect, most members of the civil litigation bar have more contact with the Masters, and their Registrars, than with judges. It is fair to say that the Masters work is the 'bread and butter' of civil practice in Ontario. Any impediment to the smooth operation and functioning of the Toronto Masters' Office will inevitably lead to costly and expensive delays in Toronto's civil justice system.

Historically, each Master had his or her own Registrar, who sat with the Master in court, scheduled matters, conducted data entry and interfaced with the Bar and self-represented litigants. I have personally had many opportunities to deal with the Registrars and I can attest to their professionalism and the vital role they play in ensuring that Masters’ courts run smoothly, and that justice is carried out quickly, efficiently and fairly.

It has very recently come to our attention that the provincial government, as far I know with no consultation with the Bar, and virtually no consultation with the Masters, unilaterally decided to terminate all of the permanent Registrar positions, and to have other people do their jobs (with per diem registrars in Court and other government employees performing the other job functions of the Registrars).

Due to the judicial role of the Masters, they cannot aggressively or publically engage the government in debate. As members of the Bar it is our role to advocate for them, and for us, to ensure the public interest is protected.

We understand the fiscal pressure the government faces in this difficult economic environment. However, the justice system is a core government service, and the Masters are central figures in that service, without which justice cannot be dispensed in Toronto. More consultation should have occurred before the terminations were announced.

Having said that we want to make sure that as you now enter a new phase in this process, you consult with the Masters and the Bar as to how the system can work better. There may be efficiencies we can think of that you have not considered. It is also vital that you carefully consider the Masters' requirements so that any “new system” and staffing allocations be done in a way that minimally disrupts the Masters' working environment and ensures the most efficient delivery of justice to the citizens of Toronto. As just one example we must ensure that those assigned to the Registrar in Lien court are familiar with the unique issues and functions of the Registrar in posting monies and bonds to vacate construction liens.

 I would be pleased to attend a meeting with you and the Masters to canvass these issues.

I thought that Slaw readers might be interested in this observation by BLG partner, Norman Letalik, as a result of his recent exchange with Apple Canada's regional counsel. (The following quotation is from an email thread in a group to which I belong and is reproduced with Norm Letalik's permission.)

Note that I have now had a telephone conversation with Ms. Famulak, who is regional counsel for Apple Canada. She confirms that the information that is dictated on the Apple iPhone 4s using the Siri dictation feature is sent to servers that reside in the US and that Apple, its related companies and agents have access to the contents of what is dictated. She did not wish to opine on whether Apple's ability to access dictated client communications would breach legal privilege in Ontario or elsewhere. So, the best practice would be not to use the dictation feature on an iPhone 4s for any dictated information to which you intend legal privilege to attach. Note as well that Apple's dictation servers are located in the US, so the dictated information may also be scanned for national security purposes by the US Government pursuant to powers given to it under the Patriot Act.

In his request to Ms Famulak, Mr. Letalik noted that lawyers "likely did not read your 364 pp user agreement document carefully enough to understand the implications of the above terms and conditions."

The problem with privilege in this context is explained by Professor Adam Dodek, a new contributor on Slaw, in his February 2011 discussion paper for the Canadian Bar Association, "Solicitor-Client Privilege in Canada: Challenges for the 21st Century":

As the House of Lords has stated, the sine qua non of privilege is confidentiality: “Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement.” The CBA has issued “Guidelines for Practicing Ethically with New Information Technologies,” which declares that “Lawyers should exercise the same care to protect the confidentiality and privilege of electronic communications as is normally expected of them using any traditional form of communication.”
PDF, at p.48 (footnotes omitted)

Certain knowledge that a communication is open to others to read may ipso facto prevent the attachment of privilege.

