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 .

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.

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.

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.

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.

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?

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"?

"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?

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.

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.

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…

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.

My post this week comes to you from the posh Millenium Hotel in Knightsbridge, London, where the organizers of IBC's 3rd annual trust litigation symposium (brochure) have been kind enough to instal their speakers and panelists.

My panel "Caught in the Wrong & Possibly Putting it Right" is on a 2011decision of the UK Court of Appeal in two cases in which that court said the law had taken a "seriously wrong turn" over the last few decades. (My post on this decision – 12 September). The panel's job is to air views on the likely impact of the decision on trustees in the UK , Guernsey & Jersey and Canada.

Pitt and Futter were standard requests for the application of the "rule" in Hastings-Bass which the courts of first instance found themselves bound to apply. The H-B rule is based on the principle that where a trustee exercises a discretion, she can only do so validly as long as she remains within the authority granted by the deed of trust. If the trustee goes beyond those powers, the action is void. If the trustee acts within her powers but breaches a fiduciary duty while exercising a discretion, the action is voidable.

One such breach is the failure to take into account a relevant factor when exercising the discretion.

In the Futter and Pitt cases, in exercising their discretion the trustees overlooked certain legislative provisions. As a result beneficiaries suffered unintended tax consequences.

Overlooking things that result in harm to the trust is a breach of fiduciary duty. The courts of first instance found the trustees' action was voidable. The transactions were undone by application of the H-B rule. The taxes were not payable.

One of the judges at first instance had been elevated to the Court of Appeal by the time the HM tax authorities' appeal arrived there. He was then in a position to say what he really thought. Enter the "seriously wrong turn".

The appeal court held that because the Pitt and Futter trustees had relied on professional advice in taking their actions, there was no breach of fiduciary duty. Therefore the H-B rule could not be invoked. The trustees should sue their advisers instead.

A frisson rippled into the world of common law trusts litigation. The decision is on its way to the UK Supreme Court but the word on the street here is that it will be upheld.

In Canada we are fairly insulated from the effects. We don't use H-B to undo trustee action that results in unintended tax consequences. We use the same approach for anyone who finds themselves in this position: rectification. Whether you are an individual, a corporation or a trustee if you can show a continuing intent to lawfully avoid a particular tax , but because of a mistake in executing the transaction that tax is triggered, the court will not permit CRA to get the windfall, but will correct the error nunc pro tunc.

The Guernsey & Jersey courts apparently may not follow the "U turn". The Privy Council, some here predict, will respect Jersey & Guernsey's different context.

Ah the beauty of the common law system! What will be left of it when the tides of mandatory mediation have receded?

♫ You’re no one if you’re not on Twitter…♫

Lyrics, music and recorded by Ben Walker.

Kendyl Sebesta reported on Oct 31, 2011 in The Law Times that Ontario Superior Court Justice Robert Maranger has banned the use of Twitter and such tools inside his court in a high profile murder case.

His ruling permitted the use of electronic devices inside the courtroom, but only for the purposes of the taking of notes.

“Electronic devices that have the capability to transmit or receive wireless signals may not be set to ‘silent’ or ‘airport mode’ settings, but must be completely powered off,” Maranger wrote.

What is interesting about this decision is that it applied to journalists and everyone alike.

The matter surfaced earlier this month after CBC Radio-Canada filed a motion with the Superior Court requesting access to an affidavit and submission of counsel in the murder trial of Mohammad Shafia, Tooba Mohammad Yahya, and their son Hamed.

Contrast this, of course, to the Wikileaks founder Julian Assange bail hearing in the UK. The district Magistrate, Howard Riddle, ruled that reporters could send short 'twitter' messages so long as they did so quietly and did not disturb the court.

Central to the decision by Justice Robert Maranger was the effect of such devices on the court's proceedings and recording equipment.

Toronto Media Lawyer Brian Rogers is quoted as saying:

“I think the use of social media, and particularly Twitter feeds, are just a variation on the theme of people being worried about what the impacts could be,” says Rogers.

“I think those impacts can be beneficial but that you have to minimize any risks that come with it, not just simply block its use."

To be fair, the Superior Court's Technology Committee is looking into matters such as digital audio recording in courtrooms. Also, according to s. 136 of the Ontario Courts of Justice Act, journalists can’t use electronic devices to record or videotape information inside the court but they can take handwritten notes.

Even if the Court's Technology Committee allows the use of Twitter inside courtrooms, will they allow it only for journalists or for everyone? Today we have bloggers who may not be captive or freelance journalists, but who nevertheless fulfil an important function in disseminating the result of (public) courtroom proceedings. While there has been a historical distinction between journalists and the public in terms of courtroom reporting, that distinction today seems to stand on (increasingly) rocky ground. What is clear is the challenge that new technologies do, and will, pose to the conduct and protocol of court proceedings in Canada.

Imagine going into Walmart, Superstore or Loblaws to buy Halloween candy and being offered the chance to make a will or get summary legal advice on some issue. This might sound spooky or even scary to many Canadian lawyers but could become a reality in England and Wales with the launch of Alternative Business Structures (ABS) under the UK Legal Services Act. The New York Times has a great article today on non-lawyer ownership of legal services. Australia has permitted non-lawyer ownership of law firms for several years and the US is seriously considering it with the American Bar Association's Ethics 20/20 Commission. The ABA's Discussion Paper on ABS is available here. So far most Canadian lawyers and Law Societies are cool to these ideas, as the Globe and Mail's Jeff Gray reported earlier this month. With ABS a reality in Australia, coming to the UK and being mooted in the US, I don't think that Canadian Law Societies can keep their heads in the sand about this issue. To its credit, the Law Society of British Columbia released a preliminary report on ABS this month. At this time, the LSBC decided that no changes were warranted. However, all lawyers and Law Societies in Canada would be wise to heed the warnings in the last paragraph of that report: "where benefits to the consumer can be attained with proper regulation to ensure that professional values are not lost, the Law Society must develop proper regulation to allow for changes to the profession through which improved access to legal services can be attained." Happy Halloween!

We need to create an Ontario Legal Corps composed of lawyers and articling students to address the access to justice crisis in this province and we need to do it now. An Ontario Legal Corps will also go a long way to addressing the current deficit in available articling positions.

The articling crisis in Ontario is a supply-side program. It deals with the issue of the scarcity of supply of articling positions. As many judges and now the Governor General have reminded us, we have an Access to Justice crisis which is a demand side problem. The demand for legal services far outstrips the available supply as the Ontario Civil Legal Needs Project revealed.

Why not come up with solutions that attempt to match the two problems?

Clayton Ruby recently mooted the creative suggestion of paying a legal aid “articling student bonus” for legal aid work done by articling students. This is a great idea except that the prospect of any significant infusion of legal aid dollars coming from either level of government in the near future is remote. We need to keep working on governments but that is a long term strategy. In the short term, government is simply not the answer.

If we are to address the twin crises of articling and access to justice we must do so on our own. And it is in our collective interest as a profession to do so because as the Governor General warned us in August, if we fail to meet our obligations under the social contract “Society will change the social contract, and redefine professionalism for us. Regulation and change will be forced upon us—quite possibly in forms which diminish or remove our self-regulatory privilege.”

An Ontario Legal Corps – modeled along President John F. Kennedy’s Peace Corps - would provide legal services by lawyers and articling students to underserviced communities across Ontario. The idea of articling students providing legal services may be new to Ontario but it has recently been accepted by the Law Society of British Columbia.

It seems that lawyers in Ontario support articling in their rhetoric but not in their actions. In 2008, the Law Society of Upper Canada’s Licensing and Accreditation Task Force reported that that lawyers overwhelmingly wanted to retain articling. It also reported that there were only 1171 approved articling principals out of approximately 31,000 lawyers in private practice, government and corporate practice and other employment available to serve as articling principals. That is less than a 4% participation rate. The rest of the profession – including myself – is freeloading on the work of that 4% who are shouldering the burden of training the next generation of lawyers. If we believe in the need for practical training for new lawyers, we should all share in this responsibility.

Thus, out of necessity, the funding for an Ontario Legal Corps would come mostly from us, from lawyers. Under this proposal, each lawyer in Ontario would pay a $200 Access to Justice levy. With 40,000 lawyers, this will create 200 fully-funded Access to Justice Articling positions paying annual salaries of $40,000. In short, my idea is 200 articling positions for $200 per lawyer in Ontario. Or simply “200 for 200”. I think this is a fair price to pay to promote access to justice, train the next generation of lawyers and protect self-regulation.

The University of Ottawa proposed a similar idea in its submissions to the LSUC’s 2008 Licensing and Accreditation Taskforce as one of its nine suggestions that it made to that Task Force. It proposed instituting a “lawyer levy” that the LSUC would impose on the 30,000 lawyers who do not employ articling students in any given year contributed $100 each year, the LSUC could provide two hundred articling subsidies in the amount of $15,000 in any given year. Subsidies could be focused on both geographical and cultural areas that are currently underrepresented by lawyers. That suggestion was not given serious consideration at the time. It should be now.

But that 2008 proposal did not go far enough. The access to justice crisis worsens and we are back looking at articling only three years later because we need bold solutions. An Ontario Legal Corps is worth considering.

The CBC Radio Show "Ontario Today" recently covered the auto insurance reforms that went into play one year ago,

One year after changes to auto insurance in this province, who's better off?

Hear from a doctor who says insurance companies are turning almost everything down; a lawyer who says there is a lot less money for treatment if you're in a car crash; and an insurance industry spokesperson who says you will be taken care of if you're hurt.

