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

Here are the red flags:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Keep your guard up

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

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

How to handle a real or suspected fraud

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Help clients find your office

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

2. Electronic intake forms

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

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

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

3. Virtual meetings

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

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

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

4. Free long distance

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

5. Find time for a meeting

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

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

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

6. I’m thinking of you

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

   Some handy uses of Google Alerts include:

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

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

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

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

At yesterday's 5th Annual Federation of Asian Canadian Lawyers (FACL) Conference, Avvy Go and Julian Falconer spoke about mentorship and noted that large firms presumptively have resources that small and solo firms do not.

The future of legal practice management will invariably lie in technological solutions to strategic problems, especially for those with limited resources. I had a private tour earlier this week of the new LexisNexis product launched in Ontario, PCLaw Practice Suite, intended primarily for firms with 1 to 5 lawyers. The platform was developed after years of research and communication with small practitioners to assess and determine their needs.

The interface is clean, simple, customizable, and largely intuitive, and is set up under four tabs:

• My Practice — Daily schedule and deadlines, email administration, and key tasks.
• My Clients — Fast access to client matter details and status, as well as the ability to search and review client matters, related documents, and receivables and trust balances.
• My Business — Complete ability to automate time and fee billing and tracking, personal and firm key performance indicators, current budget, revenue to date, and accounts receivable and payable.
• Practice Guidance — Real-time access to legal and business information across general practice areas, including commentary, checklists and forms, case law, legislation, and professional news.

The practice tab provides an overview of dates and deadlines, and has an interface allowing interoperability with Microsoft Outlook calendars. This tab also has a "current awareness" module that imports RSS feeds. Our readers will find it interesting that one of the default RSS feeds already set up in the system is Slaw. The calendar incorporates a tickler, and will automatically update timelines for projects that require adjustment in an earlier stage of a matter.

The client tab has the ability to import documents in relation to a file, essentially providing an important tool for creating a paperless office. It also allows users to easily docket time for meetings, phone calls, and research, reducing the administrative burden of docketing considerably. This information can then be imported into invoices and updates to keep clients informed of the status of their file.

Client invoices aren't the only financial documents the system provides. The business tab assists in financial planning and budgeting, including breakdowns for different lawyers. Given the sensitivity of this type of information, it can be protected and provided on a restricted access basis to support staff or individuals who do not need this data.

But the most interesting part of this platform for me is the practice guidance tab. Small firms are often generalist in nature, especially when situated in smaller communities, and need to have competence in very different areas of law. In addition to practice management guidance and support, there is detailed information on business corporation, civil litigation, criminal law, employment law, family law, real estate, sale of a business, and wills and estates. The guidelines in these areas of law also link directly to QuickLaw, and to numerous forms within the practice suite that can be downloaded and completed with relative ease.

Go and Falconer's comments at FACL were pertinent because they claimed that minority lawyers are disproprtionately represented in discipline proceedings, largely due to lack of support within the bar. We are brilliant at funding the status quo, but not so good at creating the solutions needed to resolve the problem of proper supports for small and solo practitioners.

A commercial product like PCLaw Practice Suite might provide part of the technological solution to the lack of proper mentorship in the profession, and could go a long way to helping small and solo practitioners save time on administrative and research functions, allowing them to be more profitable. It's certainly worth looking into. And for those practitioners already accustomed with the old PClaw interface, there is an interface option to help with the transition.

LexisNexis is hosting 2-hour sessions discussing how PCLaw Practice Suite can support practice management on December 1, 2011 at 10am and at 2pm. The sessions have been approved for the Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Upper Canada, but is not accredited for Professionalism hours or for the New Member Requirement.

The press release from the launch is available here. More screenshots of the platform are available on my site here.

Over at the Small Firm Innovation blog there's been a number of terrific posts with some of the legal industry's top minds sharing their thoughts on time management.

Niki Black kicks the discussion off with a discussion of how the just-released iPhone 4S's digital assistant Siri can be used to more efficiently manage our time. Niki describes how Siri's voice recognition facilities not only allow iPhone 4S users to efficiently and easily create appointments, tasks to help with managing their time, but how they can save time by dictating these items while we would otherwise be unproductive (such as while commuting).

Chad Burton picks up this line of thinking with a description of how he manages his time using some old-school tricks, such as dictation, to help make the most of his time. By combining new technologies like cloud computing with "old school" technologies like dictation, Chad is able to get work done anywhere, anytime.

Jared Correia describes time management as a variant of task management in "Two Tiers in a Bucket: Time Management on Lock Down." Jared puts a novel metaphor at work by viewing tasks as boats moving through a canal lock system – by relentlessly reviewing and advancing tasks through this staged system, we will be able to keep on top of (and keep advancing) our most important tasks.

Donna Seyle shares her Top 10 tips on time management in "How to Manage Not to Waste Your Time" – importantly, Donna points out that implementing these time management techniques take time. In what will become a paradoxical non-starter to some, we need to budget time to implement time management practices.

Meanwhile, Carolyn Elefant, in a post titled "Got No Time for Time Management" outlines her skepticism of time management practices in general. So-called time management consultants try to sell us a utopia where we go home at 5 PM sharp with everything on our to-do list crossed off, but the realities of the modern workday make this an impossible (and maybe even an undesirable?) end-game.

What are your thoughts on time management? Let me know about your own tips and tricks in the comments.

Fraud attempts against lawyers can involve a great deal of counterfeit documentation, starting with the initial client ID (passports, licenses), various agreements, loan documents and bank statements, and ending with the cheque that finally arrives at the lawyer's office. When we add posts about a fraud to the AvoidAClaim blog, we also provide images of these fake documents that lawyers have provided to us.

On a new page on the AvoidAClaim blog we have post a large selection of the fake passports, licenses, documentation and cheques in one place. The page is called "Huge collection of fake IDs, documents and cheques given to lawyers")to give an idea of the abundance and quality of the forged documents being used to try to ensare lawyers and make scams seem credible. Displaying the images in this way also reveals that many of the forged IDs are identical, and multiple fake personas can be made from a single stolen passport:

We have numerous examples of:

Passports;

Driver's licenses;

Assorted documentation;

And cheques.

We often get asked “how could anyone fall for these scams?” This page demonstrates just how sophisticated the fraud attempts can be. Visit this "Huge collection of fake IDs, documents and cheques given to lawyers") to see for yourself.

Cross posted at AvoidAClaim

Hats off to the judges present and past (four retired judges) of the Prince Edward Island Court of Appeal who are giving up evenings in November to provide educational sessions for islanders on PEI's courts, the Charter of Rights and Freedoms, public law, criminal law, civil law and family law. It will also include a tour of the Sir Louis Henry Davies Law Courts building where participants can see the courtrooms, holding cells, law library and public areas.

The free sessions will take place November 8, 15 and 22 starting at 6:45 p.m. and registration is limited to 50 people. Registration starts Oct. 26 and anyone interested in taking part can call Sheila Gallant at 902-368-6024 or send an e-mail to sfgallant@gov.pe.ca.

Curious that the website for the courts hyperlinks to the Federal Courts Administration website – whoever did the linking needs to attend in November to understand the court system.

Next to the Guardian where George Monbiot's argument on the expense of scientific information is applied to legal information – the piece is by Judith Townend under the lede The law that wants to be free – Reams of legal information are still squirrelled behind paywalls. Yet more and more lawyers are sharing their knowledge for free.

It is encouraging to see an increasing growing move towards online publication: the Ministry of Justice's proactive digital engagement; the release of judgment summaries by the supreme court; an emphasis on openness by the Master of the Rolls; and an increasing number of published judgments made available. Initiatives such as a recent MoJ family courts pilot are to be welcomed. It tested out publishing more magistrate and county court judgments, with the aim of increasing transparency and improving "public understanding of the family justice system".

"It strikes me that if anything it is a good thing for the press to be able to have access to the court's raw judgment, rather than relying on the account of a select few parties to the case," wrote legal blogger and researcher Lucy Series.

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David Allen Green will publish a weekly round-up of UK legal blogging for The Lawyer. Should be worth following: here are three pieces I had missed:

A complaint from in-house counsel about the casual attitude lawyers take to the confidentiality of client matters, when working on public transit – the message is just as relevant this side of the Atlantic.

The General Counsel of the Financial Times on why legal costs are outrageously unjustifiable

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Lest you think that this is all based on Jonathan Sumption's rumoured £10 million plus retainer in the Roman Abramovich Battle of the Oligarchs case – Slaw readers will be encouraged to learn that the soon-to-be Lord Sumption owns 7,000 volumes on the Hundred Years War – here is a piece on why GCs feel the same way here.

The OIPC BC released Guidelines for Social Media Background Checks yesterday. The Guidelines were developed "to help organizations and public bodies navigate social media background checks and privacy laws."

The Guidelines outline the privacy risks associated with the use of social media to screen and monitor current and prospective employees, volunteers and candidates, including:

The collection of potentially inaccurate personal information;

The collection of too much or irrelevant personal information;

The inadvertent collection of third-party personal information; and

The overreliance on consent for the collection of personal information that may not be reasonable in the circumstances.

The Guidelines also provide additional information on what to consider and what to avoid when performing social media background checks.

This morning's Intapp Law Firm Risk Management Blog features a piece I recently published in Managing Partner Magazine in London entitled: "Managing Screens," which explores the tension between tightly controlling access to sensitive client (and firm) information and fostering internal sharing, which I characterize as: "the potential of exploiting collective professional knowledge."

"What has changed is that, in the past decade, so-called ethical screens have proliferated within law firms. Ethical screens are what used to be called Chinese walls: institutional mechanisms combined with technological safeguards and personal undertakings which ensure that confidential information is tightly protected."

"These are also used when clients or courts require objective safeguards to ensure that confidentiality will be strictly maintained on a need-to-know basis. For example, firms which are retained to act on hostile takeover bids will generally open files under code names and limit access to market moving information."

"Most large Canadian law firms have over 500 screens at any one time and, once erected, they are notoriously slow to get dismantled."

"Why does this matter for KM? Because once a client and its matters are screened off, the entire contents of those files are unavailable for future use. It is as if that knowledge doesn’t exist in the firm."
He argues several provocative implications of the growing confidentiality trend: "At a certain point, the number of screens will not merely make KM impossible but will make the firm less than a partnership and more like a group of solo lawyers or small firms working within a scattered archipelago of practice."

And I go on to provide several suggestions and approaches for "creatively managing the tension between KM and professionalism."

Last week the Law Society of Upper Canada issued Guidelines for Law Office Searches.

Such searches are rare but when they do occur, lawyers must realize that they have certain duties and obligations to protect solicitor-client privilege, which is a fundamental right belonging to the client. The Supreme Court of Canada has held that the Criminal Code procedures governing law office searches were unconstitutional. So when a search occurs, lawyers are advised to consult the Guidelines, which are intended to assist them in protecting the common law solicitor-client privilege of their clients and which also provide best practices and general advice for dealing with particular situations.

Here are the highlights:

WHEN THE POLICE ARRIVE AT A LAW OFFICE
Inspect the search warrant
• Ensure that the law office is identified as the place to be searched,
• Ensure that the date the Police have attended at the law office is the date authorized,
• Ensure that the documents sought are identified,
• Ensure that the offence under investigation is identified,
• Ensure that the requisite judicial officer has signed and dated it,
• If there are deficiencies on the face of the warrant, point them out to the Police and assert that the Police should obtain a proper warrant, and
Do not obstruct the Police, even if you believe the search warrant or its manner of execution to be invalid.
Assert Privilege over all documents to be seized under the search warrant.
Is a Referee required?
Where the Lawyer may be a target of the investigation, if the Lawyer is in a conflict of interest and where there is no Lawyer present, this should be raised with the Police and either the Police or the Lawyer should make an application to the Court for the appointment of a Referee.
Is an Independent Forensic Computer Examiner required?
If the documents sought are on a computer or other electronic device/media, the assistance of a Court appointed Independent Forensic Computer Examiner may be required.
Do I need a Lawyer?
You are the only one who can answer that question. However, you can contact a Lawyer and you may find it helpful to speak with a Lawyer.
Lawyers should contact the Law Society at 416-947-3300 and ask to speak to Senior Counsel to
the Director of Professional Regulation for assistance when faced with a law office search

Next steps to be taken by the Referee or the non-conflicted Lawyer
• Keep notes of participants, contacts, happenings and timing,
• Identify and assert privilege with respect to all documents,
• Offer to, or if requested by the Police, locate the documents and, where practicable, make and keep copies of them,
• Comply with the terms of the search warrant and give only what is demanded by the warrant,
• Retain copies of all documents, to the extent that it is possible, time permitting,
• Offer to, or if requested by the Police, seal the documents in packages marked for identification and
initialed by you and the Police; taking care to ensure that the Police do not see the documents or any client
names,
• Ensure that the sealed packages are delivered to the custody of the Court or an independent third party as designated by the Court in accordance with the Court order, and
• Make reasonable efforts to contact the Clients whose documents are subject to seizure to advise what is happening and advise that they may wish to obtain independent legal advice.
The Search Warrant has been executed – Next Steps
If necessary initiate or respond to applications before the Court that may include applications for,
• An order to unseal and access the sealed packages,
• The appointment of a Referee or an Independent Forensic Computer Examiner,
• The determination of objections to the search warrant or its manner of execution,
• The determination of issues of solicitor-client privilege,
• Further searches such as a comprehensive electronic search of an electronic device/media or a forensic image, and
• Direction with respect to the notification of the Clients of the search for and seizure of solicitor-client
privileged documents.