Serving as a director of a charitable or not-for-profit corporation can be a rewarding but potentially risky experience. A director can be held personally liable for his or her own actions or failures to act, as well as jointly and severally liable with the other members of the board of directors. Directors with specialized knowledge and expertise, such as lawyers, are held to a higher standard of care. Ontario lawyers should note that LAWPRO’s standard professional liability insurance policy provides coverage only for the “professional services” that a lawyer provides as a lawyer. It does not provide coverage for liability arising as a result of a lawyer’s actions as a director. If you are from another jurisdiction, check and see what is covered under your malpractice policy.

Accordingly, here are some questions you should ask yourself before serving as a director on the board of a charity or not-for-profit organization.

1. How well do I know this organization? Does it engage in activities that have an especially high risk of attracting legal liability?
2. What are my motivations for joining this board – business, personal, community service, etc.?
3. Will I be able to devote my time and energy to ensure that I fully meet my obligations in this role?
4. Do I understand the risks and responsibilities that come with directorship? Am I aware of the statutory and common law liabilities that I may be exposed to?
5. Does my firm have a policy regarding its lawyers serving on the boards of charities and not-for-profits?
6. Is the charity or not-for-profit organization a client of my firm? If so, does my firm have a policy regarding its lawyers serving on the boards of charities and not-for-profits that are clients of the firm?
7. Will the charity or not-for-profit organization agree to indemnify me for liability arising out of my role as director?
8. Does the charity or not-for-profit organization maintain directors and officers (D&O) insurance to protect me from personal liability arising out of my role as director?
9. If so, what are the details of this D&O insurance? What policy terms, conditions and exclusions are likely to apply? What are the limits of liability per claim and in the aggregate?
10. Is there an outside director liability (ODL) insurance policy in place that may respond to claims against me arising out of my directorship? If not, should I purchase such insurance, whether from the Canadian Bar Insurance Association (CBIA) or through my insurance broker?
11. Is there any other insurance in place or optional coverage that may be purchased that may cover my activities as director? Have I consulted my insurance broker? (Note: LAWPRO’s optional excess insurance policy does not provide incidental D&O coverage, but some excess professional liability insurance policies may do so. If so, does that coverage “drop down” to afford primary protection?)

Carefully review the above checklist if you are considering sitting on a non-profit board. This will allow you to make an informed decision about whether the benefits outweigh the risks.

An electronic version of this checklist is available at http://www.practicepro.ca/practice/pdf/Nonprofit_board_risk_management_checklist.pdf

Jean Cumming, the dynamic and innovative Editor-in-Chief of L'Expert – The Business Magazine for Lawyers, has just circulated this Press Notice issued by the UK Supreme Court regarding court dress to her Twitter followers. It would appear that common sense regarding wearing apparel is slowly making its way into the court system, at least in the U.K.

Press Notice

Revised guidance on court dress at the UK Supreme Court

The President of the Supreme Court has today announced that advocates appearing before the Court or the Judicial Committee of the Privy Council may, by agreement, dispense with any or all of the elements of traditional court dress.

A practice has already been adopted in family cases under which advocates customarily appear unrobed. The UKSC/JCPC User Group, which represents professional users of the Court, has asked whether this option can be extended to advocates in other cases. The Justices agree that this development would further underline the Court’s commitment to providing an appropriate environment for considered discussion of legal issues, and is in line with the Court’s goal to make this process as accessible as possible.

The Justices of the Court do not wear legal dress themselves and have decided not to impose this obligation on advocates appearing before them. In future, provided that all the advocates in any particular case agree, they may communicate to the Registrar their wish to dispense with part or all of court dress. The Court will normally agree to such a request.

It is anticipated that while some advocates will not wish to take advantage of this dispensation, others may prefer to reduce their legal dress to a simple gown, or to appear without legal dress at all.

This 2005 legislation was enacted to improve accessibility for persons with disabilities. Customer Service Standards adopted under the Act are effective on January 1, 2012 for providers of goods and services, including law firms. The Law Society has created a guide which is meant to assist legal service providers in developing the resources to comply with the Standards. The guide and suggestions for compliance with the Standards can be downloaded from the Law Society website and found in Appendix 1. This is an obligation imposed by the Province that must be observed to respect those with disabilities and avoid unfortunate consequences.