The changes continue to be highly contentious, with insurers saying they were desperately needed, and many clients and assessment centres saying the are criteria were unfair and are hurting people that genuinely need care. I detailed many of these changes here on Slaw.

Last week I was half-listening to a CBC radio interview in the "Gamechangers" series on the Current, in which a physicist was explaining parallel universes and quantum computing. There was something about his delivery that made me pay more and more attention. His language was simple and clear. I was being drawn in to what felt like relatively effortless understanding (listen especially around the 12 – 16 minute mark). I turned up the volume and gave the radio my full attention, realizing I was being captured by excellent advocacy.

It is of course the fundamental goal of all advocates to be able to make complicated material interesting and understandable to an audience

At the end of the interview I discovered I had been listening to David Deutsch. I Googled him. He is an Oxford physicist. Pioneer of quantum computation. Author of famous works including The Fabric of Reality (which I had never heard of.)

Soon I was in his web page. One of the links is to Taking Children Seriously, a site devoted to parenting. I followed it and, to my horror, found myself awash in what seemed to be the unqualified promotion of dispute resolution through mediation.

My weekly theme in this blog is that mediation, although an essential part of the menu of services available in a modern legal system, on its own is not an adequate dispute resolution system. Rights are rights, and if the holder of the right does not want to compromise, she must be entitled to assert it and the judicial system must be able to grant it.

Here was a genius, and a superb advocate, telling me I was all wrong!

The objective of the TCS approach is that all problems can be solved without any one side imposing their will on another:

“Solving a problem means doing whatever it takes to cause those involved to adopt states of mind which they prefer to their previous states, and which do not cause them to hurt each other. This might involve taking some visible action, or it might just mean making a change in your mind.”

The site is fascinating reading for anyone interested in theories of parenting.

As I read further I realized that the results we often get from mediation in our judicial system – a compromise in which neither party is happy – is not what Deutsch and TCS are advocating. Their goal is consent-based solutions defined as:

…wholehearted agreement – outcomes having the property that no one gets hurt – rather than ones in which someone is merely going along with the outcome while really wanting some other outcome.”

Rights-based dispute resolution conducted according to law and precedent is not designed to deliver this. But mediation doesn't deliver it either. Wholehearted agreement is no doubt a more laudable goal, but if it cannot be achieved, the parties must not be compelled to compromise their rights.

The Law Foundation of Ontario is helping to coordinate articling positions in the Public Interest community, in conjunction with Pro Bono Students Canada (PBSC). From the LFO's information page:

The Law Foundation of Ontario (LFO) is pleased to announce that it is now accepting applications from prospective host organizations for its groundbreaking Public Interest Articling Fellowship Program for the 2013-14 articling period.

The Public Interest Articling Fellowship was conceived to meet both a significant need for legal assistance within the public interest community and to allow law students to gain valuable experience in public interest law. The program expands opportunities for articling in public interest organizations in Ontario by targeting groups that do not have access to funds to pay for an articling position. Pro Bono Students Canada (PBSC), with its extensive experience in working with public interest organizations and law students across the province, will continue to administer the program.

The LFO is inviting applications from prospective host organizations for up to six 2013-14 Articling Fellowships. The Fellowship covers the articling student's salary, along with the LSUC Licensing Process Fee and Licensing Application Fee. A stipend may also be paid, if necessary, to the selected organizations for out-of-pocket expenses (such as furnishing an office or purchasing a computer) that are required to host an articling student.

To be eligible, the host organization must:

• Be Ontario-based
• Be a not-for-profit or registered charity
• Have an on-site Articling Principal
• Not have access to funds to hire an articling student

The deadline to apply as a host is October 24, 2011, 5:00 p.m. For information on applying, please see the LFO webpage.

Hat tip: @CanLawMag (Canadian Lawyer Magazine)

The Institute for Research on Public Policy (IRPP) released a study by Pierre Lortie today concluding that Canada does not need a national securities regulator. The report details how decentralization has allowed flexibility in the different provinces, allowing them to respectively adopt best practices, and finds a higher degree of performance as compared to other nations.

One notable finding was that Ontario is not a participant in the "passport" system, which allows dealers to register and companies to file prospectuses and have them apply in all other jurisdictions. The report strongly urges Ontario to join this system for it to be more effective.

Lortie’s conclusion is unequivocal: Notwithstanding legitimate critiques of certain details in the functioning of the current system, Canada has by any measurable criterion a regime that is recognized as one of the best in the world. He finds no evidence whatsoever to support the notion that a national securities regulator would better serve Canada’s needs and interests.

The report also includes commentary by Thomas Hockin, who expresses some misgivings about the current system's ability to react quickly to changes in global markets. He states that a national regulator would be a better at enforcement,improving investor protection.

Yet despite the harmonization and coordination that the Canadian Securities Administrators have accomplished, the existing passport system does not include Ontario. Markets are dynamic, and we must ensure our regulatory structure has the capacity to adapt to keep pace. In this modern era of sudden liquidity seizures, financial institution collapses and sovereign debt challenges, this topic has never been more strategically important for the Canadian economy…

It is clear that only a national regulator can reflect today’s capital markets, offer effective responses to systemic risks, effectively enforce securities regulation and represent Canada’s interests abroad. I am joined in this assessment by numerous expert reports and the international community. The federal government has made efforts to ensure that a CSRA would accommodate local needs, and provinces and territories would be well advised to work with the CSTO to ensure these needs are addressed.

The full report is available here, with a summary from IRPP here and coverage in The Globe here.

Not that Research in Motion needs more bad news and Apple more positive press, but today Apple launches a significant update to its operating system along with its new cloud service.

I am looking forward to testing out both new developments since I continue to more heavily integrate my iPad into the practice of law (in addition to amassing more Zombie games, including the highly addictive Call of Duty: Zombies HD; my joy in slaughtering zombies, albeit only in a video game app, is causing me concern, although there are apparently no moral issues in killing the undead).

The iOS 5 software update, which includes 200 new features, is being regarded as a big deal. Apple has a ton of information here (yes, largely promotional). Some of the features I am keen to try include iMessage, a new Reminders feature, the Newstand app (for managing newspaper and magazine subscriptions), and rich text email and and an improved Calendar. Plus there is the ability to synch wirelessly without the need to be connected to a PC.

On the other hand, it is harder for me to predict the impact on me of their new iCloud service. For what is described as a "hard drive in the sky," Apple will be providing 5 GB to users for free (with an option to pay more for extra space: for example, $100/year gets you an additional 50GB of space). Apparently, iCloud will keep your email, contacts, and calendars up to date across all devices, with no syncing required. SLAW has already commented on iCloud, including whether it stands to be a Dropbox killer. Of course, SLAW has also discussed the concern for legal professionals to ensure that client-confidential information is not at risk.

Interesting times.

Chas Rampathal, the General Counsel and Vice President of LegalZoom is giving the lunch keynote at today's PLTC 2011 in Vancouver on the Future of Legal Practice.

LegalZoom is a company that is responsible for 20% of the corporate formations in the US last year.

This is a live post:

Pressures that force change

Large businesses and general counsel are forcing change on their law firm

Consumers and small businesses are an unmet market. Legal Zoom's success is testimony to the potential.

Academic commentators wonder what the future of the law firm will be

How is the legal profession responding – who should control the change?

The forgotten legal customer

Richard Susskind

First thing we do – let's deregulate all the lawyers

Law21

Who is the legal consumer?

The term is not the client – but consumer

How do we know what they want?

Who is the legal consumer of the future – unmet legal needs of the middle class.

Small business needs

They want help – simple, fast economical and trustworthy.

Doubt that meaningful reform can come from within the legal system. Are lawyers equipped to take the tough road of reform. We have had a long time to open up access to legal services for the middle class. Most people cannot afford real legal help.

Lawyer billing rates are going up at a time of economic pressure.

Chas is both inside and outside of the system.

First ABS in England formed – LegalZoom will open in the UK next year. With a law firm.

Innovation will come from outside the profession. Need to have a continuum of services – good enough.

Law in a flat world – Hadfield

Legal Advantage for LegalZoom

Target and CostCo model.

Anatomy of a middle class legal solution –

Brand recognition +
online information gathering and interaction for the web-savvy solution +
affordable pricing through volume and monthly subscriptions +
customer care and responsiveness +
helpful attorneys working through technology not adjacent to technology +
easy or online delivery of documents +
social gathering place for like-minded consumers +
project management and operations efficiency +
willingness to refer other consumers +
internal crowd-sourced knowledge management +
check list manifesto to gather information and use for quality control (no bad day) +
economies of scale through creation of templates

LegalZoom is testing the approach but how long will this take?

LegalZoom

To what extent should judges be involved in mediation?

The Chief Justice of Ontario addressed this thorny issue in The Advocate's Journal, Winter 2010. He considers it from the perspective of the public, the bar and the bench, provides a brief history of judicial involvement in settlement discussions, adumbrates the arguments for and against judicial mediation, and asks whether it is a reality or a fantasy.

There are so many issues.

How would it be different from the pretrial rule which is designed "to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing"?

Should judicial mediation be given official status? Should it be interest based or rights based?

Should judges be meeting with one side in the absence of the other?

Does judicial mediation undermine the judiciary as society's ultimate impartial arbiters?

See this interview with Hon. Richard Scott the Chief Justice of Manitoba and chair of the Canadian Judicial Council's Judicial Conduct Committee.