The law is well described here and the entire report to Paul Schabas' committee is here.

Paul Venezia of InfoWorld asks why the fax machine refuses to die. In what is a bit of a rant rather than a reasoned analysis, Venezia advises:

Consider what a fax machine actually is: a little device with a sheet feeder, a terrible scanning element, and an ancient modem. Most faxes run at 14,400bps. That's just over 1KB per second — and people are still using faxes to send 52 poorly scanned pages of some contract to one another. Over analog phone lines. Sometimes while paying long-distance charges! The mind boggles.

A few reasons come to mind as to why some people still fax. One is that despite an economy that whips up lust for the latest tech gadget, we have a strong conservative bent when it comes to technology (as with many other aspects of our lives). After all, we're still using internal combustion engines in our automobiles and talking on telephones connected together with wires. And fax machines can claim a long pedigree — and a Scotsman at the source. Evidently one Alexander Bain in 1843 patented:

improvements in producing and regulating electric currents and improvements in timepieces and in electric printing and signal telegraphs

Another reason, one said to be favoured by lawyers and doctors, has to do with the dubious understanding that a faxed document, particularly a signed faxed document, has greater authenticity in the eyes of a court than an emailed document.

A discussion on MetaFilter raises a number of other reasons why we still cling to faxes: it's easier to fax than to scan and email an attachment; phone lines are more secure than the internet; using phone lines may be cheaper in some circumstances; and fax machines kick out a certificate of delivery.

So, do you still fax? And if so, why?

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.

It goes without saying that balancing family while working for a "big-law" firm can be a challenge. I am reminded of that on a weekly basis. Other jobs are just as demanding (if not more). It has become de rigueur for employers (especially law firms) to tout their approach to promise a positive work-life balance. However, there are few ways to confirm that an employer's advertising confirms with their employees' reality.

In response to this issue, the Quebec government has launched a unique program: a corporate certification regarding work-family balance. The certification is for all businesses, regardless of their size. It will allow the companies who qualify for certification to be seen as employers of “choice” because of their efforts to promote work-family balance. The Québec Minister for the Family, Yolande James, believes that it will even be a competitive recruitment advantage for certified companies. Indeed, the certified companies can also use the certification symbol of the Bureau de Normalisation du Québec (“BNQ”) for promotional purposes.

The BNQ’s information pamphlet can be downloaded for free and contains several examples of measures that companies can take to promote a better work-life balance. Examples include offering services such as child care in the workplace, the granting of additional leave for family reasons, a compressed work week, a flexible schedule and creating opportunities for employees to telecommute.

Would you be more willing to work for a company with BNQ certification (or another provincial equivalent)?

Canada's Privacy Commissioner announced the release of "PIPEDA and Your Practice — A Privacy Handbook for Lawyers" (also available in a PDF version) at the Canadian Bar Association Canadian Legal Conference and Expo 2011. As the handbook says:

In some cases, the requirements of PIPEDA mirror lawyers’ existing professional requirements. In other cases, navigating the requirements of PIPEDA in a legal practice can add further complexity. Lawyers must not only consider their own privacy obligations but also the different obligations that each of their clients may face. Privacy obligations applicable to clients can sometimes restrict what lawyers can do with personal information they collect, use or disclose on their clients’ behalf.

The Table of Contents is set out below.

• Introduction
• Lawyers and Privacy
• Scope of this handbook
• Application of PIPEDA
• Requirements of PIPEDA
• What constitutes “personal information” under PIPEDA?
• What constitutes “commercial activity” under PIPEDA?
• Knowledge and consent under PIPEDA
• Office of the Privacy Commissioner of Canada
• Privacy Issues in Managing a LAW Practice
• Overview
• Collection of personal information
• Use and disclosure of personal information
• Providing access to personal information
• Safeguarding personal information
• Retention of personal information
• Data breaches
• Employee personal information
• International issues
• Privacy issues IN CIVIL Litigation
• Application of PIPEDA to litigation
• Express consent, implied consent and exceptions to consent
• Privacy issues arising in preparation for litigation
• Privacy issues arising in the course of litigation
• Access requests and litigation
• Conclusion

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.

Luigi Benetton has published a nice article called "Knowledge Management Know-How" in the current edition of The Lawyers Weekly.

The article quotes me and fellow SLAW contributor Dominic Jaar, but what I like about the article are the viewpoints from others in the industry and the wide range of tips and advice on best practices.

What I find with knowledge management is that there is usually never a single approach or method and varies a fair bit depending on the type of organization, its culture and staffing.

In fact, there has been lots of discussion in the past several years as to whether knowledge management is dead or not.

I prefer to think it is alive, but evolving, with many in legal knowledge management increasingly getting involved with the other "management" aspects of law practice, including risk management, project management and client management.

With knowledge management, however, I have often wondered if it is perhaps time to describe knowledge management in better terms (particularly since it seems slightly oxymoronic to think about "managing" knowledge – can you manage knowledge?). At the SLA conference this year in Philadelphia colleague Katharine Thompson attended a workshop by Guy St. Claire and others of SMR-Knowledge.com where there was discussion on using the "Knowledge Services" as better describing what we do (especially since we are in a service industry). I find "Knowledge Services" to somehow seem fresher than "Knowledge Management."

How important is the name or description of what we do?

In part because I came to knowledge management through law practice as a lawyer, researcher and law librarian, what I feel most strongly about in Luigi's article is the notion of "integrated" services – that it is best to not distinguish between library, legal research, precedents, training and the other aspects of information and knowledge management. It truly should be a one-stop shop for information, whether from internal memos or precedents or from external databases or other sources.

Back in May I wrote about two sets of proposals that may impact the adoption of cloud computing technology among lawyers.

The first set of proposals comes from the ABA Commission on Ethics 20/20, which has issued an initial set of draft proposals addressing lawyers’ confidentiality-related obligations when using technology. The second set of proposals comes from the North Carolina State Bar in the form of in Proposed 2011 Formal Ethics Opinion 6 – Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property.

Last week the comment periods for both proposals closed, and a number of individuals and organizations have published open responses to either the ABA, the NC State Bar or, in some cases, both. Let's look at those responses and see if there are some common threads (if I have missed any relevant posts, please let me know in the comments):

ABA Commission on Ethics 20/20

• They Listened, they Really Listened by Carolyn Elefant, a frequent advocate of solos and small firms and author of the popular MyShingle blog. In her post, Carolyn applauds the Commission for incorporating the feedback she provided in response to the Issues Paper the Commission published. Carolyn went to great lengths to generate interest in the Commission's efforts among solo and small firm lawyers – even going as far as to roll out a portal to act as a hub of information and communication – and her efforts clearly paid off.
• Maintaining Confidentiality in the Information Age by Niki Black, a legal technology expert and author of an upcoming book from the ABA on Cloud Computing. Niki describes the proposed new rule 1.6c) and its accompanying comment as a "broadly framed, elastic standard that assists attorneys in making careful choices about the technologies that best fit their individual practices."
• Response to Commission on Ethics 20/20 Proposals by the Legal Cloud Computing Association, a consortium of leading cloud computing providers (disclosure: my company, Clio, is a member of the LCCA). In its open letter, the LCCA expresses its full support for the proposals made by the ABA Commission on Ethics 20/20, and thanks the ABA for contemplating the feedback provided in response to the original Issues Paper published by the Commission.

The general consensus among these authors is the ABA Commission on Ethics 20/20 has done a commendable job of incorporating feedback from lawyers and vendors alike, and has arrived at a set of proposals that are sufficiently flexible to accommodate a broad range of technologies, cloud-based and on-premise alike, in the practice of law.

North Carolina State Bar Proposed 2011FEO6

• Proposed NC Bar Opinion Limits Cloud Computing by Niki Black, a legal technology expert and author of an upcoming book from the ABA on Cloud Computing. In her post Niki cites a number of onerous requirements proposed by the FEO, and concludes the opinion in its current form is likely to severely impede the adoption of cloud computing among NC lawyers.
• Ethics Of Cloud Computing In NC – Take 2, by Erik Mazzone, a legal technology expert , Practice Management Advisor, and Director of the Center for Practice Management at the North Carolina Bar Association. Erik concludes the proposed FEO's requirements of cloud computing providers, in particular the requirement that data be stored only within a specified geographic region, is unlikely to be met by cloud computing providers. While legal-specific cloud applications may contemplate rewriting their legal agreements to accomodate NC, non-legal-specific providers, such as Google, Dropbox, Evernote and others, are almost certain to ignore whatever requirements the NC State Bar requests of them. The end result, Erik concludes, is that NC-based lawyers will "be prohibited from using some of the best, most secure, most reliable, most cost-effective software available."
• Response to North Carolina State Bar Proposed 2011FEO6 by the Legal Cloud Computing Association,a consortium of leading cloud computing providers (disclosure: my company, Clio, is a member of the LCCA). The LCCA concludes the onerous requirements of the Proposed FEO, detailed in full in the LCCA’s response to the NC State Bar, would force many cloud computing providers to withdraw from the NC market entirely, thus negatively impacting the technological capabilities and competitiveness of NC-based law firms.

The consensus on the NC Proposed FEO is that, while well-intentioned, as written it would have the net effect of making the vast majority of cloud-based applications inaccessible to NC-based lawyers.

What are your thoughts on these proposals? Please share them in the comments.

On occasion, lawyers have engaged in activities that have made them front-page news, subject to embarrassment and possibly lawsuits or discipline complaints. Not only can this kind of attention be bad for a lawyer’s reputation, it can also damage or even destroy client relationships.

That’s reason enough to be aware of and avoid activities that could lead to these types of outcomes. But there is another – equally if not more compelling – reason to avoid them: In some instances, it may be the law firm, not LAWPRO (or your own malpractice carrier if you are outside Ontario), that foots the bill when these activities lead to problems.

The comments in this article are specific to the LAWPRO policy as it applies to Ontario lawyers. However, the concerns hightlighted are relevant to all lawyers, although non-Ontario lawyers will want to review the provisions of their malpractice policies to understand the coverage implicaitons in their respective jurisdicitons.

Remember that the LAWPRO policy provides coverage that is tailored to your role as a lawyer. The policy affords protection against claims for damages arising out of a claim, provided liability is the result of an error, omission or negligent act in the performance or failure to perform “professional services” for others.

What will or will not be covered can be very fact-specific; but generally you will be insured for the work you do with your lawyer hat on, and not insured for activities where no solicitor/client relationship exists and no legal advice or service is provided.

This article highlights some of the dangerous activities that can lead to problems that will likely not be covered under the LAWPRO policy.

Don’t infringe copyrights or trademarks
The very foundation of the web is the ability to easily and broadly share information with others. When lawyers or law firms are posting information online they will sometimes include trademarks or information upon which others hold the copyright. With “cut and paste” it is easy and tempting to use large amounts of information from another source in a newsletter or in content for the web. Remember there are few, if any, scenarios where it can be argued that the use of trademarks or copyrighted information without permission was in some way professional services for a client. So, be especially careful to avoid the use of trademarked or copyrighted information unless you have consent, as this may result in expensive claims that are not covered by professional liability insurance.

Be careful what you say about others
The web’s informality makes it easy for the unwary to fall into saying something inappropriate about someone. Aggressive or nasty comments made in an unguarded moment or in the heat of a contentious matter can well result in a defamation claim. Making a nasty comment to the media, online or elsewhere, in the course of providing professional services for a client isn’t worth it. The circumstances in which the comments were made can determine whether the LAWPRO policy coverage is triggered as well as whether the policy exclusion addressing defamation of character applies. That exclusion is worded as follows:

LAWPRO policy excerpt
Part III Exclusions
The policy does not apply:
(e) “…to any CLAIM in any way relating to or arising out of INJURY to any person, or to mental anguish, shock, humiliation or sickness, disease or death of any person, or destruction or loss of any tangible property, including the loss of use thereof, unless as a direct consequence of the performance of PROFESSIONAL SERVICES;”

The word “INJURY” is defined in Part V: Definitions as follows:
“INJURY means bodily injury, false arrest, wrongful detention or imprisonment, libel, slander, defamation of character, invasion or violation of privacy, assault, battery, sexual misconduct, harassment, discrimination or wrongful dismissal.”