Siskinds LLP launched the first individual civil suit last Friday against Baer for its birth-control products Yasmin and Yaz. From the CBC:

Yasmin, which is made by Bayer Inc., is one of Canada's top-selling birth control pills. It is a so-called "fourth generation" hormonal contraceptive and is considered "low dose."

The announcement of the suit, launched Friday in London, Ont., comes ahead of the U.S. Food and Drug Administration's public hearings on the oral contraceptive scheduled for Dec. 8 in Maryland.

The FDA's reproductive health and drug safety committee will be looking at the safety of Yasmin and its unique progestin, drospirenone.

When researching the case on the firm's website, I noticed a related class action launched on March 10, 2010, accompanied by a professionally-produced YouTube video on the case of October of last year, available here.

There are a number of notice requirements under the Ontario's Class Proceedings Act, which allow the court to determine notice by "means that the court considers appropriate."

Given the broader reach of the Internet for the public, we'll likely see these types of videos used as a primary or part of the means of notice in the future. Video production could be an important area of growth for marketing agencies working closely with law firms, and for in-house communications staff for some of the larger firms.

♫ Gonna be your man in motion, all I need is a pair of wheels
Take me where my future's lyin', St. Elmo's Fire…♫

Lyrics and Music by David Foster and John Parr, written for the Canadian athlete Rick Hansen.

The Law Society of Upper Canada, pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 ("AODA") has released their Guide to Developing a Customer Service Accessibility Policy.

This guide is to assist law firms in Ontario in developing the resources to comply with the Customer Service Standards [The Accessibility Standards for Customer Service Regulation (the Customer Service Standards) was adopted in 2007 under the AODA, and are effective on January 1, 2012 for providers of goods and services.] The goal is to make Ontario accessible by 2025 for everyone, including persons with disabilities.

Provider of legal services [including paralegal firms, legal clinics, legal departments and legal non‐profit organization] must establish accessibility policies and plans, in addition to incorporating accessibility criteria. Private sector organizations, including law firms, must comply with the relevant requirements under the Integrated Accessibility Standards at the latest on January 1, 2014, except for a few sections that are effective January 1, 2012.

The Customer Service Standards apply to law firms with one or more employees in Ontario that provide goods or services either directly to the public or to other third parties (they do not apply to services provided internally within a law firm). There are additional requirements for law firms with 20 or more employees that are not imposed on smaller firms.

The range of services to members of the public that fall within these standards include:

• meeting with clients;
• providing corporate legal services to clients;
• representing clients before courts and tribunals;
• maintaining professional relationships with other lawyers and paralegals;
• delivering education programs;
• holding business development and social events.

The policies, practices and procedures to be adopted by the law firms must be consistent with the following principles:

•The goods or services must be provided in a manner that respects the dignity and independence of persons with disabilities;
• The provision of goods and services to persons with disabilities must be integrated, unless an alternate measure is necessary to enable a person with disabilities to obtain the goods or services;
• Persons with disabilities must be given an opportunity equal to that given to others to obtain the goods or services.

There is a great deal of information in the Guide including the requirements for training programs, feedback processes, documentation and the like. Fortunately there is a Sample Policy precedent included which should provide guidance to law firms in adopting and tailoring the requirements to their own law firm culture to take them where their future is lying.

The Pennsylvania Bar Association’s Committee On Legal Ethics And Professional Responsibility has just released Formal Opinion 2011-200, Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property

As the PA Bar keeps its Ethics Opinions behind a member wall, I’ve attached a copy of it to this post. One of the Committee members has told me I am free to distribute it.

This Opinion indicates that lawyers may ethically allow client confidential material to be stored in “the cloud” provided the lawyer takes reasonable care to assure that (1) all such materials remain confidential, and (2) reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks.