The debates rages on.

It is fascinating to see how widely the mandate varies across Canada – see this Lawyers Weekly article.

In January of this year the OBA struck a task force to study the issue. Here is its Mission Statement.

A Policy Day on this topic will be held at the OBA conference centre on 9 December 2011. Check the OBA website for further details.

The Ontario Human Rights Commission (OHRC) has invited citizens to submit short papers (six to eight pages) toward a dialogue on human rights, specifically relating to religious belief and practice as shaped by the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

Several papers that make the final selection will be presented in January 2012 at a community dialogue, featuring diverse communities, academics and human rights lawyers and practitioners, hosted by the OHRC in partnership with the University of Toronto’s Religion in the Public Sphere Initiative and the Faculty of Law.

The commission is accepting brief proposals (one to three pages) until October 14, 2011. The topics include:

• Human rights and the protection of religious belief and practice in a secular society.
• The general exemption in Section 24(1)(a) of the Ontario Human Rights Code that applies to religious, philanthropic, educational, fraternal or social institution or organization:

The right under section 5 to equal treatment with respect to employment is not infringed where:

(a) A religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.

• Intersection of Code grounds: Discrimination issues often arise because of a combination of human rights grounds. For example, a young lone mother receiving social assistance who is looking for housing or employment might experience discrimination based on her sex, age, family status and receipt of social assistance. If she is a racialized person or is a member of a specific creed, or has a disability, her experience of discrimination may change or be compounded.
• Extension and limits in providing and designing accommodation of religious beliefs and practices in diverse organizational contexts.

More information on other potential paper themes and selection criteria can be found here.

Although it is impossible to establish a standard method for resolving conflicts between religious freedoms and human rights, this dialogue is a welcomed one. In light of the present trends toward multiculturalism, globalization and increased religious intolerance, developing a common understanding of human rights is becoming even more essential.

Ensuring the dialogue involves religious groups, as well as those who uphold, practice, write and teach the law, will make it more relevant.

At a 2005 human rights panel, Piet de Klerk, the Netherlands' Ambassador at Large for Human Rights stated,

Some say freedom of religion is the mother of all human rights," and “all human rights are universal and interconnected.” Further, “the degree to which freedom of religion or belief is upheld reflects the general human rights situation in a particular country.”

In other words, the more a people respects others’ freedom of religion or belief, the more the people respect human rights in general. And vice versa.
There’s no doubt that religious tolerance is crucial to functioning societies. Intolerance breeds resentment and anger, which often gives rise to violence, discrimination, oppression, incitement, fear and other antisocial acts.

The only way to counteract intolerance is through education and understanding, best facilitated by public dialogue. This is, in part, the intent of the OHRC’s discussion panel, featuring the selected papers. The other part is to help citizens understand the role of our existing human rights regime when it comes to dealing with freedom of belief, and possibly to understand the system’s shortcomings and how it might be improved.

What do you think? Does tolerance of religion and creed indicate how well a society respects other human rights? How important is human rights law to support tolerance and respect? Can we hope to eradicate intolerance with dialogue and debate? Is an academic forum like the one proposed here the answer? Is there a more direct community-oriented method to increase civic understanding of human rights issues?

Thanks to a post on 3 Geeks and a Law Blog we learn that Kingsley Martin has developed a simple means of producing, via a Google Docs form, non-disclosure agreement minimally adjusted to your clients' circumstances.

Martin runs a business that analyses legal agreements and develops software tools to help lawyers facilitate the production of contracts. He also publishes a blog and, as a service, Contracts Standards, that:

openly share[s] contract standards–transaction analysis, checklists, and clause libraries–in an effort to establish global contract norms.

Based on his Non-Disclosure Agreement Checklist, the form asks for a few inputs (date, names, etc.) and then ships you by email a ready-made agreement that captures the essentials. You can see a version of the uncompleted document here.

The point, of course, is not so much to improve the work of making NDAs as it is to demonstrate that there are many contracts having at their core common terms, which enables efficiency through standardization, and to show that something as simple as Google Docs can be used to manage document assembly.

In what is very welcome news, the Ontario Superior Court of Justice has released a practice direction, effective 1 October 2011, authorizing the use of reliable online versions of court decisions for filing in books of authorities and providing for special citation rules:

Practice Direction Regarding Filing of Judicial Decisions from Electronic Databases, and Regarding Citation of All Judicial Decisions

Practice Direction

Judicial Decisions from Electronic Databases

Effective October 1, 2011, copies of judicial decisions obtained from approved electronic databases are acceptable for filing provided the report of the judicial decision contains paragraph numeration consistent with the numbering of the paragraphs in the decision as released by the court. “Approved electronic databases” are databases that are dedicated to the publication of judicial decisions (e.g. Quicklaw, CanLII).

Parties should be aware that judicial decisions posted on electronic databases may be subject to correction or editing within a few days of the initial posting and, accordingly, parties should ensure that any decision obtained from an electronic database has not been subsequently amended.

Citation of All Judicial Decisions

Parties citing decisions from electronic databases should provide the citations for any paper versions of the decision in addition to the citation of the electronic database.

Parties should provide the date that the copy of any decision was obtained from an electronic database, as part of the citation information.

For decisions of the Ontario Superior Court of Justice released on or after January 1, 2010, parties should provide the neutral citation number (e.g. 2010 ONSC 1) in addition to the other required citations.

Osgoode Hall, Toronto
September 1, 2011

The Honourable Heather Forster Smith
Chief Justice, Superior Court of Justice

A few comments:

• "Approved electronic databases": The practice direction unfortunately gives what I assume is an unintentional, inadvertent limited view of examples by mentioning only Quicklaw or CanLII as approved electronic databases. Ideally, the practice direction would have preferred or encouraged the use of CanLII, where available, and then either referred more generically to the commercial databases or to include a more exhaustive listing (e.g., Westlaw Canada, BestCase, Maritime Law Book, SOQUIJ, DCL/REJB, and so on) or simply identified the major legal publishers as opposed to specific databases.

• Citation: I don't think I have a problem with including both a citation to the print-published version of a decision (if available) along with the online citation. I do find it interesting (and different) for the court to require "the date that the copy of any decision was obtained from an electronic database." If the court was going to otherwise change McGill Guide style, I would have liked if they had gone further to provide that, for decisions on CanLII, citing the neutral citation alone would be sufficient. In addition, the practice direction is ambiguous in its example of citing to the neutral citation for Ontario Superior Court decisions. A more preferable practice direction would have stated something along the lines that counsel are encouraged to file decisions from CanLII from all courts (not just Ontario) and when so doing may include only the neutral citation.

Despite these nit-picks, all-in-all this is a welcome and long overdue development.

Two galloping horses. A single rider, with one foot on each. The three are approaching a fork in the road.

Call me melodramatic, but this is the image that bubbled up in my mind as I examined the material I received from the Advocates Society this week.

The Advocates Journal contained an article by Sheila Block entitled "Advocacy Lessons from the Past". It is an engaging piece sprinkled with references to the succinct styles of Maloney, Dubin and Robinette. The author reminds us of advice from Orwell on writing, relishes 'beautiful, simple language', and questions whether today lawyers focus enough on the fundamentals of persuasion.

In the same envelope was a flyer announcing a special litigation presentation – "Mediation Advocacy". The program description sensibly points out that litigators don't leave their courtroom skills to chance, and goes on:

"The majority of cases are won or lost before going to trial and you need to be just as vigilant about your advocacy skills outside the courtroom."

No doubt there is some Venn diagram-type overlap between the skills required for court and mediation advocacy: ability to absorb the factual record, knowledge of the underlying legal rights.

But there the similarity ends.

Court advocacy focuses on persuading a disinterested, impartial judge. The target of mediation advocacy is the opposing party and their lawyer. In court there are rules of evidence and admissibility. In a mediation the goal posts have been dismantled and taken away. Human psychology is the key in mediation; in court we hope for decision-making based on a cool appraisal of the facts and the law.

Court advocacy is to mediation advocacy, as tennis is to cage fighting. Without an umpire.

Developing a style for one, will not help you with the other.

Should litigation lawyers be expected to do both?

I think we should choose horses.

On Tuesday, September 13, 2011 the Opening of the Courts was held in Toronto, preceded by an interfaith service at Church of the Holy Trinity. The service consisted of a fascinating mix of a number of readings, including a South African anti-Apartheid song (and dance). I couldn't help but think that this would have been impossible a couple decades ago.

But attendees were surprised by a protest outside of the church as soon as the services completed. A video of the protest is available here, with one of the speakers saying,

We're going to be here every single year.

At least some of the protesters appeared to be representing a website called Canada Court Watch, with their primary grievances focusing on family law. The judiciary hardly seemed insensitive to the plight of family law litigants, although choosing not to engage the protesters directly. The remarks by Chief Justice Heather Smith stated,

For several years now, I have targeted a significant portion of my Opening of the Courts remarks to family law proceedings in our court. My remarks included cautious optimism along with a fervent wish for faster progress towards our ultimate goal.

Similarly, the remarks by Chief Justice Warren Winkler stated,

The Governor General of Canada, His Excellency the Right Honourable David Johnston, observed in his address to the Bar Association that, “for many today, the law is not accessible.”

Chief Justice Beverley McLachlin, who has taken a leading role in publicizing this issue, said that access to justice was the “greatest challenge facing the Canadian justice system.”