Often, no coverage is available for defamatory comments made about a non-client. If you want it, some protection for defamation type claims may be available through other forms of insurance offered by commercial markets. Consider speaking with your insurance broker about this.

Be wary of what others say in replies to your social media conversations and in comments on your blog
The defamatory comments of third-parties can also expose a lawyer to defamation law suits. Comments on blogs and social media tools allow total strangers to take part in very public conversations. Although a real benefit for sharing information, these conversations can have very negative consequences when someone posts something inaccurate or unpleasant – both of which can be judged in the biased eye of the beholder. Carefully monitor (and consider moderating) the comments posted to your personal or firm blog and the replies to any conversations you have using social media tools. You want to avoid being sued due to (allegedly) defamatory comments that appear in conjunction with you or your firm.

Avoid the unauthorized practice of law (UPL)
Lawyers need to appreciate that any content they post on the Internet can easily be accessed from anywhere in the world. Ontario lawyers practising law in other jurisdictions by providing legal services on the Internet should respect and uphold the law of the other jurisdiction, and not engage in the unauthorized practice of law. Clearly indicating the jurisdiction(s) in which you are licensed to practise in your online content and posts will help potential clients understand where you can and cannot practise. You want to avoid a negligence suit in a jurisdiction outside of Canada involving non-Canadian law.

Avoid online dangers
Social media sites and other online tools offer lawyers all sorts of interesting new ways to interact with people in both personal and work spheres. There are, however, some risks associated with using them. Some of these risks are obvious, some are not, and many won’t be covered by the LAWPRO policy. The “Social Media Pitfalls to Avoid” article in the December 2009 issue of LAWPRO Magazine highlights the risks – and how to avoid them. You might want to review that article if you have not already done so.

This article originally appeared in the September 2010 edition of LAWPRO Magazine. It is available in the magazine archives.

I have recently returned to work after a maternity leave. Now I am struggling with how to get back up to speed on all things legal research-related. Despite my best intentions, I was unable to stay on top of Slaw posts or Supreme Court decisions while at home. Now I am constantly second-guessing my research, worried that I have missed some new resource or decision. On the plus side, I am pleasantly surprised when I discover 'new' features on my favourite websites and online databases; of course, I have no idea how long they've been there, or what other ones I may be missing, but the ones I find I try to enjoy. I have (mostly) come to terms with the fact that I will just have to be extra-thorough in my work, trying to fill in a one-year gap, realizing that it is not possible to be on top of everything all the time. But I was wondering if you had any suggestions for getting back up to speed after being away from the legal research field, perhaps on a parental leave, medical leave or sabbatical. Are there any resources on this subject out there that I've missed, or has this topic been raised on Slaw in the past year?

TED Curator Chris Anderson suggests that we help curb the proliferation of emails by subscribing to a Charter that he and fellow TEDer Jane Wulf have devised. He argues that in some sense we have all joined spammers in contributing to the modern "tragedy of the Commons" that our summed-up bad behaviours have produced. You'll get a much better idea of what he means by reading the actual Charter, set out below. (It's available as plain text and as a PDF, also, in case you want to pass it around the office — not by email.)

1. Respect Recipients' Time
This is the fundamental rule. As the message sender, the onus is on YOU to minimize the time your email will take to process. Even if it means taking more time at your end before sending.

2. Short or Slow is not Rude
Let's mutually agree to cut each other some slack. Given the email load we're all facing, it's OK if replies take a while coming and if they don't give detailed responses to all your questions. No one wants to come over as brusque, so please don't take it personally. We just want our lives back!

3. Celebrate Clarity
Start with a subject line that clearly labels the topic, and maybe includes a status category [Info], [Action], [Time Sens] [Low Priority]. Use crisp, muddle-free sentences. If the email has to be longer than five sentences, make sure the first provides the basic reason for writing. Avoid strange fonts and colors.

4. Quash Open-Ended Questions
It is asking a lot to send someone an email with four long paragraphs of turgid text followed by "Thoughts?". Even well-intended-but-open questions like "How can I help?" may not be that helpful. Email generosity requires simplifying, easy-to-answer questions. "Can I help best by a) calling b) visiting or c) staying right out of it?!"

5. Slash Surplus cc's
cc's are like mating bunnies. For every recipient you add, you are dramatically multiplying total response time. Not to be done lightly! When there are multiple recipients, please don't default to 'Reply All'. Maybe you only need to cc a couple of people on the original thread. Or none.

6. Tighten the Thread
Some emails depend for their meaning on context. Which means it's usually right to include the thread being responded to. But it's rare that a thread should extend to more than 3 emails. Before sending, cut what's not relevant. Or consider making a phone call instead.

7. Attack Attachments
Don't use graphics files as logos or signatures that appear as attachments. Time is wasted trying to see if there's something to open. Even worse is sending text as an attachment when it could have been included in the body of the email.

8. Give these Gifts: EOM NNTR
If your email message can be expressed in half a dozen words, just put it in the subject line, followed by EOM (= End of Message). This saves the recipient having to actually open the message. Ending a note with "No need to respond" or NNTR, is a wonderful act of generosity. Many acronyms confuse as much as help, but these two are golden and deserve wide adoption.

9. Cut Contentless Responses
You don't need to reply to every email, especially not those that are themselves clear responses. An email saying "Thanks for your note. I'm in." does not need you to reply "Great." That just cost someone another 30 seconds.

10. Disconnect!
If we all agreed to spend less time doing email, we'd all get less email! Consider calendaring half-days at work where you can't go online. Or a commitment to email-free weekends. Or an 'auto-response' that references this charter. And don't forget to smell the roses.

I'd add that you should stop self-inflicted additions to the inbox and get your blog updates via RSS instead of email. Here at Slaw, we're keen — nay, eager — to have you read us; but we've no wish to add to your sense of email overload.

I'm going to adopt #8 for sure. And, though it pains me, I'll also buy into #9. And I think I'm easy with the rest.

How about you?

Lawyers and their clients are more mobile than ever before. With the Internet, easy international travel and a global economy, relationships and business transactions – and legal matters and disputes – frequently cross international borders. Handling matters that involve foreign law can increase the risk that you will face a malpractice claim, and can have important malpractice insurance implications that you should keep in mind.

This article highlights activities and situations involving dealings with foreign lawyers and foreign law that can lead to situations that will likely not be covered under your E&O policy.

E&O issues
Remember that the LAWPRO policy provides Ontario lawyers protection for claims that are the result of your error, omission or negligent act in the performance or failure to perform “professional services” for others involving the practice of the law of Canada, its provinces and territories. What will, or will not, be covered can be very fact-specific, but you should expect that you are not covered for work involving non-Canadian law. Lawyers outside Ontario should check with their own insurer. Moreoever, in our experience, claims involving foreign law tend to be very expensive and are frequently for amounts in excess of the LAWPRO program limits. These claims also often involve some type of joint venture arrangements that are sophisticated frauds or are intended to dupe the lawyer and/or client.

In addition to raising insurance issues, giving advice with respect to foreign law in a jurisdiction where you are not admitted could expose you to an unauthorized practice of law prosecution, even assuming you have sufficient knowledge of the foreign law in question.

Don’t overlook or take shortcuts on basic file-opening procedures when handling matters involving foreign law, even where the client also directly retains foreign counsel. Client ID and conflicts checks are necessary to ensure you identify any issues they raise with respect to clients involved with other matters at your firm.

As much as you may want to help a client, don’t be tempted to give even the most basic advice with respect to foreign law, even if you know for certain that the information is correct. Just telling a client about a foreign law deadline or commenting on a few words in an agreement governed by foreign law fully exposes you to a claim.

And, don’t give foreign advice and try to pretend you are not doing so. LAWPRO sees this scenario when lawyers write long opinion or reporting letters providing information and advice on foreign law, but also include a disclaimer with respect that information and advice at the end of the letter. Of course, the disclaimer states that the information in the letter is not to be relied on and that the client should get a foreign lawyer. Despite the disclaimer, you are potentially in trouble if a client relies on the information in the letter.

Tricky scenarios
There are some common scenarios where foreign law issues can sneak up on you. For example: What country does that tiny little governing-law clause at the end of the contract specify – Canada or another country?

Consider as well if there are local law requirements that might frustrate what you are trying to accomplish. This can arise if you are drafting a will gifting real property located in another country. A will that is otherwise valid under Ontario law, may not be valid and cause the gift to fail under the law of the country where the property is located due to non-compliance with local execution or attestation requirements. There can also be local requirements involving taxes, bookkeeping or records when there are transfers of money, securities or real property.

You will likely be dealing with a foreign counsel if your client needs assistance on a matter in a foreign jurisdiction where you are not admitted and insured. LAWPRO strongly advises you to consider having the client retain the foreign counsel directly. This will give the client a direct relationship with foreign counsel, rather than a relationship that flows through you. Although not a guarantee, this can help insulate you from a malpractice claim by your client for the work done by the foreign counsel.

Clearly document the advice given to your client with respect to the requirement for advice from a foreign law qualified counsel. Ideally, your retainer should also explicitly provide that your advice will solely be respect to the laws of Canada.

Beware of the potential for a “right-hand left-hand” disconnect when dealing with foreign counsel. This can easily happen where there are language barriers or time pressures due to a pending closing date on very complex corporate transactions in which the client has local and foreign entities involving multiple lawyers in different countries. LAWPRO sees claims in these situations when changes in plans or revisions to draft documents are not communicated to all who need to see them.

Malpractice coverage: Is there any?
When dealing with foreign law and lawyers, ask your clients if they expect a certain minimum level of malpractice coverage. Client expectations and requirements can vary. Also ask if the foreign counsel has legal professional liability insurance. Don’t assume this is the case! In most jurisdictions lawyers are not required to have malpractice insurance, and even if they do, the coverage can be substantially less than LAWPRO ’s standard coverage or $1 million per claim, $2 million in the aggregate.

Ask foreign counsel how much coverage they have. What is covered and what is excluded? Are there limits in the policy or by agreement with the client? Although Ontario law forbids any agreements between lawyer and client that would limit a lawyer’s liability, such limitations are common practice in some other jurisdictions. Get a copy of the foreign lawyer’s professional liability policy and review it to determine if there are other provisions that cause concern. Consider as well the obligation to maintain insurance in case a claim arises many years after the work was done.

If you are dealing with a situation where there is foreign malpractice insurance, ask yourself these additional questions:

• What are the foreign malpractice insurance requirements?
• Does the foreign jurisdiction have minimum requirements? Minimum limits? Required coverage through the local Law Society or Bar?
• And if your firm has coverage for foreign legal work in place, are foreign carriers allowed to provide any or all of the insurance that you require?
• If coverage is required, what levels of insurance are available in the foreign jurisdiction?
  Consider how to structure your insurance coverage to avoid any gaps.

Other considerations involving foreign jurisdictions
And while not directly insurance-related, consider the other often complex requirements that can come into play if you are working on matters in a foreign jurisdiction, and in particular if you are physically doing work there.

These can include:

• finances, banking and retainer arrangements and records
• entity structure
• professional regulation and licensing
• corporate and business regulation
• criminal and civil regulation
• taxation
• immigration and employment regulation
• insurance
• client expectations and needs
• national culture.

For a much more detailed outline of issues to consider, see the ethical requirements document for “registered foreign lawyers” or RFS’s that the Solicitor Regulation Authority in the United Kingdom has published.

Handling legal matters that touch on foreign law and issues are becoming more commonplace for many lawyers. Exciting and rewarding as these matters may be, they need to be handed with caution and care, as coverage for these types of matters generally will not fall within the scope of LAWPRO coverage. Recognizing this, lawyers are well advised to structure their retainers to ensure the client understands that the Ontario (or elsewhere) based lawyer will only handle that part of the matter that is the practice of Canadian law, and that the client may need to retain other counsel for work involving the law of non-Canadian jurisdictions.

If one of your lawyers is properly admitted in a foreign jurisdiction and doing work involving the laws of that jurisdiction, arrange your own coverage for that work, as it will not be covered under the LAWPRO policy.

