At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article on Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article of Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

In Elusive Destiny: The Political Vocation of John Napier Turner, Carleton University historian Paul Litt has written a sympathetic and interesting account of one of Canada's most gifted political figures. Litt leaves the reader wondering what Canadians missed out on by not having John Turner as Prime Minister for an extended time. Those interested can delve into this book.

Turner did serve as Justice Minister for almost four years (July 1968 – January 1972). He was an activist, reformist and progressive Justice Minister but he also served as Attorney General during the invocation of the War Measures Act during the October Crisis in 1970. We have records of Turner's actions as Justice Minister but Solicitor-Client Privilege shields the advice that he gave Trudeau and the Cabinet regarding the October Crisis. That is unfortunate and serves no good purpose, 40 years after the fact.

Litt makes a strong case for Turner as possibly Canada's best ever Justice Minister. A look at the list and the brief tenures of many Justice Ministers since Confederation shows that there is something to Litt's claim. Turner pursued liberal bail reforms and expropriation reforms. He created the Federal Court. He reformed judicial appointments. He established a Legal Research and Planning section of the Department of Justice. He convened his own justice thinkers conference at Montebello which included Dean of McGill Law Maxwell Cohen, future Supreme Court justices Gerard Le Dain and Gerard La Forest, F.R. Scott and Harvard Law Professor Alan Dershowitz. He created the Canadian Judicial Council and the Law Reform Commission of Canada (pp. 109-19).

Like the brother of his acquaintance Bobby Kennedy, Turner surrounded himself with the best and the brightest. He hired Jerry Grafstein and a hippyish Irwin Cotler fresh out of a grad school who apparently freaked people out with "his long hair and granny glasses" (p. 115).

I was particularly drawn into Litt's account of Turner's attempts to strengthen legal aid. Turner examined the possibility of creating a national legal aid system. According to Litt: "In March 1970 [Turner] announced that he would be negotiating with the provincial attorneys general the establishment of a coast-to-coast federally funded legal aid system that would cover both civil and criminal cases. His plan was modelled on medicare, with federal money to be provided to the provinces if they met certain standards. He won the Canadian Bar Association's endorsement for it that September." (p. 112).

What happened next is both tragic and predictable. The provinces balked, on the grounds of cost and jurisdiction. Turner kept trying. He mooted the possibility of inserting a right to counsel into the charter of rights that was under consideration at the time but again the provinces opposed him. He thought about proceeding unilaterally by amending the Criminal Code – imagine the provinces response to that! In the end, Turner maintained the hope that comprehensive coverage could be achieved through fed-prov negotiation (p. 113).

The discussions that Turner initiated 40 years ago continue but we appear no closer to achieving any agreement on a national legal aid programme, let alone on increased federal participation in provincial programs. In 2011, I am sure that many of the provinces regret the obstinacy of their predecessors.

One wonders what might have been if Turner had pushed harder and had decided to proceed unilaterally if the provinces would not come to an agreement.

We can only speculate. Instead, we are left with the realization that the most political energy that was expended on the legal aid was spent four decades ago. Elusive Destiny could well refer to this file as well.

For authors on SLAW, you know that in today's world, obtaining a publishing agreement with a traditional publisher means that you have to show your publisher how YOU will market and promote your own book. Those authors with a broad reach will of course be more attractive to a publisher. By the time you contact a publisher, you likely have some blog postings and perhaps print articles on your CV, but how about Twitter, Facebook, LinkedIn and other online marketing tools? What to do and where to do them? And a biggie – how much time to spend marketing rather than writing and perhaps making a living! I recommend all authors (and others interested in online marketing and publicity) take a look at the Wiley Author's Guide to Online Marketing & Publicity.

The Attorney General for England and Wales, Dominic Grieve gave a very interesting speech on December 1 entitled 'Contempt – A Balancing Act: balancing the freedom of the press with the fair administration of justice' to journalism students where he commented on his approach to contempt of court.

'Citizen journalists' should not think they are immune to the law of contempt, that there is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. While he accepts the danger posed to the administration of Justice by many bloggers is minimal, he say that we should not underestimate the potential for a blog or tweet to go viral.