If we are to make meaningful progress in addressing this issue, we must concentrate on areas of law where we can have the greatest impact. We should prioritize those areas with the greatest societal need and where concrete change is achievable. Analysed in this fashion, family law cries out for reform.

Family law touches directly or indirectly almost everyone in our society. Our current family law system is too slow, too complex, too adversarial, and above all, too costly. There is no other area of justice reform where we can have a greater impact on ordinary Ontarians.

Some improvements in family law services have been made over the last year. I commend the Ministry of the Attorney General for its role in extending information, mediation and referral services to courts across the Province.

These are welcome changes, but much more must be done if we are going to make significant improvements in access to justice for families in transition.

If real progress is going to be made there must be a fundamental reformation of family law. In order to make family law more accessible, it must be more affordable. To achieve this, the procedures must be simplified and unnecessary steps removed thus shortening the process and making it cheaper. This will allow families to resolve their disputes in a more efficient and affordable manner, assisting them to more effectively move on with their lives.

In order to clear the way for the type of comprehensive reform that I believe necessary and have spoken about frequently, we have to extend the unified family court beyond the current 17 sites to the entire Province.

Change is needed in the family law system, and if these protesters are any indication, this change is needed sooner rather than later.

One step that members of the bar have taken to help address this in a more independent fashion is to provide accurate and timely information to members of the public about family law. This week also featured the television launch of Family Matters with Justice Harvey Brownstone, a show that both Connie and I have mentioned that was previously carried online but is now aired through mainstream television broadcasters. The show is the first television show in the world hosted by a sitting judge.  Quebec is also launching a family show featuring a local family lawyer.

I was also invited this week to an advance screening of an independent documentary, Blakout. Family law appears high on the agenda for residents of Ontario, and it will be interesting to see how prominently it features in the upcoming provincial election. Whichever party does come out front should make it a priority to heed the calls for reformation from both the public and the respective heads of our judiciary.

Looks like litbots and databases will soon be providing routine updates of structured information to human readers via newspapers and news websites in the form of machine written articles. Narrative Science is the company behind it.

Pretty soon, such litbots will be conversing with my own personal litbots, and negotiating the purchase of routine items I need and can afford, according to the budget I set and the priorities I identify. The prospect of the online grocery appears again: I need milk, eggs, and in-season fruit every Tuesday, for delivery Wed. afternoon. The grocery's litbot can check my calendar to make sure I'm not out of town before preparing the order, and perhaps humans will select the peaches to ensure they're not bruised.

Goldsmith's already supplies quantum tables for classes of injuries. Can't an enterprising lawyer automate the delivery of this information? DivorceMate, so slyly named, supplies this kind of information to lawyers and their clients, but not very efficiently at present.

At this rate, lawyers, journalists, and many other professions will be looking at the same challenges Librarians are facing now: dropping or automating the clerical aspects of their work and concentrating on more sophisticated services requiring higher levels of expertise.

It has been a long while since we mentioned the Innovaction Awards. The 2011 winners were recently announced, and a Canadian group are among the winners:

Berwin Leighton Paisner, LLP (BLP) was selected for their Lawyers On Demand (LOD) initiative which began in 2007 after BLP observed two important issues affecting the UK legal market: (1) legal services clients want to stretch their budgets further and (2) many lawyers are looking for greater flexibility and autonomy in their work. BLP created LOD to address these issues. LOD challenged the traditional models of legal service delivery and brought talented freelance lawyers to work directly with clients. LOD lawyers work at the client office or their home office but are nevertheless vetted and supported by BLP know-how resources, the LOD service unique in the market. LOD began as a pilot in 2007 with eight lawyers. Since then, it has increased ten-fold in size and gained a fantastic list of clients.

The University of Toronto Faculty of Law received an InnovAction Award for its Internationally Trained Lawyers Program (ITLP). When immigrating to Canada, one of the biggest challenges internationally-trained lawyers (ITL) face is the lack of access to opportunities to receive practical, hands-on experience in the Canadian legal environment, particularly during the lengthy accreditation and licensing process. In recognizing the limited opportunities for ITLs, the University of Toronto's Faculty of Law created a bridging program for ITLs who wish to practice in Ontario. The ITLP is a comprehensive 10-month program to help participants obtain their license and secure full-time professional employment. The program includes intensive academic, cultural fluency and career development classroom sessions, design to support international lawyers.

The University of Miami School of Law in partnership with five other law schools was selected for theirLawWithoutWalls initiative. LawWithoutWalls is a part-virtual, collaborative academic model that unites students, faculty, practitioners, and entrepreneurs from around the world to innovate legal education and practice. It’s designed to help those engaged in the education and practice of law to embrace the impact of our changing world. LawWithoutWalls exemplifies what 21^st century education can be. Students are not educated on-line in the same old way. Instead, technology is utilized to create an entirely new educational experience, a platform for interdisciplinary interchange and community.

Check out the video for LawWithoutWalls (for video from Lawyers On Demand, you will have to visit their website):

LawWithoutWalls from LawWithoutWalls on Vimeo.

Google's venture capital arm, Google Ventures, is intent on disrupting the legal market.

First, it invested in LawPivot, a Quora-style Q&A platform for providing legal advice to businesses. LawPivot has now opened its platform to the public, allowing lawyers to answer businesses questions in a venue visible to the public.

This new twist on LawPivot's business model will build up a valuable and publicly-accessible knowledgebase of legal advice for businesses to leverage. LawPivot will also provide lawyers a high-visibility platform to demonstrate their expertise to prospective clients.

Google Ventures has also recently invested in Rocket Lawyer, an online legal document service. Users of Rocket Lawyer's service can easily generate legal documents – ranging from divorce agreements to incorporation documents – and optionally pay an additional fee to have a lawyer review the document.

While the Internet has certainly had an impact on the legal market (by way of clients finding lawyers through Google search, for example), the Internet has not yet truly disrupted the business model of running a law firm or, for that matter, being a lawyer. Google Ventures is betting that day is coming, and it clearly wants to be in the thick of the disruption.

Yes, lawyers are conservative. Yes, they're slow to respond to social change. And yes, they're by and large technophobic (ask any lawyer you meet about venerable RSS and watch their incomprehension).

But.

Some innovate. Clearspire, a firm in DC, if it can be said to have a location, is one of the innovators, and a firm worth taking a look at. It's almost tedious to count the ways in which Clearspire differs from Rumble, Bump & Stiltskin, but the Economist does its usual good job of summarizing matters. These are three of the highspots:

• No billable hour. Instead:
  

  Clearspire offers cost estimates for each phase of a legal job. Employees who underestimate how long it will take cannot simply jack up the bill—they must take the hit themselves. But if a lawyer finishes his work faster than promised, he gets a third of the savings. The client also gets a third, as does Clearspire.
  [Economist]

• No central physical office, but regional centres and a powerful "best-in-class enterprise IT platform" [Clearspire] allows lawyers to collaborate and work from anywhere with clients located anywhere, and allows clients access to information crucial to them.
• A corporate separation (necessary in the US) between practicing lawyers, who are employees, and a business structure that brings in business, meaning that clients aren't paying for partners who do that but may not be contributing much to the solution of their problems.

Roam around their (unconventional) website to get a fuller picture. Or take a look at their promotional video below:

A final, and perhaps irrelevant thought: while I'm not an inordinate fan of law firm names that rely on partner names, I'm not a fan either of the "Clearspire" name. To me it sounds as if it were dreamed up by some ad agency after numerous focus groups… "clear" and "aspire" are too evident, too tendentious for me, at least.

♬ An' now I'm flyin' through the air.
On a cloud, on a cloud.
On a cloud, lookin' down…♬

Lyrics and Music by Cody Canada, recorded by Cross Canadian Ragweed.

Privacy Commission of Canada Web Logo

Further to Simon Fodden's post on August 16, 2011 entitled: "Privacy Commissioner Releases PIPEDA Guide for Lawyers", I thought that a relevant passage in that report dealing with safeguarding personal information and in particular, with reference to mobile devices and cloud computing, would deserve its own post. The section in question on Safeguarding Personal Information is as follows (relevant paragraphs bolded for emphasis):

Safeguarding personal information

Lawyers are familiar with the need to safeguard their clients’ information. However, like all organizations, work options available to lawyers have evolved considerably. In the course of their practices, lawyers and support staff often work using computers, laptops, smart phones and other mobile devices. The use of such devices presents a number of challenges in safeguarding personal information.

Lawyers can face a number of potential vulnerabilities in the course of their practice, including the following:

• poor security measures for paper documents, computer systems, computer applications, mobile devices, computer networks, wireless networks or email transmission;
• misplacing paper or electronic documents;
• traces left by electronic documents (i.e. metadata)
• insecure courier/postal communication; and
• third-party suppliers and partners may mishandle information (including third-parties offering cloud computing services).

PIPEDA requires personal information to be safeguarded at all times. Personal information should be safeguarded through the use of:

• physical measures, for example, locked filing cabinets and restricted access to offices;
• organizational measures, for example, security clearances and limiting access on a “need-to-know” basis; and
• technological measures, for example, the use of passwords and encryption.

The more sensitive the information is, the stronger the safeguards must be.

One measure to ensure that personal information is secured is to avoid physically removing the information from the office at all, or to limit doing so to the greatest extent possible. There are many technological solutions that allow lawyers to securely access office systems remotely. Such solutions, provided they are implemented in a secure manner and employ appropriate encryption standards and firewalls, can offer the best protection for personal information.