This article originally appeared in LAWPRO Magazine “File Retention,” December 2010 (Vol. 98 no. 4). It is available at www.lawpro.ca/magazinearchives

One of the saddest chapters of Bill Kaplan's excellent biography Canadian Maverick – the Life and Times of Ivan C. Rand, is his account of Justice Rand's post SCC appointment as the founding Dean of the University of Western Ontario's Law School. Rand didn't fit, was remote from students, and was ill at ease and isolated. {For further references see Omar's post and Jamie Cameron's review.]

A different challenge awaits the former chairman and chief executive officer of McCarthy Tétrault LLP., Iain Scott who will be moving to take over the deanship of Western in September. This is a time of transition for Canadian legal education in which many of the founding myths of the profession are up for re-examination by a generation for whom Caesar Wright is scarcely a footnote. The balance between academic and professional emphasis in legal education is ripe for re-examination thirty years after Harry Arthur's seminal Law and Learning Report. The future of legal services in a very changing marketplace. Shifts in models of lawyering. The unmet legal needs of millions. The linkages between business schools and law schools. The challenges and opportunities offered by new technologies.

I worked together with Iain on the CBA Conflicts Task Force and he's an impressive, intelligent, shrewd and tough lawyer, who has a splendid grasp of the bigger picture.

Western is fortunate to have him. It'll be interesting to see what happens at UWO over the next few years.

practicePRO has worked hard over the years to make lawyers aware of the wealth of practice management and claims prevention information available on the practicePRO site. Those efforts have resulted in practicepro.ca becoming a regular destination for many lawyers, particularly solo and small firm lawyers who may not have access to all the resources of a larger firm.

Lately there is one segment of lawyers that LAWPRO and practicePRO have made an extra effort to reach out to: new lawyers and those about to be called to the bar. Its been our experience that when lawyers were students, they really didn't have the time or inclination to give much thought to the 'real world' aspects of practicing law such as operating a firm, client service and malpractice claims; just dealing with the workload of law school was enough!

At the same time, lawyers venturing out into practice for the first time are most in need of practical help: creating a business plan, budgeting, retainers and other documents, client relations advice, marketing help and fraud prevention, etc. So LAWPRO has just launched The New Lawyer Resources page (www.practicepro.ca/newlawyers) . Its goal is introducing newly minted lawyers to the practicePRO resources available to them.

This page links to existing practicePRO material that we think will be of interest to new and younger lawyers. We are working on additional resources that are targeted specifically at new lawyers. So if you know of any students or freshly minted lawyers, be sure to send them the link practicepro.ca/newlawyers.

This article by Carole Cochrane originally appeared in the Winter 2006 issue of LAWPRO Magazine. The advice given is just as relevant today.

Why do we all shudder on learning that our client’s adversary is self-represented on a litigation file? So often we fail to appreciate opposing counsel – until we hear those dreaded words from our client: “You know, the other side won’t be getting a lawyer.” It is only then that we realize and appreciate the benefit of there being opposing counsel on a file.

On a litigation file, opposing counsel can serve a number of important functions that can make our own role so much easier. Without opposing counsel there is no one on the other side to:

• give good, solid advice as to what the law is and how it is or can be applied;
• recognize the critical importance of full, complete and timely disclosure;
• encourage a negotiated resolution;
• draft concise and legible pleadings, briefs and affidavits;
• screen, or serve as gatekeeper, to the irrelevancies and non-legal issues;
• facilitate compliance with Rule-directed or court-ordered obligations, such as the timely completion of an accurate affidavit of documents, the fulfillment of the requirements for mandatory mediation under Rule 24.1 of the Rules of Civil Procedure, the delivery of an updated financial statement or the prompt consideration of a draft order provided for approval;
• conduct a trial, properly focused on the issues at hand; and
• discourage protracted proceedings, mindful of the everincreasing costs of contested litigation.

In earlier literature on this topic, a distinction has been drawn between self-represented litigants and unrepresented litigants. The latter would like to be represented by counsel but are unable to qualify for representation under the Ontario Legal Aid Plan, and do not have the financial resources to retain counsel for what may prove to be a protracted proceeding.

Conversely, self-represented litigants feel that they are capable of representing themselves, and do not feel the need to pay someone else to do what they believe they can do themselves. (After all, if you’ve watched enough reruns of “L.A. Law” or “Street Legal,” have high-speed internet and a library card, that is enough, isn’t it?)

Whatever the reason or cause may be for the self-representation, it becomes your reality to address. Below you will find some general pointers as to how to best deal with the situation of an unrepresented or self-represented litigant (referred to collectivelyas “SRL”) on the other side of your file.

CLEARLY SPELL OUT AT THE OUTSET OF YOUR DEALINGS THAT YOU WILL NOT GIVE ADVICE TO THE SRL.Your first letter to the SRL must clearly indicate that you represent the adverse party and that you cannot, and will not, provide any advice to the SRL.

There is a very fine line between offering information and giving advice. Although it may be tempting to explain to a SRL what a document means or why something should be done a certain way, don’t go there! Encourage the SRL to obtain independent legal advice. Offer the SRL the telephone number for the Lawyer Referral Service, or if the matter is a family law proceeding, suggest the SRL attend at the Family Law Information Centre. When you’re asked questions, refer back to that initial letter of introduction and remind the SRL that he/she will have to obtain advice from someone other than you.

ONLY ALLOW COMMUNICATIONS BETWEEN YOURSELF AND THE SRL TO BE IN WRITING.

Write to the SRL as soon as you are retained to indicate that you will be limiting your communications with him/her to writing. There will be no meetings; there will be no verbal negotiations; there will be no telephone calls. Although this may sound overly restrictive, it is the only way to avoid misunderstandings. All of your dealings with the SRL should be recorded in writing, either through your written communications or by your discussions being on record in the courtroom.

When you are writing to the SRL, use plain, simple language. This does not mean to insult the SRL’s intelligence or to be condescending; simply avoid the “notwithstanding”’ or “govern yourself accordingly” ’ terminology that come too easily to us as lawyers.

If written communication is electronic, ensure that copies are printed and maintained on your file.

Always make sure that you respond promptly to communication you receive; if you cannot respond within a reasonable period of time, send a short note off to the SRL to acknowledge receipt of his/her correspondence and to advise that a considered response will follow shortly.

If communication cannot be in writing, limit your non-recorded dealings with the SRL, and if possible, have another person join you as witness, such as a junior or articling student. Follow up any oral communications with a letter of confirmation.

NEVER TREAT THE SRL WITH ANYTHING LESS THAN THE UTMOST OF RESPECT.

Ensure that your tone is consistently professional and respectful. Our Rules of Professional Conduct direct us to treat unrepresented litigants with respect, in the same way you would treat another lawyer. I suggest that you take that even one step further, as you can rest assured that one or more of your letters will find their way to a judge as an exhibit to an affidavit, in a settlement conference brief, in a document brief at trial, or better yet, as the attachment to a complaint directed to the Law Society! With that foresight, be sure your written communications are written and edited in such a way that they cannot be interpreted as overreaching,
misleading, disrespectful, unreasonable or coercive.

Although you may be empathetic to the SRL’s plight, (particularly those who are “unrepresented” versus those who are self-represented by choice), remain professional and respectful at all times. One thing I have tried to do to maintain that professional distance is to not address the SRL on a first name basis, but rather to refer to him/her at all times as Ms. X or Mr. Y.

TAKE CHARGE OF THE FACT FINDING AND DOCUMENTARY DISCLOSURE THAT IS REQUIRED ON THE FILE.
The SRL may not know what information is required to allow the equalization issue to be resolved for instance, or may not be aware of what should be included in an affidavit of documents. Compile and organize early on all of the necessary corroborating documents that are required to allow you to outline in writing to the SRL what he or she must produce.

REMIND YOUR CLIENT THAT HAVING A SRL ON THE OTHER SIDE OFTEN DRIVES UP THE COSTS.

Negotiations with a SRL may not be helpful or results-oriented. Disclosure from a SRL may not be forthcoming. Your time may have to be spent reading numerous e-mails or letters, or you may be facing more case conferences or motions than if counsel were involved. You may have to recommend that court proceedings be initiated sooner than would otherwise have been the case in order to obtain some Rule-directed time lines, some judicial directives and/or genuine case management.

OPEN YOUR EYES TO THE WARNING SIGNS THAT YOUR OWN OR YOUR CLIENT’S SECURITY MAY BE AT RISK.
Is the SRL’s attitude towards you shifting (becoming suddenly charming or hostile)? Are the SRL’s letters to you or to your client becoming blatantly or subtly threatening? Arrange for Court security to be available at any time you will be required to be with the SRL in that setting, and arrange to stay at the court house until the SRL is well on his/her way after the proceedings have concluded.

LIMIT THE SRL’S PERCEIVED POWER OVER THE PROCESS.

Insist that the rules be followed – the Rules of Civil Procedure or the Family Law Rules with respect to pleadings, disclosure and time lines, for instance, as well as the rules of evidence.

Let the SRL know of your intention to seek an order of costs at each stage of the proceeding; if you successfully obtain such an order, pursue its enforcement. Limit the SRL from taking any fresh steps until such interim determinations are honoured [Rule 60.12 of the Rules of Civil Procedure; Rule 14(23) of the Family Law Rules].

Do not hesitate to rely on the provisions in the Rules that prevent a SRL from engaging in abusive or vexatious proceedings. Rule 37.16 of the Rules of Civil Procedure and Rule 14(21) of the Family Law Rules give the court the authority to limit a litigant’s ability to bring further motions without leave being obtained in advance.

It is one thing for a presiding justice to de-mystify the court process to a SRL; it is not appropriate for the judge to overaccommodate to the prejudice of your client. In the courtroom, object where necessary if that line is crossed, and stress as strongly and respectfully as possible that the SRL is required to follow the rules, just like anyone else appearing in that courtroom.

C – O – N – T – R – O – L

If you combine the first letter of each of the “tips” outlined above, you’ll see that what they spell: CONTROL. And it is just that, control, that you want to maintain when you deal with a self-represented litigant. Only through demonstrating the necessary degree of control will you keep your frustrations at a manageable level, minimize the risks to your client (in both time and costs) and reduce your own exposure to liability.

At yesterday's inaugeral Law Tech Camp in Toronto, Prof. Daniel Katz of Michigan State University College of Law spoke on "Computing and the Law." The topic was covered in The Globe earlier this week,

The crucial question for anyone heading into a court battle – whether a mighty corporation or a mere slip-and-fall victim – is the same, every time: “What are my chances?”

Depending on the answer, a client will decide to settle, or to stand and fight. The answer generally comes from across the oak-panelled desk of a lawyer, who draws on wisdom gained from years of practise, experience with similar cases and knowledge of the law to make a judgment call.

But as Deep Blue showed on the chess board and Watson recently demonstrated on the TV quiz show Jeopardy, it turns out robots might also be better at calculating those odds than humans. Computers, using complex algorithms to analyze tens of thousands of similar cases and decisions, can now be used to predict the outcome of court fights, according to Daniel Katz, an assistant law professor at Michigan State University.

Katz's slides are available here. My notes from Katz's talk, and some commentary stemming from additional reading and further conversations are below. (My slides from my Law Tech Camp presentation are here).

Background

Katz commenced by saying there is nothing exceptional about law. All of the excuses that lawyers currently make against automation and the development of predictive systems were made previously by the financial sector, which didn't prevent these technologies from being utilized there.

The reason why things are starting to change now in law is due to general counsel, who are sick of paying different fees for different clients. General counsel are going to lead law's innovation. And quantitative legal prediction is the ultimate disruptive technology.

Big Data and Moore's Law

This is the era of big data, and what is true for science is true in industry. We are probably the last ones to do this. The question then is, "how do you ride the wave?"

We carry data in our brain to make these estimates, but we can't scale the way computers do. Data is only half of it. Algorithms can compute on a scale that is impossible for humans to do.

Moore's Law describes an exponential growth in computing technology, and these changes will only accelerate further.

The Soft AI Revolution

Programs like Watson are soft artificial intelligence (AI). They don't have empathy or feel anything, but can win at Jeopardy. The game is now on for lawyers.

Historically data review was an area that employed a lot of lawyers. But not any more.

We are now creating a virtual supply chain in the legal profession. When we have an e-discovery problem, we are more likely to find an expert on it and outsource the problem, rather than trying to figure it out internally. The law firm is now just the maestro, telling the violins of various virtual legal services when to play. At the ABA Tech Show there are countless vendors who are all just selling one small slice, pushing innovation in their own respective sphere.

Eventually these changes will have to come about through law schools as well. The traditional top-level law schools won't take on the risks, so don't expect the innovation to come from them. Instead, you can expect an upset school to lead this new revolution.