We have seen in recent years not only the rise of social media but also the blog and the citizen journalist. Unlike major news organisations, which on the whole act in a responsible and measured manner, the inhabitants of the internet often feel themselves to be unconstrained by the laws of the land. There is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. This is mistaken.

Whilst I accept the danger posed to the administration of Justice by many bloggers is minimal, we should not underestimate the potential for a blog or tweet to go viral. As incautious city bankers and brides to be have discovered to their cost, comments on the web can soon be published far beyond their original, limited audience. And I use the word published advisedly, as publication is of course the phrase used within the Contempt of Court Act – an online article which breaches the strict liability rule runs the risk of running afoul of the law of contempt.

……………………..

The last case which I would like to mention involves something with which I suspect many of you are very familiar – Facebook.

A defendant in a trial had been acquitted of the charges she faced but the jury continued to consider their verdicts regarding her co-defendants. The night of her acquittal, one of the jury decided to go online and chat on Facebook.

Unfortunately she chose to track down the acquitted defendant on Facebook and proceeded to let her know her thoughts on the trial and the ongoing debate in the jury room. Knowledge of jury discussions is forbidden to all outside the jury. It is an offence under the Contempt of Court Act 1981 to 'obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings'

In this case the juror and the former defendant engaged in a Facebook chat about what was happening in the jury room. Their conduct came to the attention of the Judge and eventually to me. Again, in my Public Guardian role, proceedings for this type of contempt of court cannot be instituted save by or with my consent or on the motion of a court having jurisdiction to deal with it. I concluded a contempt had been committed.

The juror admitted her contempt and was committed to prison for 8 months. The former defendant denied wrongdoing but, after a brief trial, was found also to be in contempt – she too was committed for 2 months, although in her case the order was suspended for 2 years as she had been on remand for some months before the trial of the original matter.

The case highlighted important principles and again that the internet does not provide some form of immunity from prosecution. Jurors must feel able to openly express their views and opinions to their fellow jurors without fear that they will be subjected to public exposure and possible ridicule or disgust. This prevents juries from being inhibited as they discuss the merits of the evidence which they have heard. It is essential that the sanctity of the jury room is preserved.

The revolution in methods of communication cannot change what the Lord Chief Justice has termed 'essential principles' and that is why contempt proceedings will be brought by me when required.

Here is the Evening Standard's take, the Guardian, and the Daily Telegraph.

This isn't just about speech making. Last week, he applied to the High Court for permission to bring contempt proceedings against Theodora Dallas, a juror in a trial at Luton Crown Court. Ms Dallas was told by the trial judge not to conduct research on the internet. The case she was trying, which involved three defendants charged with causing grievous bodily harm, was discharged and a retrial ordered. Apparently, she deliberately looked up information about one of the defendants, a court was told last week.

As the Telegraph reports, Louis Mably, counsel for the Attorney-General, said: “Next day, when the jury retired, she informed other members of the jury. Her conduct was reported to the court and the judge discharged Ms Dallas and the remaining jurors.”

The Telegraph also reports on an interview which is behind the Times' firewall:

In an interview with The Times Mr Grieve admitted the internet did present challenges but it was only a “lawless territory” to the extent that it made enforcing contempt laws more difficult if “people post things on the net abroad”.

He also dismissed “tittle-tattle on Twitter” as necessarily posing a problem to enforcing the contempt laws.

“Ultimately, no one thought that the contempt of court rules, even before 1981, would prevent dinner party tittle-tattle and nor should we necessarily get too exercised about that,” he said.

He added, however, that if comments went “viral” and were “reached by thousands or millions of people accessing a particular site or blog then of course we are going to be exercised about it”.

Mr Grieve said: “Judges have been given directions to jurors for a long time not to discuss cases with those who are outside the jury room. We know that long before the internet some failed in their duty occasionally and were punished for it.”

I am unaware of any of the Canadian Law Officers of the Crown having spent this much time thinking about these issues.

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

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

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

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

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

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.

The Federal Courts Rules Committee has asked that the Discussion Paper on a possible global review of the Federal Courts Rules should receive wide distribution to members of the public and the profession. The final version of the paper has been posted in both official languages on the web sites of the Federal Court of Appeal and the Federal Court.