Any laptops and other mobile devices and media must be secured, including through the use of encryption. Highest care must also be taken when working in public spaces or on devices to which more than one person may have access. As well, lawyers or law firms considering cloud computing solutions must carefully consider the privacy and security implications of any service they may create or subscribe to.

Lawyers must use contractual or other means to provide a comparable level of protection while the information is being processed by a third party. Where any third-party service provider may have access to or otherwise handle personal information on behalf of a lawyer, including cloud computing service providers, it is strongly recommended that a written agreement be put in place between the third-party and the lawyer. Such a contract should include provisions governing the jurisdiction where information will be processed or stored, ownership and use of information, the level of privacy controls used by the service provider, access and correction procedures, audits, and deletion procedures. Lawyers must remember that they remain accountable for information transferred to third-parties for processing. PIPEDA also requires organizations to be transparent about their personal information handling practices. Accordingly, organizations should notify clients when using a service provider located outside Canada and advise them that their personal information may be subject to the laws of a foreign jurisdiction.

The Office of the Privacy Commissioner has developed a self-assessment tool to assist organizations measure how well they are safeguarding personal information.

Hat tip to my colleague Doug Munroe for pointing out this particular section – good advice when you are flying on a cloud.

Have a look at Jason Wilson's latest rethinc.k post, "The Document Life: Why “lawyer” is moving from a profession to a metaphor." In actual fact, the post, after a brief intro by (legal publisher and Slaw columnist) Wilson, is a reproduction of an article written in 2008 by Ross Reeves for the Virginia Bar Association News: "Marshall McLuhan in the Modern Law Office: Has Technology Changed the Way We Think?"

McLuhan, the hometown boy and media messenger, is back in the world's good graces again, after a number of years in the wilderness. And, of course, what's restored him to significance is the rapid sweep of the board by digital media and the internet — that, and the fact he was spot on about so many things, of course.

Reeves, after McLuhan, tells us that "modern law office media are changing the shape of the legal mind" and warns that "[w]e remain blind at our peril." So read what he has to say — and consider that things have moved along ever more swiftly since 2008.

At this year’s annual Canadian Bar Association meeting, two public figures in the Canadian legal world spoke out on a topic that is very oftendiscussed, but extremely difficult to assess whether any positive change is taking place: access to justice. Both the Governor-General of Canada and former dean of law at the University of Western Ontario, David Johnston and Chief Justice Beverley McLachlin spoke at this year’s annual CBA conference.

This past weekend, Chief Justice Beverley McLachlin discussed Canada’s access to justice (see a Globe and mail article here): according to the World Justice Institute, Canada places 9^th out of 12 European and North American countries when it comes to access to the courts. Not surprisingly, questions of affordability, complexity and time delays make access to justice a continued challenge.

On a slightly different note, the Governor-General brought up in his speech a variety of issues other than simply that of access to justice, issues which are not often so honestly addressed (see here for an article in the Vancouver Sun). The Governor-General in fact called for change at all levels of the practice of law. He went from the early stages of the legal training by discussing the problems with law schools, to the lack of work-life balance, especially for mothers, once lawyers are in the midst of their practice and to currently practicing lawyers who are not earning the public’s trust. Indeed, the Governor-General addressed many of the issues that give lawyers a bad name.

There is absolutely no doubt that the challenges raised by these two keynote speakers are crucial to all legal practitioners. However, to what extent is the legal world ready to make the necessary changes to usher in the elements required to solve these issues?

First to BC where a committee of the Law Society of British Columbia, under the chairmanship of Gavin Hume, has produced the best and most thoughtful piece on how to practice ethically and effectively using cloud computing. We've referred in the past to helpful work done by the Bar Association in North Carolina and the ABA's 20/20 Commission – see Jack Newton's posts from May and July, as well as Connie's and Omar's take on last week's ABA discussion.

At the Canadian Lawyer, David Paul has a good tip sheet of practical advice on the intelligent use of Google in the practice of law – well worth a close look. Even Slaw readers might pick up a tip or two.

Back to the cloud – to my way of thinking, Gavin's committee has really done us all a service with the clarity and practicality of its analysis.

RECOMMENDATIONS
Recommendation 1: The Law Society should adopt and publish the attached due diligence guidelines for lawyers using third party electronic data storage and processing (see Appendix 1).

Recommendation 2: In order to ensure the Law Society’s regulatory process keeps pace with evolutions in data storage and processing technology, and to ensure the audit process remains robust, the Act and Rules Subcommittee should draft rules that capture the following concepts:

1. Rule 3-68(0.1) should include reference to Rule 3-59 in order to facilitate the Trust Regulation Department auditing and investigation of accounting records;

2. Rule 3-68 should be amended to remove reference to the “chief place of practice” requirement with respect to electronic records, and instead should require that electronic records be made available at the time of request in a format acceptable to the Law Society (the Law Society should publish guidelines as to what the Trust Regulation Department requires as an acceptable format);

3. The general retention period in Rule 3-68(1) should be 10 years from the final accounting transaction;

4. There should be a general rule regarding records in electronic form that gives the Law Society the discretion to accept copies of those electronic records in paper or another form;

5. There should be a general rule regarding records in electronic form that the Law Society has the discretion to require the lawyer to provide the meta data associated with those records;

6. There should be a general rule that requires lawyers to ensure their electronic records are capable of meeting the prevailing electronic discovery standards of a British Columbia superior court;

7. The Act and Rules Subcommittee should determine how to incorporate the following trust rule requirements:

(a) If monthly reconciliations are prepared and stored electronically, the reconciliation must show the date it was completed. Each of the monthly reconciliations must be available with appropriate back up documentation and not overwritten by the system.

(b) If billing records are stored electronically, they must include the creation date as well as any modification dates.

(c) All accounting records must be printable on demand in a comprehensible format (or exported to acceptable electronic format (ie. PDF)) and available for at least 10 years from the final accounting transaction. If the member scans all his supporting documentation such as 3rd party documents like bank statements the full version meaning all the pages front and back even if there it is blank page.

(d) A sufficient “audit trail” must be available and printable on demand in a comprehensible format (this should be a requirement of all accounting software whether it’s in the cloud or a stand-alone program such as ESILAW or PCLAW etc.).

(e) Audit trail transaction reports must be complete, showing all postings into the software with specifically assigned transactions that correspond chronologically with dates etc.

(f) Cash receipts must always be retained in hard copy.

(g) Ability of system to provide creation dates, what changes were made, and how often the documents (i.e. Word, Excel and/or Adobe) were changed. Ensuring that metadata information is not lost when stored on a cloud.

(h) Ability for LSBC to have view only access & printing access to all items stored on cloud (I.e. emails, documents, accounting records) when required. This does not derogate from any rule that allows the Law Society to copy a record or have that record provided on request. The purpose is to allow for a forensic investigation that does not alter the underlying record.

8. There should be a rule that recognizes, in circumstances where the Law Society has had to copy electronic records held by a third party, the Law Society may rely on the copies as best evidence and the onus is on the lawyer to provide a forensic copy of those records if the lawyer wishes to dispute the quality of the evidence.

9. The Act and Rules Subcommittee should consider, as part of future revisions to the Legal Profession Act, amending s. 37 to permit orders for copying or duplication of records, as an alternative to “seizing” records.

Recommendation 3: For the purposes of interpreting Rule 3-68(4), and subject to the other recommendations in this report, if a lawyer ensures through contractual safeguards that custody or control of his or her records does not pass to a third party, the lawyer can use a third party for the storage or processing of those records. If the lawyer is unable to access those records and provide them on demand during an audit or Law Society investigation, however, the lawyer may be found to have lost custody or control of the records, which may lead to disciplinary consequences.

Recommendation 4: In circumstances where the Law Society Rules require a lawyer to either provide the Law Society the lawyer’s records or make copies of the records available to the Law Society, and the lawyer either refuses to comply, or is unable to comply by virtue of having used a service provider that does not make the records available in a timely fashion, the lawyer should be suspended until such time as the lawyer complies with the disclosure requirements under the Law Society Rules. The Act and Rules Subcommittee should consider whether this requires creating a new administrative suspension rule, or proceeding by way of Rule 3-7.1. In circumstances where the lawyer is suspended, the Law Society should consider seeking a court order for a custodianship in order to protect the public and ensure the suspended lawyer’s clients continue to be served.

Recommendation 5: The Law Society should encourage the CBA BC Branch and CLE BC to include as part of future courses on cloud computing (or similar technology), information about the best practices and Law Society Rules.

Recommendation 6: The Ethics Committee should review its ethics opinions regarding the use of third party service providers and update them to address the concerns arising from the use of cloud computing, or similar technology.

Recommendation 7: Law Schools and PLTC should teach students that lawyers’ have an obligation to ensure their use of technology is consistent with their professional obligations.

Recommendation 8: The Law Society’s Trust Regulation Department, and the Professional Conduct and Investigation Department, when dealing with investigations involving a lawyer who uses cloud computing, should identify circumstances in which the approach proposed in this report is failing to protect the public interest, in the event modifications to the policy and rules is necessary for the Law Society to fulfill its public interest mandate. Because technology will continue to develop, and standards will emerge, it is important to ensure the Law Society keeps pace with these changes, and staff will play an important role in keeping the Benchers apprised of the potential need for amendments to the policies and rules recommended in this report.

Recommendation 9: The Practice Advice group should modify their resources to reflect the recommendations in this report. This may involve creating checklists to better assist lawyers.