Prediction

Katz used the example of weather systems to help demonstrate the predictive limitations with complex systems. Weather systems can only be accurately predicted for about 10-15 days in advance. If you want predictions beyond that you need an almanac, which is not a high grade class of prediction, but still does provide some useful information. For example, if we are looking at June 18, 2012 in Toronto, we can probably fairly assume there will not be 16 inches of snow. In other words, if you have an almanac and someone else does not, it can be a big deal.

Lawyers are in the weather business, and not the tide business. Tides follow a much more predictable patter of cycles. The inherent system variability in weather is important. We can predict certain things at certain times of the year. But there are some times of the year where we will just predict a level a chaos. Any properly constructed algorithm accounts for all of these problems that we find in other areas. Insurance companies already have great databases for example on slip-and-falls to help determine the price of premiums.

The quality of the inputs will always affect the quality of the predictions. The market does not always price things properly, which is why there are arbitrage opportunities for astute investors. Improving the quality of the inputs will improve the predictive quality of any algorithm.

Mental Models vs. Aggregation

Human beings are actually horrible at aggregating data with our brains. It's far too consuming for us, and we don't do it effectively or accurately.

We cannot effectively read thousands of cases efficiently. Computerized systems will invariably demonstrate superior research and analysis.

Quantitative Legal Prediction

Quantitative legal predictions already exists. Over 10 years ago studies examined the voting trends of the courts, comparing groups of law professors against an algorithm.

No surprise, the algorithm performed better than the accumulated expertise of the academics.

Disputes vs. Decisions

The potential of predictive technology is that it will compel more parties to settle. We will need to figure out bargaining in the shadow of the law by considering the strength of a case.

We already have this process in place, but how much is subject to aggregation? Machines are dumb, but they can scale far better than we can. There are lots of factors that matter, including time scales and complexity.

But we also have to be aware of other metadata that we may not have information on. We can't make a model for something if we don't know that the model is.

A standard client memo in the future may include a statistical portrait of 10,000 similar cases and their outcomes. Could it potentially become an issue of malpractice to not provide this information to a client to help them decide about their case? Could law societies ask lawyers why they didn't pull a statistical report?

Assessing Similarity

Assessing similarity between cases is often the hardest part of predictive algorithms. There is a science to similarity, one which has been used repeatedly in the online context; Amazon's collaborative prediction, Google's spell check, the music genome project and Pandora. They have a vector of attributes and millions of clicks. There is absolutely no theory of similarities, the key is in the clicks. Essentially what these companies have done is outsource the similarity specialty to the crowd.

We have citation systems that are essentially a recommender system. People who cite one source will also cite something else. The way we develop these distance or similarity functions are not unlike a Facebook friend wheel.

Discussion

The question I had for Prof. Katz related to the quality of inputs as I understood litigation in Ontario. The vast majority of personal injury and civil cases are issued with a jury notice, and consequently rarely have a reported decision with a trial amount unless it is appealed on quantum, costs, or an unrelated point of law. Furthermore, the vast majority of civil cases already settle, for amounts that are rarely disclosed to the public or third-parties. Gathering a large enough body of information to create a robust database capable of accurate predictive analysis would appear challenging in our jurisdiction, where we have a much smaller volume of cases that most American jurisdictions.

Katz responded by stating there are already a number of assumptions that litigators rely upon that could be tested through statistical analysis. Jury awards could be compared with non-jury awards, settlement figures compared to trial figures, and other variables involve in litigation could also be tested.

Garry Wise graced us with his presence, well after the event had concluded, and had a number of interesting observations. The Ontario Court of Appeal has nearly codified the Spousal Support Advisory Guidelines (SSAG), which were originally designed as advisory (hence the name) to help judges make decisions. A similar trend may occur with the statistical determination of quantum of damages, thereby removing the need for litigants to go to court in the first place.

If this was to occur these changes would not result in The End of Lawyers, but rather "The End of Judges" as we know it today, according to Wise. Quantitative legal prediction could help alleviate the pressure on the courts and transform legal practice completely. It certainly will not spell the end of lawyers, but it may signal the end of legal practice as we currently understand it.

Significant numbers of law firm partners are nearing retirement age. Many firms are facing the daunting question of how to smoothly transition their clients and practices to the next generation – and most firms have taken few if any steps to tackle the thorny issues this transition can raise.

Look to the May/June 2011 issue of Law Practice Magazine if you need help with building a succession plan for your firm. It has several articles that will help you with transitioning clients, practices and leadership.

Marcia Pennington Shannon’s A Short Course in Succession Planning article gives you a snapshot of fundamental steps and issues to consider in charting out a practice's transition process.

Steven T. Taylor wrote profiles of three firms that tackled various succession planning issues:

• Moving Young Lawyers into the Leadership Pipeline
• Dealing with "What-If" Scenarios and an overhaul of the firm's associate-heavy structure.
• Implementing the Management Succession Plan step-by-step over several years.

If you are a firm leader the Five Questions to Ask About Your Firm Succession Readiness article by Tom Grella will give you a roadmap to lead your firm through the execution of a succession plan.

There is a great article on the Financial Aspects of Succession Planning by Stephen Mabey and Karen MacKay.

Lastly for anyone considering closing a solo practice, there is the Solo Lawyers Exit To-Do List article by Sheila Blackford and Peter Roberts, along with an actual checklist you can adapt and use.

Don’t underestimate the time and effort that it will take to properly plan and execute a succession plan at your firm. It is never to early to start. It can take 3-5 years or more. The articles in this issue of Law Practice will start you on this process.

Earlier this week, Gartner offered up a press release that identified 5 myths of collaboration. If you have an interest in collaboration, it's worth reading; but to summarize, those myths are:

1. The right tools will make us collaborative
2. Collaboration is inherently a good thing
3. Collaborating takes extra time
4. People naturally will/will not collaborate
5. People instinctively know how to collaborate

The explanation given for #4 was something that particularly caught my interest:

Depending on their level of cynicism, people believe that humans naturally collaborate, or naturally don't. While there are individuals at each end of the spectrum, most are somewhere in the middle and can be encouraged to collaborate under the right conditions. IT leaders should ignore the reluctant minority and work on motivating the majority of workers who can be persuaded to collaborate…

I think any of us who've observed 'personality test' scores for the legal industry know where lawyers sit on the continuum of cynicism (not that intuition and observation weren't also worthy paths to the same conclusion). But cynicism aside, this tactical recommendation — bypassing the "roadblock" personality in order to effect some kind of change — has merit. It's dependent, of course, that your firm's leadership actually desires and supports the intended change; but whether we're talking collaboration, deciding to add a new technology, or altering a work process — it's not uncommon to find a reluctant person or group standing in the way.

Admittedly, some larger changes require firm-wide compliance, and are often accompanied by a directive from the firm's leadership. But there are also the many smaller changes that happen in firms that don't necessarily need to be globally accepted. Indeed, if it's this type of change we're talking about, how much time should we spend on the "reluctant minority"?

During my years in-house, I learned to appreciate the value of utilizing a 'test group' or 'champion' to drive innovation. It often only takes a single success story to spearhead further adoption within a firm. Get two or three groups to jump on board, and that change will often take a life of its own. My point being? There's a time to invest in the 'early adopters', and a time to invest in the critical mass. Both these groups have proven value.

But the roadblock personalities? Unless politics prevail, why invest your time? I've logged a lot of hours trying to convince lawyers on the merits of trying something new. The split has become almost routine: some will poke endless holes in the new idea; while others are game to try. I always leave a healthy amount of grey area for the needs to be convinced personality; but individuals that can't get beyond "finding reasons to say no", don't deserve the same treatment.

Besides, if you effect change all around your minority … a few of them might just buckle anyway.

I had the pleasure last week of presenting at the annual meeting of the Canadian Association of Law Libraries / /L'Association canadienne des bibliothèques de droit on the topic "Legal Project Management: Is There a Role for Law Librarians?"

My co-speaker was Andrew Terrett, the National Director of Knowledge Management at BLG who provided a great, pragmatic overview of project management in law firms.

Although in my paper I also provided a brief overview of legal project management and what various law firms were doing about it, the focus of my talk was instead on the third part of my paper on whether there was a role for law librarians in project management (this being a conference whose attendees were largely law librarians).

A copy of my paper, entitled "Project Management in Law Firms: A New Role for Librarians?" is available here, and includes a bibliography on legal project management resources (20 pages, PDF).

The first theme of my talk was that legal project management is definitely here to stay so we should all be embracing it as a new way of practicing law.

The second theme was that legal project management presents great opportunities to law librarians to leverage their expertise and expand their services.

Those people who know me well will know that I strongly believe in the connection between law librarianship and legal knowledge management (and I in fact don't distinguish between the two activities since I think they are so closely entwined). Therefore, to the extent that there are overlaps between legal knowledge management and legal project management, there are, I think, a number of roles for law librarians to play.

I identified 8 roles for law librarians:

#1: Education and current awareness: To the extent that legal project management may still be quite new to some firms, there is an opportunity for law librarians to acquire materials on the topic and educate those within the firm through current awareness and monitoring what others in the industry are doing.

#2: RFPs / bidding process: An important element in legal project management for law firms is bidding on work through the RFP process. In many firms, there are opportunities for the RFP process to be improved and there are opportunities here for law librarians to work with their Marketing Department counterparts and firm management on organizing and standardizing their RFP documentation.

#3: Checklists: Law librarians are natural keepers and organizers of checklists, an important tool in large deals or lawsuits to tracking the steps that need to be taken (when discussing checklists, I like to mention the great work done by the Law Society of British Columbia in making a number of practice checklists available online). When combined with Role # 4 below, librarians can augment checklists by providing easy access to documents required at each step of the matter.

#4: Research / Precedents: To be more efficient and effective on large deals or lawsuits, law librarians are well poised to "imbed" research and precedents within the various resources needed on a particular deal or lawsuit. Of the 8 roles identified, this is perhaps the most obvious role (or at least the one most closely associated with what law librarians do).

#5: Evaluating and using Project Management Software: Many law librarians are likely the most experienced "searchers" within their firms and often have good expertise in evaluating software, including project management software. And although project management isn't only about technology, software tools can play an important role (if you have not yet had your daily dose of being overwhelmed with too much information, check out the over 120 titles listed in the Wikipedia entry for project management software titles).

#6: e-Discovery Support: Canadian law firms are starting to get more experience with e-discovery with the increased adoption of new rules of civil procedure on handling large volumes of electronic discovery. Due to the large volume of materials, e-discovery is ripe to being project-managed. While in many situations it may be litigation law clerks or paralegals who will involved in the day-to-day "hands on" of e-discovery under the supervision of the resonsible litigation lawyer, many Knowledge Management departments in law firms help support e-discovery, whether it be evaluating e-discovery software, developing and organizing e-discovery precedents or simply monitoring e-discovery developments and best practices.

#7: Post-deal Reviews: An important element of project management is following up after the project is completed to see how the team did and how things can be improved next time. In many situations, both the lawyers and the client are too busy to deal with this or are otherwise already moving on to the next project. Depending on how your firm is structured, I think there is a role here for the Knowledge Management department to help with the post-deal review process.

#8: Internal Administrative Projects: Although much of legal project management correctly focuses on meeting client needs, realize that firms will also benefit from applying project management to their own internal projects and processes. In many situations, law librarians are well-suited to be involved on these internal projects, which could include such things as evaluating and implementing a new document management system or integrating library catalogues in a merged firm.
______________

I welcome comments.

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Note 1: When I prepared my paper (available at the link above), the following book published by the Ark Group had not yet been announced. I told attendees I would provide a link to that paper in this post, so here is the link:

– Barbara J Boake and Rick A Kathuria, Project Management for Lawyers (London: Ark Group, 2011)

Note 2: I also saw this morning that Jim Hassett has announced the launch of his new Legal Project Management Quick Reference Guide.

In an April 18, 2011 post on the Minnesota State Bar Association’s Practice Blawg, it was announced that the MSBA trust accounting guides are now available to non-MSBA members. In the past these guides were behind a members-only wall.

These guides help lawyers work with trust accounts in the several commercially available mainstream accounting programs. There are 5 guides including:

• Keeping Client Trust Accounts with GnuCash 2.2.4
• Keeping Records for Client Trust Accounts Using Microsoft Office Accounting 2006 or 2007
• Using QuickBooks 6.0 for Lawyers’ Trust Accounting
• Trust Accounting with QuickBooks 2005 Professional
• Keeping Clients’ Trust Accounts with QuickBooks 2010 Professional

If you want one of these guides follow this link and complete a form, which requires an email and your name. The guide you request will be emailed to you.

I note that I make this post with some hesitations. I always strongly recommend lawyers use accounting software that is specifically designed for law firms for the simple reason that these products have build-in functionality for dealing with trust accounts. There are some great mainstream accounting software products, but you have to do some workarounds to deal with trust accounts. You can avoid this extra work – and the mistakes that are more likely to happen – by working with software that is specifically designed for a law office setting.