For Slaw readers the most interesting issue under discussion is

advancements in information technology are encouraging more and more litigants to become actively involved in the litigation process, even if they do not ultimately seek to represent themselves before the court. They may want to know about the ways in which matters proceed in the Federal Courts. In some jurisdictions, such as the Federal Court of Australia, this trend has led to web-based and other initiatives to make the litigation process more accessible to the general public. This does not replace professional advice and representation, but it provides a useful service in informing the public and facilitating the involvement of litigants in a way that is consistent with the prudent management of court resources and with the effective resolution of disputes. Indeed, the increase in the use of information technology generally has changed the way in which the public expects to receive information of all sorts, and this too may affect the way in which the Rules or information about the Rules should be presented. This could entail the introduction of supplementary web-based guidance on the practice of the Federal Courts, either independently or as part of an initiative to reform the Rules.

In this message, they invite you to participate and to provide input.

Why a global review?

In 1998, the Federal Courts Rules came into being. They made many significant changes to the previous rules. Many of those changes implemented certain broad policies aimed at furthering fairness and efficiency in the management and governance of litigation.

But much has happened in the last 13 years. Over that time, and partly in response to the changing nature of litigation, many piecemeal amendments to the rules have been made. To some extent, the rules are now like a quilt on which many patches have been sown.

Now is the time to conduct a global review of the rules, examining whether they still further their purposes. In other words, now is the time to look at the entire quilt and assess it.

What has happened so far?

The Rules Committee is the body that considers and approves changes to the Federal Courts Rules. It is a committee comprised of representatives of the Federal Courts, the Bar, and the academic community. Recently, that Committee decided that a global review of the rules should be conducted. The original vision of the framers of the rules was that such a review should take place roughly once a decade.

As a result, a subcommittee on global review has been established. The subcommittee is to study the matter, consult widely with the Federal Courts’ various stakeholders, and report back to the Rules Committee. The subcommittee has begun its study.

What might change as a result of the global review?

Upon receipt of the subcommittee’s report, the Rules Committee will discuss the matter and reach certain conclusions about particular policies that need to be adopted and implemented in the rules. The global review process is a policy review and policy adoption process, not a consideration of particular rule changes.

However, if new policies are adopted in the global review process, the Rules Committee will consider how those policies should be implemented in the rules. Specific proposals for amendments to the rules may then be made.

The global review process is now under way. Now is the time for you to have your say on the policy matters that could result in important amendments to the rules.

Some of the policies being discussed right now

The subcommittee on global review has identified several policy issues for discussion and consideration. In identifying these issues, the subcommittee does not express any opinion at this time on the significance or the merits of these issues.

Professor Janet Walker has prepared a discussion paper on these issues.

To summarize, the policy issues are as follows:

1. The involvement of the courts in proceedings. At present, with the exception of case-managed proceedings, the rules largely permit parties to manage their own proceedings, with little input from the courts. Should the Federal Courts seek to engage more actively in the management of proceedings, and, if so, in what sort of proceedings, and how should management take place? Should litigation plans be required from the parties and assessed by the court, and, if so, in what sort of proceedings and on what basis should the assessment proceed? Does the existing system of case management work well? Do cases with self-represented litigants raise special considerations? Should the courts be empowered to impose sanctions for abuse of procedures and, if so, in what circumstances, and what sort of sanctions?

2. Judicial determination vs. alternative disposition (e.g., settlements)? Currently the rules are aimed primarily at getting matters ready for a judicial determination on their merits. For example, rule 3 provides that “[t]hese Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.” Can the rules do more to promote settlements? Should they? How might they do so?

3. Proportionality. Should the extensiveness of court procedures vary according to the magnitude of the dispute? What procedures might be attenuated, and in what sorts of cases? If proportionality is to be implemented as a policy, is this best done under rule 3, or under specific rules concerning particular procedures?