Recommendation 10: Because cloud computing is an emerging technology, the Law Society should ascertain whether any lawyers who use cloud computing are willing to have the Trust Assurance Department determine whether their system meets the present requirements, and the investigators determine whether the system meets the requirement for a 4-43 investigation. This would not be for the purpose of endorsing a
particular system. It would be for the purpose of identifying any concerns to ensure the Law Society’s auditing program can address cloud computing.

Recommendation 11: Because cloud computing stores records in a manner where the Law Society may not be able to make forensic copies of hard drives, or segregate irrelevant personal information that is stored in the cloud, Rule 4-43 should be amended to make it clear that the process for protecting personal information during investigations is subject to the lawyer using a record keeping system that supports such a process. If lawyers choose to use systems that do not support that process, they do so at their own risk, and the Law Society may end up having to collect or access personal information that is irrelevant to an investigation.

And a very practical due diligence check list for those considering venturing onto the cloud:

PART A: GENERAL DUE DILIGENCE CHECKLIST Lawyers must ensure that the service provider and technology they use support the lawyer’s professional obligations, including compliance with the Law Society’s regulatory processes. This may include using contractual language to ensure the service provider will assist the lawyer in complying with Law Society investigations.
Lawyers are strongly encouraged to read the service provider’s terms of service, service level agreement, privacy policy and security policy. Lawyers must ensure the contract of service adequately addresses concerns regarding protecting clients’ rights and allowing the lawyer to fulfill professional obligations. Ensure the contract provides meaningful remedies. At a minimum consideration should be given to the following:
o Lawyers must take steps to ensure the confidentiality and privilege of their clients’ information is protected. Clear contractual language should be used to accomplish this objective.
o Lawyers should try to ascertain where the data is stored/hosted. Consider the political and legal risks associated with data storage in foreign jurisdictions. The lawyer must consider whether he or she can comply with British Columbian and Federal laws, such as laws governing the collection of personal information, when using third party service providers (see Part B).
o Who owns the data? Confidentiality and privilege are rights that lie with the client. Lawyers must ensure ownership of their clients’ information does not pass to the service provider or a third party.
o What happens if the service provider goes out of business or has their servers seized or destroyed?
o On what terms can the service provider cut off the lawyer’s access to the records?
o Will the lawyer have continuous access to the source code and software to retrieve records in a comprehensible form? Consider whether there is a source code escrow agreement to facilitate this.
o How easily can the lawyer migrate data to another provider, or back to desktop applications?
o Who has access to the data and for what purposes?
o What procedural and substantive laws govern the services? What are the implications of this?
o Does the service provider archive data for the retention lifecycle the lawyer requires?
o Are there mechanisms to ensure data that is to be destroyed has been destroyed?
o What are the lawyer’s remedies for the service provider’s non-compliance with the terms of service, service level agreement, privacy policy or security policy?
o Ensure the service provider supports electronic discovery and forensic investigation. A lawyer may need to comply with regulatory investigations, and litigation disclosure, in a timely manner. It is essential that the services allow the lawyer to meet these obligations. What is the service provider’s reputation? This essentially requires the lawyer to assess the business risk of entrusting records to the service provider. Lawyers should seek out top quality service providers. What is the service provider’s business structure? Lawyers must understand what sort of entity they are contracting with as this affects risk. Does the service provider sell its customer information or otherwise try and commoditize the data stored on its servers? Lawyers should strive to keep abreast of changes in technology that might affect the initial assessment of whether a service is acceptable. Services, and service providers, may become more or less acceptable in light of technological and business changes. What security measures does the service provider use to protect data, and is there a means to audit the effectiveness of these measures? A lawyer should compare the cloud services with existing and alternative services to best determine whether the services are appropriate. If using a service provider puts the lawyer off-side a legal obligation, the lawyer should not use the service. For example, there may be legislative requirements for how certain information is stored/secured. Lawyers should establish a record management system, and document their decisions with respect to choosing a cloud provider. Documenting due diligence decisions may provide important evidence if something goes wrong down the road. Consider the potential benefits of a private cloud for mission critical and sensitive data, along with information that may need to be stored within the jurisdiction.
With respect to certain trust records, the Trust Regulation Department at the Law Society of British Columbia recommends the following as best practices:
1. All bank reconciliations (for all trust and general bank accounts) should be printed the same date it was completed and stored in hard copy;
2. A full and complete trust ledger should be printed in hard copy at the close of each client file matter and stored in hard copy;
3. A master billings file should always be maintained in hard copy;
4. Have a disaster recovery plan in case the cloud provider shuts down. Regularly back up all files and records in possession of the member. Store backup files in a fire safe, safety deposit box;
5. All Members should print off or export to electronic file (i.e. pdf) all accounting records required by Division 7 Rules on an ongoing basis and store locally;
6. If client files are stored electronically, all key documents supporting transactions and key events on the file must be printable on demand in a comprehensible format (or exported to acceptable electronic format (ie PDF) and available for at least 10 years from the date of the final accounting transaction.
The Lawyers Insurance Fund notes that there may be data breaches and other risks in using a particularly technology, including cloud computing, that may lead to losses by lawyers and clients. These are not risks to which the professional liability insurance policy responds, so lawyers will want to consider the risks and how best to protect themselves as part of their due diligence. Steps that might be taken include: A lawyer should obtain informed client consent for the use of the services; A lawyer should require the service provider to indemnify the lawyer for any claims the lawyer faces as a result of using the service; and A lawyer should consider buying insurance on the commercial market to cover risks such as data breaches.

♬ Money talks, it’ll tell you a story
Money talks, says strange things
Money talks very loudly…♬

Lyrics and music by JJ Cale and Christine Lakeland, recorded by JJ Cale.

Rocket Lawyer Logo

The ABA Journal reported today that Rocket Lawyer has raised $18.5 Million Dollars from a group of investors that includes Google Ventures.

Rocket Lawyer ("The world's fastest growing online legal service") is part of a growing number of on-line legal form/self-help websites such as LegalZoom. Rocket Lawyer distinguishes itself from LegalZoom by offering the services of a lawyer to review the legal forms that the customer (client?) has created. LegalZoom offers a "Peace of Mind Review" by a "document specialist" but there is no representation on their web page that this document specialist is a lawyer.

The interest by Google Ventures and others clearly shows that the market is very interested in investing in these new legal product providers. According to the press release from Rocket Lawyer:

Our investors share our vision, and together we're dedicated to making legal services easy and affordable for everyone," added Dan Nye, Rocket Lawyer president and CEO.

Anyone who thinks these ventures are insignificant might wish to reconsider:

Over 15 million small businesses and consumers have used Rocket Lawyer's easy, web-based do it yourself tools and legal plans. Each month, more than 20,000 Last Wills and 40,000 Business Contracts are created using the site's step by step interview process.

These services offer not just simple wills and incorporations. LegalZoom, RocketLawyer's competitor, has a personal endorsement on its web page that states:

"I got my LLC, Patent and Trademark thru LegalZoom" per Chris Schutte of "Innovative Everyday Products."

The fact that investors are lining up to invest in these online legal service web sites indicate that capital markets are very interested in gaining further access to the legal industry. Of course outside of North America, the walls have started to crumble by allowing non-lawyers to take equity interests in law firms. Further changes will be occurring in the UK as the Legal Services Act starts changing the UK legal system.

Listen carefully – money is talking very loudly…it'll tell you a story..

These are notes are from a panel discussion session at the American Bar Association 2011 conference in Toronto last Friday, one of the Solo Day 2011 talks. Panelists included Charley Moore, founder of RocketLawyer, San Francisco, CA; Carolyn Elefant, solo practitioner and blogger (see MyShingle.com), Washington, DC , and Jay S. Fleischman, consumer bankruptcy lawyer at Shaev & Fleischman (see NewYorkBankruptcyHelp.com and BankruptcyLawNetwork.com) and online legal marketing consultant at www.LegalPracticePro.com . Note: these are my selected notes from this session; any inaccuracies or omissions are my own. I welcome your comments and follow-up thoughts!

The Virtual Law Office

Charley Moore provided a case study of a young solo practitioner as an example of someone who might be setting out to set up a virtual law office. He went through a series of advice for starting out:

• Having profiles on high profile websites will help build your reputation. You want to be on more than two sites; when potential clients Google you, you want them to find positive profiles that you have curated. For example: LinkedIn profile and a Facebook page for your practice
• "The fox knows many things; the hedgehog knows one big thing." Moore is a believer in "one big thing," i.e. figuring out your niche, what you are very good at.
• Organize your practice and know how to prioritize: blogging, LinkedIn and other social media presence
• Setting up a virtual practice means: cheap overhead (no office!), and convenient for your clients.
• If you don't need to print, you don't need paper storage.

Jay Fleishman on going virtual:

• you only need a cell phone and computer to provide legal services (a means of communication, and a means of storing and disseminating information).
• everything lawyers needs practice is in their brains
• "those pretty books sitting in your library are quite frankly garbage…those books are costing you money with real estate."
• he has not had an office phone since 2004; his local clients have a local phone number for him that takes them to an automated attendant. It rings to either his cell phone or his Skype line on his computer. He uses Grasshopper.com which costs him a lot less than traditional phone bills. It also sends him the messages as MP3 file attached to an email.
• if you go on vacation and you are solo and your client does not get you, "that's bad practice" – "you can either skip your vacations or you can use technology to allow you have work life balance. You can serve them better."

Moore:

He uses Google Voice (free service). On this trip he forgot his phone at home in error; he got a new Android phone in Toronto, threw in a new simcard and added one more number to Google Voice from the Internet, and successfully rerouted all calls to the new phone.