That being said, I know some lawyers end up using mainstream accounting products, (often to save money or to use the products that the firm accountant has requested – nice to help them out but not if it causes you to not meet your record keeping obligations with respect to trust accounts). If you are using one of the above mainstream products, these guides are a great resource to help you properly deal with trust accounts.

There have been two important and encouraging developments on the ethics of cloud computing over the last month.

First, the ABA Commission on Ethics 20/20 has issued an initial set of draft proposals addressing lawyers' confidentiality-related obligations when using technology. The Commission's draft report proposes:

• The development of a centralized, user-friendly website that contains continuously updated and detailed information about confidentiality-related ethics issues arising from lawyer’s use of technology, including the latest data security standards.
• Amendments to several Model Rules of Professional Conduct and their Comments to offer specific guidance and expectations relating to technology.

The amendments to the Model Rules of Professional Conduct do not relate to a specific technology (e.g. cloud computing), as the Commission recognizes that "unlike the proposed website, which can be regularly updated in light of new technology and changing security concerns, the rule and comment-based proposals necessarily offer more general guidance that are not tied to the use of any particular form of technology."

The Commission also notes that technology has become an integral part of virtually every law practice, and as such a basic working knowledge of technology's benefits and risks should be regarded as a baseline requirement to practice law competently:

The Commission concluded that competent lawyers must have some awareness of basic features of technology. To make this point, the Commission is recommending an amendment to Comment [6] of Model Rule 1.1 (Competence) that would emphasize that, in order to stay abreast of changes in the law and its practice, lawyers need to have a basic understanding of technology’s benefits and risks.

The Commission also proposes amendments to make the ethical obligation to safeguard client data more explicit:

Proposed new Model Rule 1.6(c) would make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent disclosure and unauthorized access. This duty is already implicit in Model Rule 1.6 and is described in several existing comments, but the Commission concluded that, in light of the pervasive use of technology to store and transmit confidential client information, this obligation should be stated explicitly in the black letter of Model Rule 1.6.

The Commission has made a set of well-reasoned recommendations that would see a set of technology-related but implementation-neutral amendments to the Model Rules of Professional Conduct. The proposed changes are good news for cloud computing vendors and users alike, as the Commission has recognized that the Rules of Professional Conduct should not be bound to a specific type of technology, whether it's on-premise computing, cloud computing, or mobile computing, but should rather detail the expectation for a lawyer to both understand and minimize the risks relating to his or her use of technology. The educational website the Commission recommends developing would be a valuable resource to help lawyers meet this obligation.

The second major cloud computing ethics development comes from North Carolina, where the NC State Bar has updated its Proposed Formal Ethics Opinion on the use of Software-as-a-Service in a law firm. The NC State Bar opinion is one of the first ethics opinions in North America to explicitly deal with the ethical issues relating to cloud computing. The following is the question posed of the ethics committee in Proposed 2011 Formal Ethics Opinion 6 – Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property:

SaaS for law firms may involve the storage of a law firm’s data, including client files, billing information, and work product on remote servers rather than on the law firm’s own computer and, therefore, outside the direct control of the firm’s lawyers. Lawyers have duties to safeguard confidential client information, including protecting that information from unauthorized disclosure, and to protect client property from destruction, degradation, or loss (whether from system failure, natural disaster, or dissolution of a vendor's business). They also have a continuing need to retrieve client data in a form that is usable outside of a vendor's product. Given these duties and needs, may a law firm use SaaS?

The proposed ethics opinion answers:

Yes, provided steps are taken effectively to minimize the risk of inadvertent or unauthorized disclosure of confidential client information and to protect client property, including the information in a client’s file, from risk of loss.

The opinion goes on outline minimum security measures to be employed by a SaaS-using law firm and references other best security practices, such as the newly-formed ILTSO standards.

The ABA Commission on Ethics 20/20 proposal and the NC State Bar proposed ethics opinion both represent important steps forward in clarifying the ethics of cloud computing, and it's encouraging to see both organizations take forward-looking positions on the use of technology in law firms.

A message on the American Law Libraries – Private Law Libraries SIS Listserv has alerted me to: (i) A new blog by Law Librarian Jean O'Grady called Dewey B Strategic which has the subtitle of "Risk, value, strategy, libraries, knowledge and the legal profession," and (ii) a recent intriguing post on this new blog called The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training that raises the challenge (if not impossibility) of trying to teach "cost-effective searching" on Westlaw or Lexis to students or associates given the complexity of how these products are priced. Some examples of the points being made from the post:

Handing an associate a Lexis or Westlaw password and asking them to be “cost effective,” is like handing someone a credit card and sending them into a store in which none of the merchandise is priced and then berating them when the bill comes in exceeding your budget. No consumer affairs department would allow a retailer to perpetrate this kind of thing on the public. How is it that almost every law firm in the US has put up with this for the past 3 decades?

_________________

The obsession with being “cost effective” distracts the associate from focusing on the real goal — finding the right answer. Here comes the brain theory. Effective legal research requires deep focus and concentration yet… “the myth of cost effective research” requires an associate to engage half of their attention on a collateral and competing analysis of factors which have nothing to do with the substance of the law. (Am I in hourly or transactional mode? Is this content included or excluded? Should I print or read online? Should I execute a new search or will that cost too much? Have I selected the cheapest file? Is it cheaper to print by the line or print a page or print a document or should I email the results to myself?)

♫ They pick me up when I'm feeling blue
Now how about you?

Sweet home Alabama
Where the skies are so blue
Sweet Home Alabama
Lord, I'm coming home to you
…
Yea, yea Montgomery's got the answer…♫

Lyrics and Music by Ed King, Gary Rossington,Ronnie Van Zant, recorded by Lynyrd Skynyrd.

Alabama Tornado Damage

My colleague and fellow Practice Management Advisor Laura Calloway (and fellow author/editor of SlawTips), of the Alabama State Bar and the rest of the ASB have a tornado of a problem on their hands. They are trying – desperately - to help out the public and the lawyers of Alabama that have been wiped out by the tornados in their state. They have set up free public legal clinics to try to help those who have been hit so hard by the tornados and have need for further lawyers to volunteer (they have a huge backlog of cases helping those who have lost so much). At this time only Alabama lawyers can help out here.

The Alabama State Bar Association started a toll-free legal helpline: 800-354-6154. Also dispensing free advice is Legal Services: 866-456-4995.

"For everyone affected by the tornado disaster, we are offering free legal assistance statewide to those who can't otherwise afford it," said Alabama Bar Association Presi dent Alyce Spruell. The state bar's Volunteer Lawyers Program, the University of Alabama School of Law and the Tuscaloosa Bar Association conducted walk-in clinics in Tuscaloosa on Thursday for tornado vic­tims.

But they are also trying to help the lawyers in Alabama that have had their offices wiped off the map by the storms. Now many of these lawyers were solos and in small firms in smaller towns. One doesn't practice in small town Alabama for the money – these are lawyers who worked helping out their communities and the public. In many cases, they didn't carry insurance for the loss of their offices.

The Alabama State Bar in Montgomery Alabama is looking at setting up a fund to help out these lawyers get their offices back in operation. They have received pledges from RocketMatter and Legal Workspace but of course, the need is great and they can also use much more.

So this is an appeal to the lawyers and legal community across North America to help out our brethren and see if we can make Alabama a sweet home once again. I think Montgomery has the answer…

First of all, I’d like to thank Simon Fodden for inviting me to contribute to the site. It really is an honour to be able to contribute to such a well-rounded and popular blog.

Like my colleague Genevieve Lay (who also blogs on the site), I am a labour and employment lawyer at Ogilvy Renault LLP in Montreal. As a firm, we generally only represent employers. In thinking about how to introduce myself to the Slaw.ca community with my first post, I thought it best to talk about what I do and why I do it. Part of that is explaining the role of a management-side labour and employment lawyer.

When I was at law school, many students were polarized when it came to employment choices. Some either wanted to work at “biglaw” firms or argued that going to work for them was akin to “selling out” and working for the “man” (to use an expression my parents are fond of). When I introduce myself to people and explain what I do, they often believe that our job is to fire people and make sure they get as little money as possible. To some people, we are seen just as George Clooney was portrayed in Up in the Air – heartless “downsizers” and legal assassins.

I don’t see my job in that way at all. In fact, I love what I do and see a lot of humanity in the work. First of all, hiring and firing are part of life. Many people identify on a very personal level with their work and losing their jobs can be intensely difficult and emotional. However, whether due to corporate downsizing or performance issues, some employees simply can’t be retained. Employers need advice from specialized lawyers on how to handle this kind of issue. This is where we help. Of course, we also do a number of other things, including developing HR policies, negotiating with unions and advocating for our clients before various labour relations boards.

However, a fair portion of my time is spent advising clients on how to best handle difficult situations before they turn into serious (and expensive) problems. Employees who are treated with respect and are compensated fairly don’t sue. Firing people without cause and without notice will generally lead to a lawsuit of some kind. Given the costs and time involved, nobody wants to litigate a termination. For most people, litigation is and should be the last resort. Accordingly, I always advise clients to err on the side of being generous when terminating employees and negotiating severance. A few extra weeks of pay pales in comparison to the cost of going to trial or arbitration.

Simply put, in my relatively short time as a lawyer, I’ve learned that the “right” thing to do is also most often the “legal” thing to do and the best strategy.

At the end of the day, people are going to be hired and fired regardless of what kind of law I practice. By doing what I do in the way that I do it, I feel I can help bring some humanity and fairness to the process, all the while serving the best interests of our clients. Suffice it to say, I am an eternal idealist and optimist… even though I work for the man.

I look forward to continuing to blog here and thank you for reading. If you're interested in more Québec-specific labour and employment law content, please visit my blog.

Standards for on-premise, cloud and mobile technologies used by lawyers have, to-date, been lacking. While an abundance of recommendations, best practices and other guidelines have been issues by Bar Associations and other organizations, there has not been a single, comprehensive document lawyers could look to for clear guidance on what minimal standards should be adhered for on-premise, cloud and mobile technologies.

The International Legal Technology Standards Organization (ILTSO) aims to change that. ILTSO is a non-profit organization consisting of attorneys, bar association representatives, IT professionals, and business leaders with a stated mission of "helping attorneys and clients better understand the practical and ethical implications of technology for the practice of law".

Today at the ABA TECHSHOW in Chicago, ILTSO released a draft set of standards encompassing on-premise, cloud and mobile technologies. With the initial draft 2011 standards published, ILTSO will now begin accepting feedback from vendors, practicing attorneys, state bars and other stakeholders in legal technology standards.

The proposed standards fills tremendous void in the legal technology space. To date, lawyers have not had a single standard set to look to that address the spectrum of security- and privacy- related concerns that need to be addressed for their on-premise computers, mobile devices, and cloud services. Law Societies and Bar Associations have also been in need of such a document. Draft ethics opinions on cloud computing and other technologies, such as the North Carolina Bar Association's Proposed Formal Ethics Opinion on cloud computing, reference the need for a broadly recognized set of best practices relating to technology; prior to ILTSO, no such document existed.

I'm proud to be part of the team that has produced the first set of ILTSO standards – give the draft a read, and let us know what you think. An essential component of the ILTSO standard is that it will be continually evolving, updated with the latest best practices and recommendations on a yearly basis; it is a living document, and will be iterated and improved upon based upon feedback from people like you.

As promised, more from the ABA Techshow, and more from Steve Matthews, who presented on website basics for lawyers.

Getting noticed and ranked high by search engines is very important for firms, because most of the traffic to your site will come from searches on Google and the other search engines. So how do you engage in "search engine optimization," or SEO as it's called?

Page SEO factors

1. Use page titles and make them unique and descriptive; it helps search engines understand what you're about. When you're browsing, look up at the top of your browser: you'll see the title of the page. You'll be surprised at how many websites ignore this really important labelling.
2. Should you use meta descriptions, those hidden labels that speak only to bots? Yes, but perhaps don't bother with meta keywords: we've known for some time now that Google ignores these.
3. Be sure to use keywords in your URL structures. By all means avoid those long, incomprehensible page addresses that some systems spit out automatically.

Content writing goals

1. When writing content for your site, it helps SEO if you break out unique topics and place them on their own web pages.
2. Remember: viewers scan a page before they commit to reading it, so you must catch their attention. It helps to use short paragraphs, section headers, or bullet lists.
3. Use descriptive titles for your web pages.
4. Stick to natural language: don't write for search engines but for your readers; go back and consider SEO after drafting.