Clearly, a lot of time and thought was put into the drafting of this Opinion. There is good background information on the issues and concerns that come up when client information in stored the cloud and when web-based mail services are used. There is also a summary listing of the ethics opinions in this issue from the ABA and other states and entities.

This Opinion considers both the practical and technology-related issues that are raised when lawyers use cloud-based services. While this Opinion is specific to PA Bar Rules of Professional Conduct, lawyers in other jurisdictions will find the information on what care and steps would be considered “reasonable” helpful in directing their own actions. It is nice to see there is a strong emphasis on lawyers being ultimately responsible for making informed decisions about the benefits and risks of placing client data in the cloud. The storing of client data can be outsourced, but the responsibility for making sure it is safe and secure remains with the lawyer.

We all like to avoid thinking about bad things like earthquakes, tornadoes and other natural disasters. We also tend to avoid thinking about other things that might impact on our personal and professional lives. However, major and minor disasters abound, are a fact of life, and will occur whether we like it or not, due to natural causes or by human error or malicious actions.

And while major natural disasters are typically the ones that get the most attention and headlines, even minor disasters – a burst pipe in the server room or the sudden and unexpected departure of a law partner or key law firm staff member – can cause significant harm to a law firm. Fortunately, with some planning and preparation, the potential harms that disasters can cause can be mitigated, and even avoided, in many cases.

The ABA Committee on Disaster Response & Preparedness just released Surviving a Disaster: A Lawyer's Guide to Disaster Planning. It is a detailed 44 page step by step guide on disaster planning for law firms. It will assist law firms in creating and implementing a business continuity plan. It introduces you to the key components of a continuity plan that will make sure the critical business functions of your firm can continue in the event of a major disaster or minor unexpected practice interruption. The Guide has a number of checklists that reviews the factors to be considered and the steps to be taken in both preparing a plan and responding to a disaster.

You can find additional disaster planning resources are at www.americanbar.org/disaster.

The North Carolina State Bar has revisited its proposed Formal Ethics Opinion (FEO) on cloud computing and addressed many of the concerns the legal cloud computing community had previously expressed.

The main point of concern with the previous opinion was a list of minimum mandatory requirements that an attorney had to ensure was met by their cloud computing provider. In an open letter to the NC State Bar, the Legal Cloud Computing Association outlined its concerns with the proposed FEO; prominent bloggers such as Carolyn Elefant, Stephanie Kimbro, Erik Mazzone and Niki Black also outlined their concerns about the potential implications of the FEO as written.

The NC State Bar had published the proposed FEO for comments, and to their credit they listened carefully to the feedback they received and have re-issued an updated Proposed 2011 FEO 6 that addresses many of the concerns the LCCA and others had expressed relating to the previous draft.

The NC State Bar has eliminated the mandatory minimum requirement "checklist" from the opinion, rightly pointing out that such checklists are fraught with issues:

This opinion does not set forth specific security requirements because mandatory security measures would create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.

Instead, the proposed FEO opts for a more flexible set of due diligence requirements:

This opinion does not set forth specific security requirements because mandatory security measures would create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.

Although a lawyer may use nonlawyers outside of the firm to assist in rendering legal services to clients, Rule 5.3(a) requires the lawyer to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the professional obligations of the lawyer. The extent of this obligation when using a SaaS vendor to store and manipulate confidential client information will depend upon the experience, stability, and reputation of the vendor. Given the rapidity with which computer technology changes, law firms are encouraged to consult periodically with professionals competent in the area of online security. Some recommended security measures are listed below.

• Inclusion in the SaaS vendor’s Terms of Service or Service Level Agreement, or in a separate agreement between the SaaS vendor and the lawyer or law firm, of an agreement on how the vendor will handle confidential client information in keeping with the lawyer’s professional responsibilities.