4. Practice directions. These allow for minor procedural matters to be addressed quickly and flexibly. However, they are not the product of wide consultation and counsel and self-represented litigants are often unaware of them. Are too many matters being regulated by practice direction? Should any existing practice directions be promoted to rules or vice versa? What can be done to ensure greater compliance with practice directions? Can practice directions be better publicized? How?

5. “One size fits all” procedures vs. specialized procedures. For the most part, the rules adopt a “one size fits all” approach – virtually all of the rules apply to virtually all proceedings. Should there be specialized procedures for specialized areas, e.g., intellectual property, immigration, or does the “one size fits all” approach work well even for specialized areas?

6. The architecture of the rules. Is the current structure, ordering, numbering and indexing of the rules “user-friendly”? In this regard, it should be remembered that some users are self-represented litigants. Might “user-friendliness” be accomplished in other ways, such as through the use of information technology, and, if so, what ways?

7. Other issues. We invite you to suggest other policy issues that should be discussed and considered, and to offer your views on those issues.

Please note that another subcommittee is examining issues relating to the rules and whether they pose an obstacle to the use of information technology. Those issues are not within the mandate of this subcommittee. Ultimately, the work of both subcommittees will be considered together by the Rules Committee, and specific reforms may be proposed.

We invite you to participate

You can participate in two ways. First, you can provide written comments directly to the subcommittee. Second, this autumn, there will be an opportunity to meet and discuss these issues with members of the subcommittee.

To make written comments, please email or write by January 6, 2012 to:

Ms Chantelle Bowers,
Executive Assistant to the Chief Justice,
Federal Court of Appeal,
90 Sparks Street,
Ottawa, ON K1A 0H9
Chantelle.Bowers@fca-caf.ca

Dates and locations for the meetings will be announced in the new year.

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.

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.

Recently, I had occasion to look at the speeches and presentations made by members of ultimate courts of appeal – the Supreme Court and its equivalents. And Canada ranks somewhat disgracefully last in terms of making the speeches publicly available.

Eugene Meehan has monitored the court too for speeches and presentations, but his pickings are similarly slim in recent years.

Compare this record to Chief Justice French of the High Court whose seventeen speeches from 2010 and eleven to date from 2011 are available here

His predecessor Chief Justice Brennan's speeches from the Nineties are there prominently available.

The new UK Supreme Court has a decent record, though some falling off between 2010 and this year.

Even Chief Justice Balakrishnan has a better record in New Delhi.

The US Supreme Court seems to publish only speeches by justices nominated under Democratic administrations – Chief Justice Roberts speaks often but you won't find the speeches archived. I found remarkable a speech by Justice Ginsburg from July commenting on the most recent term.

All I can assume is that the updating of the SCC website has lost priority because of other pressures, or that the controversy from the conservative press' reaction to the Unwritten Constitutional Principles speech has led the court to permit publication of remarks in other places, but not the court's own website.

There is an important speech by Justice Ian Binnie entitled, Sondage Après Sondage . . . A few Thoughts about Conflicts of Interest” by Justice Ian Binnie, edited version of remarks at a panel discussion at Les Journées Strasbourgeoises in Strasbourg, France, on July 4, 2008, which illuminates the court's decision in R. v. Neil but you won't find it anywhere electronically, only in a conference volume published by Les Editions Yvon Blais.

And speaking of Justice Binnie, the entire transcript of his interview with the Globe and Mail's Kirk Makin is well worth reading.

The following article by Nora Rock appears in the Fall 2011 issue of LAWPRO Magazine.

At LAWPRO, we’ve seen a growing proportion of incivility allegations cropping up in claims. For example, lawyers may find themselves personally liable to pay a party’s costs under Rule 57.07 (Rules of Civil Procedure) where the court has found that the lawyer’s actions contributed to running up the bill.

Incivility can also lead to other consequences. The client’s case may be prejudiced because the lawyer is unfavourably viewed by a jury; or a prospect of settlement may evaporate in the face of a lawyer’s rigid posturing. Finally, a court may make an order designed to rectify an abuse of process: For example, an order terminating discoveries, or dismissing motions deemed excessive. It’s not difficult to understand that these consequences of uncivil behaviour often culminate in a claim against the lawyer.