Link building

Incoming links from respected sources are most important for ranking on Google and other search engines. So link popularity drives the search results. Work with others to
get a good mix of links, some to the home page, and some to pages within the site. Be sure to get links from quality sources. Cross links with similar subjects work best. And aim to get a mix of new links and old links: Google has two bots, one for each type.

Calls to action

Remember that you want viewers to act on what you've presented. So be sure to have contact points highlighted on the site: phone numbers, email, contact forms. And couple these with an invitation—people like the permission to get in touch.

Location, location

Google has recently combined its regular search results with its more specialized "local search" results. So be sure to take steps to get a Google Places page. And be sure to fill out Google's form completely, add a logo, photos, etc.

And list yourself with Bing and Yahoo maps and other location directories. Google likes corroboration from such sites. Be consistent, make your listings exactly the same on each listing.

Write, write, write

Most important of all, write for places in addition to your firm site. Get your material out there on as many online sites as possible. This will increase your profile and drive people to your site—and to your firm.

Here on Slaw we pretty much take for granted some of the basics of IT, prime among which might be the value of a website to practicing lawyers. But, of course, it's just not the case that all lawyers have—and make good use of—websites. So for those of you who fall into that category (or who have a friend who does) here's a little something.

As it happens, I'm at the ABA Techschow in Chicago listening to Slaw's Steve Matthews explain the basics with respect to the necessary infrastructure, Website 101: Build and Rebuild.

Domain names
Use short, memorable names, because you want clients to be able to make easy, return visits. It can get tricky when a number of partners' names are used to identify the firm. And using partner names can also be tricky because partners leave and you'll have to change the domain name.

If at all possible, choose a dot com domain. And then "lock down" the dot net and dot org domains of the same name so that no one else can use them.

If you must change your domain names, there are tools you can use to redirect people (and search engines!) who still use your old address—Google Webmaster tools, for example, and an .htaccess file.

Hosting
In your search for a company to host your site, be wary of online recommendations. Most of the big hosting companies reward those who successfully recommend their service, so don't trust those who gush about this or that host.

The best source of advice are your colleagues or friends who have sites and can report on their hosting services. Check out such things as: who answers the phone when your site is down? are there bandwidth and storage restrictions? how often is data backed up? can it be stored in multiple locations for safety's sake?

Content management systems
These are truly effective ways to create and maintain a website fairly easily. Of the three common free systems (WordPress, Joomla, Drupal), WordPress is by far the most popular and probably the most sensible choice.

All these systems importantly separate data from design, so you're able to back up or move your data, or to change your design easily without affecting your data. Designs are relatively easy to implement because there are "theme gardens" where you can find pre-packaged design themes that you can tweak to suit your purposes.

Security
If your site features well enough on Google (which is what you'd want), you'll find hackers trying to break into it for various nefarious reasons. None of the content management systems come out of the box with security fully implemented, so you'll need to take some basic precautions: choose complex passwords; tell search engines (with your robots.txt file) not to search image or system files; and use a plugin that locks out hackers after a certain (low) number of failed login attempts.

More from Steve and others as the day goes on…

LAWPRO has seen a significant increase in bad cheque frauds targeting lawyers all over North American over the last two months, and over the last week several new names are being used on the ongoing collaborative agreement frauds. We are also seeing more activity in the last few weeks on frauds involving a real estate purchase deposit and a settlement of an employment related personal injury claim. Over the last few months several hundred lawyers from across North American have reported to us that they received various versions of these messages attempting these frauds. See below for more details on each of these frauds. The reports to us are the tip of the iceberg – clearly thousands of lawyers are being targeted – and some have been successfully duped.

These frauds look like legitimate legal matters and are intended to cause you to disburse funds on a bad cheque, bank draft or US cashier’s cheque deposited in your trust account. These fraudsters will actively respond to communications (by email and even phone), sign retainer agreements (but not pay retainers as promised), provide identity documents and other supporting documentation and information, including copies of the collaborative agreement, a divorce judgement or decree, a payment agreement and ultimately a fake cheque or bank draft. The counterfeit documents are very good – on occasion they have fooled bank staff. For a more detailed description on how these bad cheque scams work see this earlier AvoidAClaim post.

New round of collaborative family law agreement frauds

The initial contact emails on this fraud states that a spousal support payment is owed further to a collaborative law agreement signed by husband and wife. This has been an ongoing and widely attempted fraud and there is a new round of this fraud using new client names. Over the last week lawyers from all over North America (and in particular Ontario, Massachusetts, Ohio, Michigan, Texas, Florida and California) have advised that they have received an initial contact email message setting up a collaborative agreement scam where the fraudsters are using four names we have not seen before: Gloria Lee, Dennis Luo Nicholas, Anita Bell and Adrian Benavides. Click on the links to see more specific details about each of these frauds.

The initial contact and subsequent email messages and supporting documents and information on these frauds are identical to those used in previous and ongoing collaborate agreement frauds we have seen by purported clients Kathy Cheung, Peggy Higashi, Beverly Kawashima, Jennifer Wong and Zaira Hoshiko and Rita Takahashi or Rika Takahashi. Click on the links to see more specific details and sample email correspondence for each of these frauds. Over the last several weeks we have seen a large increase in fraud attempts using the previously used names, in particular Zaira Hoshiko and Rika Takahashi.

Real estate bad cheque scam by Shiukmoda Joji

Late in February a real estate lawyer reported to LAWPRO an attempted fraud that came to him through a real estate agent he frequently works with involving an individual purporting to be Shiukmoda Joji. More than 60 other lawyers and real estate agents from all over North America have since reported to us that they were contacted by the purported Joji. It appears very large numbers of lawyers and real estate agents are being targeted by this fraud. Clearly real estate agents are being approached to give credibility to the deal when it is referred to a lawyer (and to do the deals in states where lawyers do not do real estate transactions).

This fraud appears to be a bad cheque deposit or payment scam. In this type of scam the fraudster pretends interest in a property and sends a certified cheque or bank draft as a deposit or full payment that will be deposited in the lawyer’s trust account. Soon after, some reason will be given for backing out of the deal and the fraudster will ask for the deposit or payment back, minus whatever legal fees and penalties the lawyer holds back. Of course, the original cheque was fraudulent, so any amount the lawyer sends to the fraudster will cause a shortfall in the trust account. See this AvoidAClaim post for more details on this fraud.

Employee injury settlement fraud by Karen Clark, Michael Park or Gary Triestman

Over the last several months we have seen this fraud a few times, and several times in the last week. It is a simple bad cheque fraud that involves the supposed payment of a settlement due to an injury at work from an employer to employee. Versions have come from people purporting to be Karen L. Clark (or Karen Clark), Gary Triestman and Michael Park. See this AvoidACaim post for more details on this fraud.

Keep your guard up and don’t get scammed!

If you have been targeted by this fraud, please forward any of the emails you have received to fraudinfo@lawpro.ca.

If you are a LAWPRO insured, please call LAWPRO at 1-800-410-1013 (416-598-5899) if you suspect you are acting on a matter that appears like it might be a fraud. We will talk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. In the event the matter you are acting is a fraud and there is a potential claim, we will work with you to prevent the fraud and minimize potential claims costs.

If you are an Ontario lawyer that has been successfully duped, please immediately notify LAWPRO as there may be a claim against you. Instructions on how to report a claim are here.

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

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

Cross posted on Avoid A Claim

The employment standard under the Accessibility for Ontarians with Disabilities Act (AODA) is found under part III in the Proposed Integrated Accessibility Regulation (PIAR), which is slated to become law around July 2011 (not confirmed). This standard requires an organization that is an employer to engage in the proactive identification, removal and prevention of barriers hindering the full participation in employment of persons with disabilities. It also requires that organization to have policies and procedures for establishing individual accommodation plans where barriers cannot be removed proactively, shifting the onus from the individual who needs the accommodation to the person who provides it.

Moreover, the accessible employment standard will require organizations to provide accessibility for persons with disabilities throughout the employment life cycle (i.e., recruitment, retention etc). The employment accessibility standard will apply to all employers in Ontario, provided that they employ at least one paid employee including full-time, part-time, or apprenticeships. Note that this standard does not apply in respect of volunteers and other unpaid individuals (e.g., co-op placements, high school work experience placements).

Obligated organizations that are employers (as set out below), must meet the following requirements under the AODA employment standard:

• For the Government of Ontario and the Legislative Assembly, January 1, 2013
• For large designated public sector organizations, January 1, 2014
• For small designated public sector organizations, January 1, 2015
• For large organizations (50 or more employees), January 1, 2016
• For small organizations (at least one but fewer than 50 employees), January 1, 2017

To meet their obligations under the law, employers will have to develop an organizational accessible employment policy statement. Employers will also be required to develop, adopt, document and maintain policies that support the implementation of the commitments in the policy statement (also discussed in part II of this series), including:

• Prevention, identification and removal of barriers throughout the entire employment cycle
• Inclusive design of employment systems and processes
• Support of persons with disabilities from recruitment through hiring
• Individual accommodation plans
• Respect for privacy of information related to accommodation
• Provision of information in accessible formats and methods
• Provision of disability awareness training to employees

As with the Customer Service and Information and Communication Standards, the employment standard consists of several specific parts:

• Recruitment, selection, hiring process and employment cycle
• Workplace emergency response information
• Return-to-work process
• Performance management
• Career development and advancement
• Redeployment
• Accessible formats and communication supports for employees

All of the above parts to the employment standard must meet the documented individual accommodation plans outlined below, except when an employer is exempt.

Recruitment, selection, hiring process and employment cycle

Employers must focus on disability-related issues through the recruitment and hiring stages of the employment relationship.

This means employers would have to notify employees and the public about the availability of accommodation for applicants with disabilities in their recruitment, selection and hiring processes.

During that process, the employer would also have to notify job applicants when they are individually selected to participate in an assessment or selection process that accommodations are available upon request in relation to the materials or processes to be used. If a selected applicant requests an accommodation, the employer must consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability. However, the decision as to which accommodation is to be provided rests with the employer.

In addition, when making offers of employment, employers must notify the successful applicant of their policies to support employees with disabilities, including, but not limited to, job accommodations that take into account an employee’s accessibility needs due to disability. They must notify new employees again as soon as practicable after they begin their employment.

As for current employees, the employer must inform them of policies used to support and accommodate employees with disabilities, including, but not limited to, job accommodations that take into account an employee’s accessibility needs due to disability.

What does this mean in practical terms? Employers need to make sure that applicants with disabilities can find and compete for jobs just like everyone else. To do that, employers need to make sure that their entire recruitment process ― advertising, application, selection and interviewing — is accessible to ensure that people with disabilities are treated the same as every other applicant. In addition, employees who become disabled during employment must be able to retain their jobs, if they can still perform the essential duties of the job.

While the employment standard under PIAR does not require employers to have written job descriptions, they should do so. Written descriptions will help identify the essential duties of a position and will outline the special skills, knowledge and abilities required to carry out the essential duties. Essential duties are the basic job duties that an employee must be able to perform with or without accommodation.

Under human rights legislation, the ability for an organization to make reasonable accommodation is tied to the position’s essential functions. Thus, logically, this principle should help employers apply the AODA employment standards in their recruitment, selection, hiring processes and employment cycle.

As the employer, you should carefully examine each of your positions to determine which functions or tasks are essential to performance. In identifying an essential function, you should focus on the purpose of the function and the result to be accomplished rather than on how the function is currently performed. Determining whether a function is essential to the position, you should consider the following factors:

• Whether the reason the position exists is to perform that function
• The number of other employees available to perform the function or among whom the performance of the function can be distributed
• Whether the function is highly specialized and the incumbent is hired for the degree of expertise or skill required to perform the function

Duties or tasks not meeting the above test or otherwise not essential to the positions should be labelled "other duties."

For example: In a job requiring the use of a computer, the essential function is the ability to access, input and retrieve information. It is not essential that the employee enter information by hand or read the information on the screen visually, since adaptive devices or computer software can enable a person without arms or with impaired vision to perform the essential functions of the job.

This may also include application forms in an alternative format or adjustments to the recruitment process such as arrangements during interview or correspondence in a different format.

For example, many organizations are moving toward using the Internet as their sole means of recruiting, posting jobs openings and collecting resumes and applications, if the career section of their website is not accessible, they may be opening themselves up to liability because they are closing people off from being able to apply for a job. Under the AODA, employers will have to ensure that an alternate application process is available in case their public website is inaccessible; or, better yet, make their online recruitment site accessible by designing web pages to meet the needs of individuals with motor, sensory and neurological impairments. Ensure online examinations conform to standards of web accessibility.

Remember that people with disabilities may not have acquired formative work experience that employers seek, but they may have other valuable experience and skills that will make them productive employees.