• If the lawyer terminates use of the SaaS product, the SaaS vendor goes out of business, or the service otherwise has a break in continuity, the law firm will have a method for retrieving the data, the data will be available in a non-proprietary format that the law firm can access, or the firm will have access to the vendor’s software or source code. The SaaS vendor is contractually required to return or destroy the hosted data promptly at the request of the law firm.

• Careful review of the terms of the law firm’s user or license agreement with the SaaS vendor including the security policy.

• Evaluation of the SaaS vendor’s (or any third party data hosting company’s) measures for safeguarding the security and confidentiality of stored data including, but not limited to, firewalls, encryption techniques, socket security features, and intrusion-detection systems.4

• Evaluation of the extent to which the SaaS vendor backs up hosted data.

The NC Bar's proposed FEO, like the ABA 20/20 Ethics Commission Proposals, makes the "reasonable care" standard the baseline to be adhered to, and affirms that a lawyer's duty to protect the confidentiality of client data "does not compel any particular mode of handling confidential information nor does it prohibit the employment of vendors whose services may involve the handling of documents or data containing client information."

The new proposed FEO strikes the right balance of providing guidance to the Bar's members without overly restricting technological freedom. The opinion, as written, can serve as a model for other Bars looking to provide increased clarity on the ethics of cloud computing to their membership.

In Canada there are companies that provide "litigation financial services" for personal injury, class actions and many other types of claim. These "Plaintiff's Loans" are generally up to 10% – 20% of the value of the claim. No payments of principal or interest are required until the settlement or judgment is paid. If the amount recovered is insufficient to repay the loan, some lenders hold the borrower liable for the balance. Other lenders make non-recourse loans in Canada.

The loans made by these Canadian companies are frequently to personal injury plaintiffs and in the region of $10,000 – $20,000.

In the UK there is a development towards litigation financing for bigger stakes. Investec Specialist Private Bank , a division of a financial network founded South Africa, last week announced it has become the first British bank to invest in commercial court disputes. The minimum funding is 250,000 pounds. Investec offers this service, "…in response to response to increasing demand for innovative funding solutions from law firms and their clients" according to its press release.

Parties that want to hedge their bets against costs awards if they lose, or who need financial assistance to bring a case can apply to Investec for funding in exchange for a cut of the winnings. The bank is aiming to help clients who have strong cases but are not prepared to risk the cash flow required to pursue them. The availability of litigation funding can go a long way towards bringing about a settlement.

Another firm in this line of business is Guernsey based Juridica Investments. Juridica is a source of direct financing for large business claims in the United States and one of the leading sources in the United Kingdom. Its website states,

"Our simple goal is to provide business clients with financial choices that reduce risk and assist in maximizing claim value."

The approach is to monetize business claims and transfer the risks associated with pursuing them so they can be treated as a corporate asset.

Supporters of third party litigation funding argue it improves access to justice. If so, it is being improved at both ends of the financial spectrum.

♫ 'Cause these things will change, can you feel it now?
These walls that they put up to hold us back will fall down
It's a revolution, the time will come for us to finally win

We'll sing hallelujah!
We'll sing hallelujah! Oh…♫

Lyrics, music and recorded by Taylor Swift.

TLABC Rally in Robes Protest Poster

While the #OccupyVancouver (the movement's twitter hash tag) goes to the Supreme Court of British Columbia again today for a resumption of the injunction hearing by the City of Vancouver, a different type of protest is just getting underway.

The two groups could not be more different. On one hand, we have protestors occupying tents on the grounds of the Vancouver Art Gallery, issuing a list of 28 "Demands" (see: Occupy Vancouver Demands Released) and exercising their rights to a (hopefully) largely peaceful protest. These Occupy Vancouver protestors are a motley crew and the general consensus is that they have largely failed at presenting a united, cogent and persuasive list of suggested changes that address their list of demands.

The second group is not camping outside in the rain. They are not holding ceremonial fires or jostling journalists. They are coordinating a province-wide withdrawal of (adult) legal aid duty counsel services (criminal).