Clients actually love to hear he is learning and at conferences, tweeting what he is learning. This is client engagement.

Fleischman:

Advertising online gets things going online quickly. "All it's costing you is money." "It's getting you on the map incredibly quickly."

It is easy to get online fast, there are any number of services, for example:

• RocketLawyer
• Avvo
• Google Adwords

Search engine optimization (SEO)

Moore: You are thinking about search engine optimization. What are the optimizing elements on your website http://www.newyorkbankruptcyhelp.com/ ?

Fleischman:

A good web presence requires both marketing and promotion. Pure marketing moves people from one place to another on the site and only provides pure information. However, an information gatherer is very different from a do-it-yourselfer.

Site also has email updates and Consumers Guide to Bankruptcy. Both only ask for an email address to request them. The less information you ask for, the more likely you are to convert somebody. Once they sign up, you put them into a marketing database. He uses AWeber.

Moore: he uses Marketo

Elefant: a lot of people use MailChimp which is a free service; AWeber has extra spam protection.

Fleischman:

From the email updates, subscribers get an update each time he puts up a new blog post. If they opt in for the guide book, on a 3-4-3-4 day basis, they receive an email (pre-programmed). It is a pretty good bet they will be in front of the computer at the same time on the same day the next week; 7 days later, but you want communication before then.

Everything on the website is not high promotion, high sales. You want to make the offer in a very human way; you want to make the offer in a way such that you would not be offended by it if you were to receive it.

That is the process of turning a stranger into someone who has a sense that you know what you are talking about in your practice area, you are a nice person, and you have some authority.

Moore: Larry Rice is a good model of a practice that is a real expertise; that is why he is called on by CNN and CNBC. Get an area of expertise and blog about it, tweet about it. Write about your ideas and others' ideas. That will build your reputation and your authority. Search engines Google and Bing are supposed to direct someone to the best authority for something they are looking for.

Fleischman: BankruptcyLawNetwork.com – consumer bankruptcy site created four years ago. Over 125,000 visitors every month. All it is is a blog, 6,000+ individual articles. It has taken a lot of time but has only cost them time. The definitive sense of what an authority site should be. He gets clients coming to him who have read his blog extensively.

Question from the audience: are his fees posted?

Fleischman: No, but he doesn't think it would matter.

Moore:

By becoming an authority by blogging and podcasting, you start getting others linking to you. Fleischman's reputation has grown because he has done the work gradually every day over time, with more and more people linking to his site. Virtuous circle: "the more well known you get, the more well known you get."

Over time you will get more followers and more links; if you stick with it, you will build good reputation. But you have to do it every day and expect that it is part of practice. Keep doing it even if nobody is listening.

Carolyn Elefant on MyShingle.com

She has a widget for printing for each blog post so that posts print as one consumable piece.

She has a national practice, markets to other attorneys rather than to consumers. On her firm website she has videos and links to ebooks. Hers is based on a talk that she gave. When land owners call a particular agency, they print out her book and give it out to people because of the quality. Having somebody else market your information is very useful.

The site allowed her to create a micro-niche very quickly. Research the area, write an ebook about it, put it online, circulate it with a press release, send out to clients and it is a quick way to expand into a different area, target different people.

Her MyShingle.com site has a YouTube channel.

Solo practice can be isolating; she uses some tools just to learn about them and finds this enriching, even if they might not necessarily advance her practice. Twitter is not just for marketing, it is also a way to keep up to date. It's not just a marketing function.

She also started a trade association – OREC - Ocean Renewable Energy Coalition

Q&A

Moore: Currently RocketLawyer does not yet deal with Canadian lawyers.

Comment from audience member: You need to start.

Q: What about meeting in person?

Fleischman: being able to meet only electronically "is a hurdle"; he meets all of his clients face to face. He does not believe initial consultation needs to be face to face, but having a place to meet is important, even if it is a business centre. He is not big on meeting in coffee shops, but some do make it work. He often meets at client offices.

Elefant: because she has a national practice, she cannot always meet face to face; many clients are not on Skype yet. She will talk with them and answer as many questions as possible for them to make them feel comfortable. Virtual firms do not mean that you are always online, but having the ability to keep in touch online is a supplement to meeting in person. For some clients it is more convenient not to have to meet. She is also rigorous about follow-up, giving a weekly report and followup on what is being done.

Moore: Clients expect they can go online and see the data and documents online. This is a growing expectation.

Q: What about clients who want to know where my office is, and if I can scan in and fax them?

Moore: He didn't see this as an issue. This is not just for young people; 60+ is a growing demographic on Facebook

Q: How do you deal with Facebook?

Elefant: She suggests starting a Facebook page for your law firm so you don't have to friend people you don't know.

Fleischman: He takes the opposite approach; he will never put anything online that will embarrass him. He has no photos of his son on Facebook. Any photos where people tag him, he removes the tag. If someone friends themselves with him, they are not "outing" themselves as a bankruptcy client. No one needs to know why they are there. They are less likely to follow a firm page.

Elefant: If you take that approach, you can limit what certain people see.

During this session the General Practice, Solo and Small Firm Division of the ABA ("GP Solo") launched their Smart Soloing Center with tips and research sources. They will also be putting out an ebook shortly.

Note: This session was also recorded for the Legally Easy podcast (the RocketLawyer podcast). I will add in a link once that becomes available.

These are notes are from a panel discussion session at the American Bar Association 2011 conference in Toronto last Friday. Panelists included Arthur G. Greene, Boyer Greene LLC, Bedford, NH; T. Andrew Brown, Brown & Hutchinson, Attorneys at Law, Rochester, NY; Thomas C. Grella, McGuire Wood & Bissette PA, Asheville, NC; Ken Young, Young Mayden LLC, Charlotte, NC; and Mark Robertson, Robertson & Williams, Oklahoma City, OK & co-author of Winning Alternatives to the Billable Hour. Moderator was Prof. Gary A. Munneke of Pace University School of Law, White Plains, NY. Note: these are my selected notes from this session; any inaccuracies or omissions are my own. I welcome your comments and follow-up thoughts!

This was an informal discussion led by Prof. Gary Munneke. A range of topics concerning the legal profession and the management of law firms were covered. I found much of the discussion challenged or refuted common, widely-held beliefs. My overall take-away was that the nature of law firms are changing in some ways, but staying the same in others. There are differences between changes of small law firms compared to the large firms.

Question for Andrew Brown: Why did New York decide to undertake the study of the future of the legal profession?

[See undated press release from New York State Bar Association]

The Task Force was a project of immediate past president of New York Bar Association Stephen Younger – undertaken because of effect of the recession in 2007. They found the recession didn't cause the current state, but highlighted the issues. How could lawyers shape their own destiny?

See the April 2, 2011 NYSBA Report of the Task Force on the Future of the Legal Profession [pdf]

The report looked at three aspects:

• structure and billing
• training and education
• work-life balance integration

Structure and billing

They found that smart firms are looking at restructuring; firms of the future will look very different. If you are planning to practice for 3-4 years, you will be okay, but if you plan to practice longer, you need to look at changing.

Training and Education

The report included feedback from deans of 15 law schools; they were all interested in participating; the idea that law schools are not willing to change is not true.

Experiential learning is more costly; law schools have to do more in training of lawyers.

Work-life balance integration

Lawyers are looking to work with more flexibility. Not less or easier, but they expect more flexibility in their work. Technology is changing rapidly and we can take advantage of it with respect to structure and billing, work-life balance.

Q: Do the findings apply only to New York?

Brown: It is not just a New York thing. The team they pulled together for the Task Force had broader views of things. Much of what they talked about have equal application to firms across the United States and some outside the US.

Q: Originally it was thought that when the recession would be over things would get back to normal. But we now don't know when the recession will be over.

Brown: Downturned economy accentuated what was already festering. He doesn't think we will go back to the world as it was. He doesn't think there will be less legal work or less legal services, but the same number of attorneys will not be needed on U.S. soil.

Structuring and billing will not change; it is the pyramid structure of large and small law firms that will change. There will be more contract lawyers, increasing outsourcing (especially from India and China). Increasing technology use. A lot of what we are seeing is driven by technology.

The big changes we are talking about are not cyclical. We are not going back to the way the profession has been over the years. Things will look very different in the years to come.

Question for Tom Grella: What is it like for a managing partner in a big law firm? How do you deal with these forces affecting firms?

In managing a large law firm, he sees the need to focus on three areas:

• Flexibility
• Innovation
• Responsiveness

Those lawyers who only have 3-4 years left to practice perhaps do not have to worry about changing their practice. He has to emphasize being flexible with his partners. Ideas of the way things are changing may come from younger lawyers who are not yet partners.

They are attempting to get people to think in more innovative ways. They may be practicing traditionally but need to start thinking innovatively.

Two major forces on firms:

• Changing client expectations - clients are willing to jump to other firms to get their expectations met; he needs to continually push the importance of responsiveness to the staff
• Changing forms of competition

Q: Have you been responsive or reactive?

Grella: Both. When you don't do things as partners want, they may see it as just reactive.

They have done a lot of planning. A lot of strategic planning is different than it used to be. He has had to come up with creative ways to get them to do strategic planning:

• E.g. Economic crisis summit he ran in the firm over a weekend 2 years ago; looking at new areas of practice and new ways of practice; also things they were doing they might consider dropping. It was really strategic planning
• E.g. Partner commitment planning
• They are now doing succession planning.