Employers could ask applicants to describe what adjustments they need in order to be evaluated fairly (i.e., more time on tests where appropriate, a sign language interpreter for interviews). Employers could provide a detailed description of the recruitment process so applicants can anticipate their adjustment needs at any particular stage.

Some experts suggest employers deactivate language testing (i.e., spelling) in CV sorting/scoring programmes for applicants with declared cognitive/language impairments to remove barriers for people with learning disabilities and also those with English as a second language. Or, review tests to ensure their relevance to specific positions and consider using job-tests and/or internships in the place of generic aptitude tests where applicable (i.e., allow a disabled computer programmer to demonstrate that they can operate the job-relevant software/ hardware).

When you do make a job offer, remember that for many reasons, applicants may not have declared a hidden disability such as diabetes or a mental health problem during the recruitment process. Many people do not regard their impairment to be a disability. Some are unwilling to disclose this sort of information for fear of being discriminated against. Others feel their disability has no bearing on their ability to do the job they are applying for and so is irrelevant. When offering the job, give every successful applicant another opportunity to discuss any adjustments they may require.

In addition, assistive devices such as voice recognition, large print or screen readers can allow an employee or potential employee to use a computer productively and independently. These assistive devices are designed to work with standard hardware and software platforms.

Workplace emergency response information

By January 1, 2012, every obligated employer must provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability. If an employee who receives individualized workplace emergency response information requires assistance and with the employee’s consent, the employer must provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.

Employers must provide the above information as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

The individualized workplace emergency response information must be reviewed:

• When the employee moves to a different location in the organization
• When the employee’s overall accommodations needs or plans are reviewed, and
• When the employer reviews its general emergency response policies

What does this mean in practical terms? This obligation to provide information in an accessible format will apply to your violence and harassment policies, your pandemic plans, your fire emergency procedures and your first aid plan, among other emergency response procedures.

Return-to-work process

Every employer, other than an employer that is a small organization, must develop and have in place a return-to-work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work. They must also document the available process.

The return-to-work process must outline the steps the employer will take to facilitate the return to work of employees who were absent because their disability required them to be away from work; and use individual documented accommodation plans as part of the process.

What does this mean in practical terms? You may have to change the work that employees do or how they do it. Anyone may acquire a disability during their lifetime, or a disability may become more limiting. The return-to-work process referenced in PIAR does not replace or override any other RTW process created by or under any other statute (i.e., Human Rights Code, Workplace Safety and Insurance Act). At first glance, they seem to have common characteristics. However, PIAR requires the employer to assess, identify and source in advance of an employee’s start date, if possible, any accessibility issues or accommodations needed by the returning employee.

Ensuring a successful return to work after an employee has been on short-term or long-term disability leave requires some planning. Employers should prepare and ensure that appropriate accommodations are in place and manage the return-to-work process. Some suggestions include:

• Evaluating employee's functional abilities
• Performing physical demands analysis of existing or potential job
• Identifying specific job modifications, including assistive devices and ergonomic equipment
• Preparing a return-to-work plan, e.g., gradual return, supported return, part/full time, training, etc.
• Providing support and direction in the return-to-work process

Everyone in the workplace needs to understand that the return of a worker with an acquired disability might require what is perceived as “special treatment”. However, under this requirement, all must understand that, that “special treatment” will be given to everyone in the same way when applicable.

Performance management

An employer that uses performance management in respect of its employees must take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, when using its performance management process in respect of employees with disabilities.

For the purpose of this standard, “performance management” means activities related to assessing and improving employee performance, productivity and effectiveness, with the goal of facilitating employee success.

What does this mean in practical terms? Organizations that use performance management processes (aimed at helping employees to be successful in their jobs) must make sure that they can be, and are, used in a way that is consistent with employees' individual accommodation needs or plans. Employers should retain and promote staff using the same criteria for all employees. Think of identifying training needs when you regularly assess the work performance of all employees. Focus on achievements and how well someone does their job when you are assessing performance. Don't focus on any disabilities employees may have. Provide information in accessible formats. Make sure you consider all options in looking for ways to support employees.

Career development and advancement

An employer that provides career development and advancement to its employees must take into account the accessibility needs of its employees with disabilities as well as any individual accommodation plans, when providing career development and advancement to its employees with disabilities.

For the purpose of this standard, “career development and advancement” includes providing additional responsibilities within an employee’s current position and the movement of an employee from one job to another in an organization that may be higher in pay, provide greater responsibility or be at a higher level in the organization, or any combination and which, for both additional responsibilities and employee movement, is usually based on merit or seniority, or a combination of them.

What does this mean in practical terms? Organizations that provide their employees with career development and advancement information must make sure that their employees with disabilities receive the information in a way that is consistent with their individual accommodation needs or plans. Make sure all employees have the chance for learning and personal development. Make sure all employees know about opportunities for transfers and promotions. Avoid informal contacts to avoid excluding anyone who may be interested. When an employee who has individual accommodation needs or an accommodation plan takes on new job responsibilities, the organization must provide training on the essential job duties. This training must take the employee's accommodation needs or plan into account.

Redeployment

An employer that uses redeployment must take into account the accessibility needs of its employees with disabilities, as well as individual accommodation plans, when redeploying employees with disabilities.

For the purpose of this standard, “redeployment” means the reassignment of employees to other departments or jobs within the organization as an alternative to termination or temporary layoff, when the organization eliminates a job or department.

What does this mean in practical terms? Where organizations have a procedure for moving an employee to another job where the existing position is ended (redeployment), the procedure must:

• Apply to employees with disabilities
• Take individual accommodation needs or plans into account
• Include consultation with the employee and/or the employee's representative, upon request

Accessible formats and communication supports for employees

In addition to the above obligations, where an employee with a disability so requests it, every employer must consult with the employee to provide or arrange for the provision of accessible formats and communication supports for:

a) Information that is needed in order to perform the employee’s job; and
b) Information that is generally available to employees in the workplace.

The consultation determines the suitability of an accessible format or communication support, but the final determination as to which accessible format or communication support will be used rests with the employer.

Documented individual accommodation plans

Employers, except employers of small organizations, must develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

The process for the plans includes the following elements:

• The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan
• The means by which the employee is assessed on an individual basis
• The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to determine if and how accommodation can be achieved
• The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan
• The steps taken to protect the privacy of the employee’s personal information
• The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done
• If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee
• The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability
• Individual accommodation plans must:
  • If requested, include any information regarding accessible formats and communications supports provided
  • If required, include individualized workplace emergency response information, and
  • Identify any other accommodation that is to be provided

Obligated organizations will be required to provide employees with a copy of their individual accommodation plan.

Although they must still comply with the process, private and not-for profit organizations with 1–49 employees will not be required to have this process in writing.

Also note that whenever there is a change in the employer’s policy to accommodate and support a person with disabilities, the public, applicants and employees, must receive notification of such change.

Last words

It is important for employers to remember that an organization’s compliance with the accessibility employment standard under the AODA does not necessarily mean it has met its obligations under the Human Rights Code or the Workplace Safety and Insurance Act. The government has made this clear by stating: “The Accessibility for Ontarians with Disabilities Act does not diminish existing legal duties under the Code and other laws with respect to accommodation of persons with disabilities.” Organizations will still be required to accommodate to the point of undue hardship or meet their return-to-work and re-employment obligations under the WSIA.

Make sure your employees, managers, supervisors and recruitment managers are aware and trained on their legal obligations under the AODA employment standard.

A truly accessible workplace takes into account the needs of the individual employee, but also strives to remove systemic barriers for current and future employees and customers of your company. It is important that employees feel they can disclose information and ask for assistance.

Previous instalments in the AODA Era series:

AODA Era Part III: Information and Communication Standard
AODA Era Part II: What’s Up Next? The Proposed Integrated Accessibility Regulation
The AODA Era Part I: The Accessibility Standards for Customer Service, How Much Time Do I Have?

On occasion, a party will intentionally contact or attempt to meet with one or more lawyers for the sole purpose of creating a conflict that will prevent the lawyer(s) from acting for another party on a pending matter.

Despite the bad intentions of the individual making these contacts, the lawyer(s) contacted may not be able to act for the other party, especially if confidential information was disclosed.

This behaviour occurs quite frequently in the family law area and in specialized areas of the law where there are a limited number of experts. In smaller communities this can be very frustrating as such behaviour can make it difficult or even impossible for someone to retain a local lawyer. And when a client is looking for a lawyer with specialized expertise, choices may be limited. In both cases it means that a lawyer or firm must turn away a matter that they could otherwise have handled.

To prevent these tactical conflicts from occurring, law firms should have clear and established procedures to screen all incoming calls and inquiries for potential conflicts. Staff and lawyers should be on the lookout for these types of calls, especially on family law matters. They should be trained to collect enough information to evaluate potential conflicts, while at the same time being sensitive not to ask for or collect confidential information. An intake conflicts screening form can help ensure that the appropriate information is collected to identify possible conflicts.

The Conflicts of Interest Toolkit created by the CBA Conflicts of Interest Task Torce has a model conflicts screening form in PDF and Word formats.

When it appears that a caller may be trying to create a tactical conflict, this should be carefully confirmed and if so, a non-engagement letter should be sent to the caller. See the CBA Toolkit for a precedent.

On your firm’s general voicemail greeting and, if appropriate, on individual lawyers’ voicemail greetings, consider including a warning for callers not to leave confidential information. And on your firm’s website, include statements that warn site visitors that unsolicited information or materials sent to the firm or left on voicemail will not be guaranteed confidentiality, and that access to or use of the site or firm voicemail does not create a solicitor-client relationship.

With a bit of effort, the simple and profound 2/3 Rule can transform you and your practice. I have mentioned this rule in dozens of presentations over the last several years and it always gets great feedback so thought it was worthy of a SLAW posting.

This simple rule says the goal of being a happy lawyer with a successful practice can be achieved provided all your clients/matters meet at least 2/3 of the following requirements:
1. You are working on interesting and challenging legal problems.
2. You are working with people you enjoy.
3. You are getting paid for your work.

And note, there is nothing wrong with doing pro bono work that you actually agreed to do on a pro bono basis, provided it is on interesting and challenging matters for clients you enjoy working with.

Go through your client/matter list – how many of your clients comply with the 2/3 Rule? For many of you, I suspect at least a few of your clients don’t comply and I suspect those clients cause more than their fair share of grief for you (i.e., they are probably your most difficult clients and/or they are well represented on your AR list).

You can be happier and build a better clientele by taking steps to make sure all your current and future clients comply with The 2/3 Rule. Keep The 2/3 Rule in mind next time you are considering accepting a new retainer from a client who does not comply – don’t take on the file. Slowly over time you can work towards the goal of having all your clients comply with The 2/3 Rule.

A hat tip to Ottawa family law lawyer Lawrence Pascoe who shared this tip with me in a CBA presentation we did together many years ago in Montreal. He got it from a Belgian lawyer he had met.

Cross-posted on AvoidAClaim.com.

Rachel Rodgers makes a great point in her post today at SPU — the idea that in business, everything has a cost. She illustrates:

"Using an old laptop that gives you trouble every now and then has a cost. The cost is lost time that could have been spent working and the ensuing frustration that prevents you from being creative."

or,

"Not purchasing software that makes work flow and management efficient has a cost. Not having staff that can handle certain time consuming tasks has a cost."

She also correctly notes that even for a new business, sweat equity will only go so far. Is it a great starting point? Of course, and a necessity. But once any kind of cash flow has been established, there's a business to be managed — one that requires targeted (even if minimal) investments.

These are tough lessons. And frankly, ones I wish personally that I took seriously sooner. And I say "took seriously" because let's face it: everyone knows they need to delegate, outsource, simplify, let go, invest in their time, etc. Being decisive and executing on the other hand… is much more than lip service, or leafing through E-myth one more time. Knowing when and what to outsource isn't easy. And it goes beyond managing your business, and should be considered on a personal level too. Who mows your lawn or weeds your garden in the summer? If you only have one day each week to spend with your family, and you lose it to yard work, that's $150/month poorly saved. Unless you love it, of course. Stress killers are an investment too.

Each business owner finds their own valued investments, but here are a few that stood out from my own experience:

• online invoicing;
• web based project management;
• hiring part-time contractor help;
• replacing or adding something tech-wise each year;
• part-time employees (and yes, sweating over that first hire is worth it);
• help with banking or running errands;
• hiring a payroll service (far less expensive than I expected); and
• hiring accountants and bookkeeping help from day-1 (or year one, more likely).

Any other entrepreneurial SME-types or lawyer-entrepreneurs care to add to this list? Thinking back to your early business days, any fond recollections of your first business investments?