The schedule for the withdrawal of services is as follows:

• No one will accept a duty counsel referral for January 1-7, 2012.
• No one will accept a duty counsel referral for February 1-14, 2012.
• No one will accept a duty counsel referral for March 1-21, 2012.
• No one will accept a duty counsel referral for April 1-30, 2012.

The Trial Lawyers Association of British Columbia is coordinating this protest through its Legal Aid Action Committee. Lawyers who support the aim of restoring legal aid funding are asked to wear a ribbon demonstrating their support for the cause. Azool Jaffer-Jeraj, President of the TLABC has issued a letter that provides further details and contact information.

Of course, when lawyers are involved with a protest, ethical issues abound. We will see how the court, the public and those accused of offences view the withdrawal of legal aid services.

Since all protests now have a social media aspect, I guess we will have to develop a twitter hash tag for this protest. I suggest #BCLegalAid. One thing seems to be clear; when lawyers protest, it is indeed a revolution…

We've talked a bit before on Slaw about Matthew Butterick's great book, Typography for Lawyers, copies of which should be found wherever lawyers' thoughts are committed to print (digital or otherwise). Now Butterick's created Equity, a typeface specifically for lawyers. He says, in an article in Co. Design, that he designed Equity:

to be every bit as space-efficient as TNR [Times New Roman], but eminently more readable—and a tad sexy. “I wanted Equity to be like a navy-blue Armani suit: a classic updated with contemporary virtues.”

The typeface includes 24 fonts—a face is a design and a font enables the expression of that design, in this case in two weights and six styles: regular, italic, bold, bold italic, regular caps, bold caps. As important, it comes with proper small caps to let you avoid the terrible result of using Word's "small caps" feature.

You can see Equity in action in a PDF of various documents that use it.

If nothing else, considering whether or not to use this font in your work will mean that you're paying attention to the fine details of your printed work, something that can only benefit those who want to read it.

This article originally appeared in the Fall 2011 issue of LAWPRO Magazine. All issues of the magazine can be found at www.lawpro.ca/magazinearchives.

Technology is becoming an ever greater part of our lives, both personally and professionally. On a daily basis most of us use a cellphone or smartphone, a desktop computer and the Internet. Many of us will have an iPad or other tablet device and be posting updates on Facebook, Twitter or other social media tools.

Clients expect their lawyers to be technology literate – and there are always new and improved ways for communicating with clients. Here are some newer tools that you can consider using to better serve and communicate with your clients.

1. Help clients find your office

   How often do you find yourself giving new clients directions to your office? Google Maps offers a great tool for creating a map that will show clients the location of your office. Go to maps.google.com and type your office address into the search box. Click on the link icon (look for an icon with three chain links at the top right corner of your screen). This will open a pop-up that will give you a URL link you can use to access that same map. Send that link to new clients via email and they can see the map. The pop-up also gives you the HTML code you can use to include the map on your website. Take it a step further by creating customized maps to show clients directions to other places that might be helpful for them (for example, the local court house).

2. Electronic intake forms

   In many areas of practice, collecting background information is the main purpose of an initial meeting with a client. Wouldn’t this be easier if the client came to your office with a standard intake form already completed?

   Adobe Acrobat (the Standard and Pro versions) makes this possible by giving you the ability to create an electronic PDF client intake form which you can email to your client. The client can print it to fill out a paper version or better still, can complete it onscreen and send it back to you electronically. The client just needs the free Adobe reader software.

   And don’t limit yourself to the intake process – consider converting other paper forms you have in your office. Acrobat has a form conversion tool that does a fantastic job of converting paper forms into electronic ones.

3. Virtual meetings

   Virtual meeting tools let you collaborate across the web in ways that are just as effective as face-to-face meetings, while helping you significantly reduce time and travel costs.