Q: What about leadership management?

Grella: Leadership and management are two very different things. "Management ties us down and keeps us from being able to lead." Managing deals with day to day things. "Leadership lets us move forward." He is a fan of leadership: building trust and serving other people. It is very easy to lose trust and credibility with partners.

Q: What are the regulatory issues lawyers are facing in the changing environment?

Grella: More efforts (at least in N. Carolina) to regulate at the Bar level; however, it is becoming more difficult to regulate, especially with unauthorized areas of practice. It is getting harder to know what the practice of law is; it is getting harder to regulate.

Munneke: The shrinking professional monopoly combined with global work is causing changes.

Grella: In N. Carolina lawyers had a monopoly on real estate closes; they were going to be closed down by the government, but they were able to argue this kept costs down. They may not be as lucky to hold onto the monopoly in the future. In areas that look like they are doing the same as others, they need to find ways to differentiate.

Question for Arthur Greene: How will the future play out differently for large and small firms?

There have been a lot of layoffs and changes in the mega-firms; but approx 70% of lawyers are in smaller firms (under 50 lawyers). The recession has had an impact on smaller firms, but not as much as the larger firms. As long as they have had more than one practice area, they have survived.

He sees trends that will predict what will happen in 5-10 years for smaller firms. For small firms in the same community where lawyers have equal reputations, you would think they are doing equally well. However, when he looks at their financial reports (which he is privy to), he sees a disparity between firms and what managing partners are taking home.

Factors contributing to successful firms:

• leadership – firms that are doing well always had good leadership; firms that are not don't have the leadership and they don't understand that is their problem
• approach to marketing – networking and staying ahead of the curve in terms of clients is so much more important today
• being innovative – a lot of small firms are doing well being innovative
• attention to succession – firms are most at risk when the founder retires. Do they see themselves as a firm or individual lawyers? Is there an "institutional approach" in decision-making?

These areas are putting firms in a stronger position.

Q: You seem to be saying there will be less restructuring in small firms that are fairly lean than large firms that have a lot of associates at the bottom.

Greene: Yes. When large firms with "boat loads" of associates come up short on work, they can lose hundreds of thousands of dollars very quickly.Small and mid-sized firms are in a better position to manage their way through it. They were able to not lay off those who were important to their future. They laid off associates (and sometimes partners) that were not going to help them in the future.

Q: Are the competitors to firms: banks, paralegals and online services?

Greene: Yes, these are competitors to small firms; but there are great opportunities to small firms. Big firms grew because corporations became global; however, there is a lot of work that is local in nature. Those are the markets that are open to the small firms.

Q: Some people have said it is crazy to open a new practice at this time.

Greene: For someone just out of law school, it would take an extraordinary individual to open a practice. In cases of small firms spinning off of large law firms, there are opportunities for innovation, especially for more experienced lawyers.

Question for Ken Young: We saw a lot of lay offs of lawyers in 2008-2009. What did this teach us for hiring in the future?

Young specializes in employment of lawyers and opening offices. These four years have been very interesting in lawyer hiring.

3 Ls:

1.  leveraging in hiring is over - young associates flushed money up the pyramid to partners who perhaps were not working hard enough. This model is no longer happening. Associates are being hired for very specific needs (e.g. ERISA, bankruptcy). Smaller firms are being very careful. They are recommending to hire slowly; turnover is costly. Best firms are now interviewing candidates 4 times to get inside a person's
2. lock step - idea that if you make your goals you will become a partner. Now more large firms are going to large bands of associates; some associates may never get outside the firms band. Some may advance more quickly if they are entrepreneurial. A lot of partners also lost their jobs. Firms are now leaner, more careful about who they hire.
3. lower expectations – get inside the heads of those you are hiring and find out what motivates them. They may not want to make partner. In your hiring, you cannot assume that because they are top of the class they may not have the same five year plan you had when you came out of law school. Why did they go to law school? You've got to engage and get inside their heads. They might also not be trustworthy and someone you wouldn't want to send your clients to. They might not fit your culture. Even people who impressed you out of law school. When you talk with a young lawyer or a lateral candidate, take the time to talk to them and make sure they are like you and your firm.

Q: Is the idea of becoming an equity partner an impossible dream for students getting out of law school today?

Young: For someone to make equity partner in this market, they will have to be entrepreneurial. Not necessarily entrepreneurial in getting clients, but in developing an area of specialization that makes them a "go-to" person. But it makes a much more "special person" to become equity partner.

Q: If someone leaves the city, does the firm keep them on by virtually?

Young: Yes, smart firms are slow to hire and keep people on longer, even if it means letting them work virtually.

Q: Do younger people bail out and move to smaller firms to become partner? Is that even possible today?

Young: That is actually a good plan. If you are not going to make partner, it is good. He is seeing seven year lawyers (especially in New York City) who are willing to take four year positions.

Q: Do you see law firms using mergers and different alliances to bring in the talent they need and want rather than growing them?

Young: Yes, he just saw a merger between a 500 lawyer firm and a 45 lawyer firm where the point was not to grow larger. With the financial markets in London and Asia, we are going to continue to see mergers. Note if you have a 7 or 8 lawyer firm, you don't need to merge with someone to be bigger.

Q: If law firms grow by buying experience in talent, where do new lawyers get experience?

Young: Hopefully they get work where they can. They need to be smart with how they are practicing.

Several firms started by young lawyers from large firms: the entrepreneurial ones have teamed up with those they were in law school with to start a firm, but they had three years of training.

Question for Mark Robertson: Please comment on billing practices; in the New York Bar Association Task Force the one lightning rod issue was billing. People were saying hourly billing is dead, but large law firms said it would be back.

Robertson: Those who think alternative billing will disappear have their heads in the sand.

Alternative billing is historically not alternative; before 1950s, hourly billing did not exist. Clients were quoted a price and if they liked it, they hired the lawyer. They did not charge by the hour until the early 1960s. Before then they looked at the work they did, they would estimate what was fair. In the 1950s there was a study that said that lawyers who kept track of their hours made more money; lawyers after that "screwed it up."

Tracking hours is a measure of the lawyers' costs, not the value to the client. Hours should still be tracked to see if you are making money.

Wall Street firms were heavily influenced by their clients and had to cut staff. Many have a two-year gap in their succession plan. American Corporate Counsels (ACC): have put forward a value challenge that they ask or demand their firms follow. [see: ACC Value-based fee primer] Wall Street firms are more demanding; they look at the method of billing.

Additional thoughts:

Greene: With respect to billing methods: he was liaison to the Billable Hours task force from 1998. They spent a year working on the subject; it was a group of lawyers from a range of firms plus professors, and there was a division then also. At the time those who defended the billable hours were lawyers from New York and Washington who billed over $700 an hour.

Young: Clients like it when you approach work like a business person and not like a plumber.

Brown: What makes people fearful is the thought of losing money. When you talk abut changing billing structures, they get fearful because they think they are going to make less money. This is not true. He can think of ways they have the opportunity to make more money; they have to think in smart ways.

• Figure out ways to do the same work in less time, but at the same time you make clients happy.
• Knowing the law is not enough; you need to find ways to be entrepreneurial. Younger lawyers are going to be out there doing different kinds of work, impacting the profession.
• Contracting work is going to be big and continue to get big. Lawyers often need help; as law firms, you may looking at ways to service the needs of other law firms.

Grella: We are a business, and we are in business to make a profit. There was previously a big controversy about whether they are a business or a profession; however, they have a business to run. They have to be flexible and aware of the changing environment. You may a good leader and a good litigator, but you may not be the best person to be in charge of a practice group. Practice group leaders in his firm do not have training in marketing so they bring experts in. You should consider as your managing partner or CEO someone who is not an attorney; hire someone who has the skills needed to run an organization.

Robertson: Alternative billing does not just mean one fixed fee. One firm bills according to how the client sees value. There was a time when lawyers did tax returns, not accountants. Lawyers have a monopoly on representing people in court. Other than that, for most mainstream issues people represent themselves. Why are they hiring you to do something? Can they hire an investment banker to do a complicated transfer? As lawyers, need to define the value of services being provided to clients. Ultimately who decides what is reasonable is not you, it's your client.

Audience question (barrister from England): apart from solicitors, barristers can now partner with whomever they want. He practices with two paralegals.

Robertson: He advises young lawyers to get jobs as paralegals if necessary.

Audience question (representative from a law school): for law students who are graduating, how can they position themselves to be attractive to small firms?

Brown: if you are a law school turning out students for a smaller market, smaller firms are looking for students with experiential learning, clinical learning. Many interviewers are not asking about this, so it is sending the wrong message to the law schools.

Young: differentiating factors: if someone has worked between undergrad and law school, this shows someone who has a drive to work.

Grella: Tier of law school means nothing to him; he is looking for someone with good communication skills to talk with the client. He is looking for things people have traditionally not looked for in the past.

Munneke's concluding concepts

The economic model for large firms is changing; small firms are being affective. They are looking to a larger paradigm shift.

Other issues:

• contract lawyering
• public funding of law firms in the UK
• the general practice is dead, specialization is necessary
• the role of information is changing, clients can get it on their own.

Parting considerations:

• How will the organization and structure of your practice change?
• How will you train staff and lawyers?
• How will you find the balance between life and work?
• How will you harness technology to work for you?
• Who will be your clients?
• How will you reach them?
• What services will you provide?
• Who will be your primary competitors?

See also americanbar.org/lpm – some of the Task Force material will be posted there.