Here are some consequences of incivility that LAWPRO has noted:

Self-represented lawyer must still behave like a lawyer

While representing himself in a defamation action against a publisher, a lawyer made “intemperate” statements about the defendant organization in his pleadings, including accusing it of “evil profiling.” In correspondence with the defendant’s counsel, he accused them of sharp practice, and suggested that they were personally motivated to ruin or embarrass him. The court found that the lawyer’s statements violated Rule 6.03 of the Rules of Professional Conduct, and ran contrary to Principle 27 of the Principles of Civility published by The Advocates’ Society, which provide that a lawyer should not:
“…attribute bad motives or improper conduct to opposing Counsel, except when relevant to the issues of the case and well-founded.”

In dismissing the litigation due to the plaintiff’s non-compliance with certain court orders, the court ordered that the plaintiff pay costs on a substantial indemnity scale, but only for the motion in which the inappropriate comments were made. The lawyer protested that he was appearing not as counsel, but as a self-represented litigant, and so should not be subject to punitive cost awards designed to curb lawyer misbehaviour. The court disagreed, holding that “…a lawyer who is representing himself is still acting as a lawyer (as well as a litigant) and is bound by the rules that apply to lawyers.”

Civility to clients is at least as important as civility to members of the justice system

In another case, the discipline committee of the Law Society of Upper Canada considered seven separate allegations of professional misconduct made against a lawyer.

Three of the five allegations related to the lawyer’s relationship with clients. The first two centered on the tone of a letter sent to the client in an attempt to collect fees. In the letter, the lawyer made a racist remark about the client and threatened criminal proceedings if the client failed to pay the lawyer’s bill.

The final allegation described the lawyer’s refusal, after being removed as the solicitor of record, to transfer the client’s file to the successor lawyer. The Law Society found that all of these actions constituted professional misconduct. In addition to the penalty imposed by the Law Society, a successful claim was made against the lawyer’s malpractice insurance.

In our experience, incivility to clients is an important trigger for claims. Even though the claim may ultimately be framed in negligence, it is not uncommon for the claim to be filed in reaction to an incident of incivility. As noted by Mark Lerner, establishing a relationship of mutual respect and trust at the outset of the lawyer-client
relationship can prevent much misery further down the road.

Rule 57.07 intended not to punish, but to compensate

An important message about the purpose of Rule 57.07 (costs against a lawyer) was reinforced in the judge’s reasons in a case that ended up in an insurance claim.

In this case, the court found that while the lawyer’s deportment was quite civil (with one minor exception), the lawyer was ill-prepared for the litigation. His weak grasp of evidence law and the Rules of Civil Procedure led to considerable time and effort spent by opposing counsel to address matters (for example, the testimony of “experts” that the court ultimately refused to qualify as experts) that never amounted to anything. In characterizing the lawyer’s case as “a moving target,” the court found that the lawyer’s lack of preparation increased the costs for the other side, justifying a Rule 57.07 order. The court made it clear that, as established in Walsh v.1124660 Ontario Ltd. ( [2007] O.J. No. 639, Lane J.), Rule 57.07 is designed not to discipline lawyers, but to compensate aggrieved parties for wasted costs.

Whether or not it flows from incivility, fighting a Rule 57.07 order often means the lawyer must make an insurance claim to cover not only the costs ordered in the litigation, but also the lawyer’s own defence costs.

The bottom line here: Being professional means not only being civil, but also being prepared – a duty lawyers owe not only to their clients, but also to opponents and to the court.

The Fall 20011 issue of LAWPRO Magazine features an article called Let's Get Talking, in which LAWPRO canvassed a number of people inside and outside the legal profession on the topic of client engagement and communication. What we learned is that there is often a problem with the way lawyers communicate with their clients. Communication is integral to the client experience, and a bad customer experience often defaults into an allegation of communication failure (the source of almost half of LAWPRO claims costs).