   These tools let you show the contents of your computer screen to multiple people via the Internet. You can create a document much more quickly when everyone can simultaneously view and comment on the draft as it evolves. In a single phone call you can draft and finalize a document that normally might take many emails and redrafts over days or weeks to create. These tools are easy to use and you can set up a virtual meeting on an ad hoc basis in the middle of a conference call in a matter of minutes.

   GoToMeeting (www.gotomeeting.com), WebEx (www.webex.com) and Acrobat Connect (www.adobe.com/products/adobeconnect.html) are the most widely used virtual meeting tools. Pricing for the basic versions of these products is around $50 per month. Some of them have trial or limited use versions that you can use for free. If you avoid just one in-person meeting a month, you are more than paying for them. I have GoToMeeting installed on my laptop, and it allows me to host a virtual meeting from anywhere I have an Internet connection.

4. Free long distance

   Voice-over-IP or “VoIP” phone systems can save on long distance charges, but they are expensive to buy and set up. However, if you have a high-speed Internet connection and your computer has a soundcard and microphone, you can try VoIP for free with Skype (www.skype.com) or Google Talk (www.google.com/talk).
   You can use these tools to communicate with audio and video over the Internet. While not suitable for every area of practice (and you will on occasion experience poor voice or video quality and dropped calls), some lawyers are using Skype or Google Talk to avoid long-distance charges – both improving the bottom line for their office and making clients happy about avoiding long-distance charges for calls to their lawyer. While some social media tools offer similar functionality, it is probably safer not to use them for the sake of protecting client confidentiality.

5. Find time for a meeting

   Trying to schedule a meeting with multiple people via email is inefficient and annoying – few things are better at filling your inbox with totally unnecessary messages. Next time you need to find the best time slot for a meeting, consider using online tools such as GatherGrid (www.gathergrid.com), WhenIsGood (www.whenisgood.net) or Doodle (www.doodle.com).

   These tools vary slightly in how they present the options for the timing of a meeting (i.e., giving you full days of available time vs. offering specific time options), but they all work in more or less the same way. Go to one
   of these sites and create a meeting event. Then indicate potential times and dates for the meeting and provide the email address of each person who needs to come. Finally, initiate an email that goes out with a link that will give all invitees a calendar showing them the possibilities. Once invitees indicate whether they are available or not, the meeting organizer can go to the calendar to easily see the best time for the meeting. Some of these tools also let you send a meeting invitation that will automatically put an entry into an Outlook or other electronic calendar.

   Use one of these tools next time you need to schedule a meeting: your client will really appreciate how quickly and easily you can tie down the date and time for that meeting.

6. I’m thinking of you

   Marketing experts tell us we need to do things to stay top of mind with clients. The free Google Alerts service can help you do this. It allows you to monitor the web for interesting new content and it will send you an email listing of relevant Google results (news, website content, etc.) based on your choice of query or topic.

   Some handy uses of Google Alerts include:

   • being notified when your name or your firm name appears in the news or on the web;
   • being notified when your client’s name appears in the news or on the web;
   • monitoring a developing news story; and
   • keeping current on a competitor or industry.

   To create an alert, go to the Google Alerts page (www.google.com/alerts) and enter a text string that contains the name of the person or topic that you want to monitor (for example, your name, your firm name, a client’s name or industry). Google Alerts will send you an email alert listing Google news or web search results based on the terms that you specified. You can configure it to deliver the alerts to you instantly, daily or weekly. On the news side, it searches several thousand news sources that the Google News page indexes. On the web search side, it searches all the web pages that the Google search engine indexes.

   When you get an alert about something that would interest one of your clients, take a minute to send them a quick email with a link to the news item or webpage.

As the other articles in this issue highlight, regular communication with your clients is a cornerstone of a solid lawyer-client relationship. Consider how you can use the tools listed above to better serve and
communicate with your clients.

How far can judicial review go before it trespasses on the proper function of government and the legislature? What is the proper role of the judiciary in constraining the actions of the democratic state?

Last week, UK Supreme Court nominee Jonathan Sumption Q.C.raised these questions in a speech on the subject of the widening scope of judicial review in the UK .

He concluded by warning that if it is perceived judges are reviewing the merits of legislation, there will be pressure for some kind of democratic input into their selection. He would regard this as a very unfortunate outcome because it would politicize the bench and undermine its reputation and perceived independence.

"The judiciary cannot realistically expect to participate in the process of political decision making in a democratic constitution while remaining immune from any kind of democratic influence over their selection"

He describes the natural tension between democracy and judicial review, except where it is confined to the application of policy to a particular situation. The conflict arises where the review is applied to the propriety of the policy. Where does law end and policy begin?

Decisions of the courts on the abuse of discretionary powers, he says, "are based far more often than the courts have admitted on a judgment about what it is thought right for Parliament to wish to do."

The problem, he says, is sometimes not so much a lack of clarity in the expression of Parliament's will as a radical difference between the collective instincts of the judiciary and those of politicians facing the electoral process. The judiciary and the executive see issues from opposite ends of the telescope: judges are influenced by their experience with individual cases. Politicians are concerned primarily by the problem viewed impersonally.

Sumption argues that by giving legal effect to the Human Rights Convention in UK law, certain policy matters – particularly including penal policy, freedom of expression and immigration – have been transferred out of the political arena into the realm of judicial decision making where public accountability has no place.

The Strasbourg court he says has treated the Convention not only as a safeguard against arbitrary exercise of despotic power, but as a template for most aspects of life including matters which are governed by no compelling moral considerations one way or the other.

Sumption says the way different countries have dealt with abortion illustrates how different societies address the same issues. These are not really issues between the state and its citizens but between different groups of citizens, and are resolved by the democratic process in different ways.

In Sumption's view, parliamentary scrutiny is perfectly adequate for the purpose of protecting the public interest in the area of policy making, and it is the only way of doing so that contains any democratic legitimacy.

David S. Caudill, "Lawyers Judging Experts: Oversimplifying Science and Undervaluing Advocacy to Construct an Ethical Duty" (2011) 38 Pepperdine Law Review 674

Electronic copy available at: http://ssrn.com/abstract=1874947

The fact that judges, typically untrained in science, need to “resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise,” a “daunting task,” seems to suggest that lawyers could too. But judges do not always agree on the admissibility of expertise, and discerning reliability has proved to be controversial. To expect attorneys—and this is what the proponents of a duty to vet experts expect—to do sufficient scientific research to create their own reliability controversy, make a determination as to the ultimate reliability of their own experts, and face ethical sanctions if they err is going too far. While it is easy to choose examples that support a compelling argument for a responsibility to vet experts, the complexity of the scientific enterprise, in terms of its diverse methodologies, probabilistic conclusions, and genuine scientific disagreements, counsels against a broad, new ethical duty. Indeed, some of the arguments for that new duty seem to rest on unrealistic assumptions about science and the ease with which reliability determinations can be made. Moreover, a broad duty to vet experts would represent a serious and problematic departure from the lawyer’s role as an advocate. “ (676-677)

…..

The real problem with the proposed duty to vet expertise is the proposition that attorneys should come to a good faith belief in validity. What if I am uncertain, that is, I am not really sure if my expert physician’s opinion or the other side’s epidemiologic evidence is correct? Is that uncertainty a failure to come to a good faith belief in validity or a justifiable uncertainty arising out of a scientific controversy? One could tell me to go back to the literature to settle the controversy. But the attorney’s role as an advocate, notwithstanding its limitations in terms of duties of candor to the court, should remain particularly distinct from the judge’s and jury’s role in resolving such disputes. When Saks said that it “is hard to think of principled reasons why an attorney should not be obligated to acquire a good faith basis for believing” that proffered expertise is valid, the reasons that he missed were the complexity of a lot of courtroom expertise and the advocate’s traditional role in our adversary system. (707-08)

( Footnotes omitted in each except)