The end of the article features a summary of tips from the experts we spoke to on how they make communication work better for them:

• Give your clients some homework: Give them a checklist of things they will need to do and should want to do to help keep the case moving forward.
• Give them a “manual”: This doesn’t have to be as thick as a car manual, but it could offer basic information about the type of law you will be helping them with, a breakdown of the processes involved and, when possible, timelines or estimated timelines.
• Treat each client as if she is your only client and your business depends on her: This doesn’t mean worshipping the ground she walks on. It means turning off your phone, not checking your email and putting all your attention on the file before you – not the file sitting on your desk upstairs.
• Remember the little details:Take a minute to familiarize yourself with the file or documents before you meet with the client. Try to remember some more personal details about the client as well – his family details, hobbies, or job. Try connecting on a personal level.
• Practice the art of (partial) silence: When a client first comes in to discuss a matter, let the client do the talking, at least at first. Ask appropriate questions to get to the heart of the matter.What exactly does the client need you to do and why?
• Don’t assume the client understands:When you are explaining something, ask the client if she understands what you are talking about. Take it a step further and have her explain it back to you.
• Be up-front about costs: To the best of your ability, lay out how the client will be charged. Is he going to be charged a flat rate? Will you charge by the hour? Do follow-up phone calls “count” towards that hour? How much is the retainer and how will it be replenished? Be open.
• Find out the best way to communicate with the client:Rather than force the client to call you on your schedule, find out if email is a better way of keeping in touch with the client.
• Spell out your return correspondence policy: Let clients know you will always get back to them in a certain time frame, even if it is just to say – “a tad busy now, but will get back to you tomorrow.”
• Provide regular updates: Keep the client informed with what is going on in his file. This is especially important when the file has a long shelf life and there may be long periods of inactivity.
• Acknowledge when you receive new information from the client: Your client needs to know you have that new document in your system and it hasn’t been lost in the mail.

All of the papers from the 2007 Brooklyn Law School symposium on law, science and truth "Symposium: A Cross-Disciplinary Look At Scientific Truth: What's The Law To Do?" as published in (2008) 73 Brooklyn Law Review are are available for downloading in one pdf here.

I recommend them (for whatever that's worth).

Any Canadian lawyer-type reading any of those pieces should also read Mr. Justice Binnie's "Science in the courtroom: the mouse that roared" (2007) 56 UNB LJ 307. The article is available on Carswell/Westlaw and can be found here and here.

He has more to say about science in the court room in his recent "exit" interview. The full interview is on the Globe and Mail site.

DC

The following article by Tim Lemieux is from the latest Fall 2011 issue of LAWPRO Magazine. It looks at communications-related claims at LAWPRO in different areas of law and asks claims counsel how these mistakes can be prevented.

No matter what the area of practice, the number one source of claims at LAWPRO is a breakdown in communication between the lawyer and client. And those numbers are increasing.

Between 2005 and 2010, more than 4,200 communications claims — an average of 711 a year – have been reported to LAWPRO. The total cost of these claims to date is about $150 million – and likely to rise as more recent years’ claims are resolved.

During that same period, the percentage of claims resulting from communication issues has also increased – to 35 per cent in 2010 from 32 per cent in 2005. More concerning is the increase in costs – to 45 per cent of all claims costs in 2010 from 32 per cent in 2005.

What’s ironic about this discussion is that communications claims are potentially easy to prevent. This is a risk management message that we have consistently sent to lawyers through past issues of LAWPRO Magazine, our Managing booklets and at every presentation on claims prevention.

And still the numbers creep up.

So rather that simply repeat the message that “lawyers need to communicate better”, we thought we’d take a different approach and look at how communications claims can arise in particular areas of law.

We asked LAWPRO claims counsel with expertise in the various areas of law to provide insights into the communications mistakes they see in their daily handling of claims files. We hope this approach makes the advice more relevant to makes it easier for you to implement risk management steps in your own practice.

Real estate

Real estate claims make up the largest share of communications claims. Busy, high-volume practices often lead to situations where the lawyer is not taking the time to communicate with the clients properly. Mitchell Goldberg, unit director and counsel and Nadia Dalimonte, claims counsel, both in our Specialty Claims Department, provide some examples of the kinds of claims they see in this area of practice.

Meet the client – yourself – and ask questions

The common thread running through the examples that follow is that many real estate lawyers say they are too busy to communicate directly with clients: They rely on clerks, so the lawyers themselves become removed from the process. “It is always preferable for the lawyer to meet with the clients and review the important documentation in the file with the clients at that time. In the event of a claim,” says Dalimonte, “it’s not usually a strong defence for the lawyer to say to us ‘well, the clerk met with the client.’”

Some lawyers, she adds, take the position that their job is to carry out only the title conveyancing, when what they should have done is take the time to speak to the client to ensure they’ve gathered all the relevant information.

For example, although only one person may come to the lawyer’s office, there could be a joint tenancy on a matrimonial home. LAWPRO has seen a number of claims where the lawyer did not get the consent of the spouse to change the ownership status or encumber the property with a mortgage. Take the time to discuss important information such as the client’s marital status to determine whether the consent of a spouse – or other joint tenant — needs to be obtained, or whether the spouse needs to be sent for independent legal advice (depending on the nature of the transaction).

Another source of claims involves situations in which parents get involved in their children’s real estate dealings – such as the transfer of a parental property to a son or daughter, or the purchase of a home by the child with the parents guaranteeing the mortgage or taking title with the child and actually beoming mortgagors. The parents often later claim the lawyer did not properly communicate the potential consequences to them (e.g. if the children did not keep up the mortgage payments, the lender could come after them) or failed to send them for ILA.

There may be issues of capacity or language barriers preventing the clients from fully understanding the proceedings. Until you sit down and talk to the clients, these kinds of complicating factors might not be apparent.

Use title insurance wisely

Lawyers using title insurance also need to take the time to communicate directly with clients. Often the lawyer fails to ask clients about possible future uses of the property that the client might have in mind, and as a result fails to get a title insurance endorsement that would protect the clients (e.g. they planned to build a pool, but later discovered a subdivision agreement prevents it) .Similarly, lawyers sometimes fail to discuss whether a client wants a survey or a particular search done.

“They just assume title insurance takes care of issues that could arise, so that the lawyer has no documentation in the file to demonstrate that the lawyer discussed what the client did or didn’t want” says Mitch. Failure to have that conversation may constitute negligence, and also may violate the commentary to the Rules of Professional Conduct that addresses informing clients about options to assure title.

Remember the lender client

Lawyers also need to remember that lending institutions are also their clients: We’ve seen claims in which lawyers have failed to communicate material information to the lender client so the lender can make an informed decision on whether to advance mortgage funds. Such details could include the correct purchase price, current ownership, or whether the purchaser is going to reside in the property.

Litigation

Jennifer Ip, unit director and counsel (Primary Professional Liability Claims Department) and Yvonne Diedrick, claims counsel (PPL) provide some insights into how breakdowns in communication with the client can derail litigation or leave the client dissatisfied with the outcome.

Put it in writing

One of the biggest issues in the litigation claims LAWPRO sees is a failure on the part of the lawyer to properly document instructions. Clients may later say they asked the lawyer to do X and it wasn’t done; or the lawyer may have done Y and the client claims he didn’t authorize this course of action. If there is no documentation of the lawyer client/conversations, the claim then turns on credibility, and the experience has been that courts are more likely to believe the client’s recollections (the case is top of mind for the client, but only one of several for the lawyer).

The same failure to document discussions can be seen when advising clients on the terms of settlements and what the client can expect. Clients can be left thinking they will receive more monies out of the settlement than they in fact get. “They may try to claim they were not aware that a portion of the award would flow back to the lawyer in fees” says Ip.

When it comes to motor vehicle cases, some lawyers will handle only the tort action or only the accident benefits claim, not both, but they fail to put this limited retainer into writing. The client then comes back and says the lawyer failed to follow instructions – but by then the limitation period has expired – and now the lawyer faces the prospect of a claim. Even if you have put the limited retainer into writing, make sure the client understands what this means.

Many communication errors result in accusations of an improvident settlement. For instance, an insurer may offer to settle for a lower amount than is really justified by the facts of the case and the lawyer is obliged to present this offer to the client. The client may want to settle, but if the lawyer doesn’t recommend the settlement, this advice should be clearly documented and communicated. Otherwise the client may come back later, perhaps when the money runs out, and accuse the lawyer of not properly explaining the situation and or not making clear that the settlement may have been greater if the matter had been pursued further.

Take the time to explain – and document

During a trial, things can happen quickly. LAWPRO has seen claims in which an offer was communicated verbally mid-trial. The lawyer then quickly explains (or says she explained) the offer to the client. The client rejects the offer and the lawyer’s recommendation to accept it, and goes on to lose the case. The client then sues the lawyer saying “had I properly understood the offer, I would have accepted it.”

On the flip side, it may be the client who chooses to accept an offer to settle for a lower amount – despite the lawyer’s advice to the contrary. No matter how rushed you are or how convincing (and happy) your client appears, take the time to make notes of your conversations with the client and make sure your client fully understands the implications of the decision he or she is making..

Similarly, lawyers should communicate (and document that they have done so) the prospects of winning or losing a case. This is especially so in cases where the client insists on pursuing the case “on principle.” When the client loses, it’s suddenly no longer about the principle. “If the lawyer is of the opinion that the client has a weak case, the client needs to be told so and instructions to proceed to trial, despite the lawyer’s recommendation not to proceed, should be written down,” says Ip.

Communicate clearly – face-to-face if possible

As in all areas of law, lawyers are using email to communicate – resulting in increased misunderstandings. Clients or lawyers read things into emails that aren’t there, miss the meaning of what was said, or read between the lines and make assumptions, says Diedrick. “You can’t replace face to face communication. If geographic distance makes that difficult, pick up the telephone and later document the call in a follow-up letter or email.”

This is particularly important in litigation matters, which can go on for long periods of time and involve strong emotions. There isn’t necessarily the same tradition of a pivotal lawyer-client meeting as often occurs before the closing of a transaction in other areas of the law. Consider when in a long piece of litigation you should be sure to meet with the client, and more, document your discussions.

Corporate law

Anna Reggio, Claims Counsel (PPL), says corporate communication claims often arise from confusion over the breadth of the insured's retainer and who is representing the interest of whom in an environment of fast-paced, and sometimes large dollar, transactions where the niceties of communicating may get overlooked.

Know who your client is – and communicate this clearly

A question which frequently arises is the question of who the lawyer is acting for and whether it is the corporation or one or more of the shareholders. The interest of the corporate entity may be different from that of one or more of the shareholders and therefore, the corporate entity should be separately represented.

Certainly, in any given proposed transaction or agreement, each shareholder's interest may vary from one or more of the other shareholders. Therefore, in fact, the corporate entity and each of the shareholders should really be represented by their own lawyer.

Often, in closely held corporations, the lawyer will meet with all of the directors, officers and shareholders to discuss the terms of a transaction to be entered into by the corporation or the terms of a transaction or agreement amongst the shareholders. A shareholders' agreement, for example, is one of the more common agreements under discussion.

In many cases, the parties are of the view that it is not financially expedient for the corporate entity and each of the shareholders to be separately represented. In other cases, the transaction may be clipping along and the parties are too focused on their negotiations to care about the lawyer's oral caution that they should obtain independent legal advice or independent representation.

Later, a disgruntled party may allege that he or she relied upon the lawyer and may accuse the lawyer of having been in a conflict of interest, preferring the interest of one party over another (particularly where the lawyer has represented the other party or parties in the past) or of failing to consider and advise that party of the implications arising from the particular transaction or agreement. The lawyer may well respond by saying that he or she was not acting for the complaining party, but rather, acting for the corporate entity or, possibly, for another shareholder but if this was never clearly communicated, in writing, the lawyer is faced with a credibility dispute.

The lawyer should write to all principals to clarify and confirm who he or she is acting for. The lawyer should confirm that the other parties will not be provided with any advice and that they should not be relying on the lawyer for that purpose.

Further, the lawyer should tell the other parties or entities to retain independent counsel or obtain independent legal advice, preferably as evidenced by way of a Certificate of ILA, depending upon the circumstances. Otherwise, the lawyer must obtain a signed, written acknowledgement of this advice together with a waiver of independent counsel or ILA.

“There is no shortcut for this,” says Reggio. “The lawyer needs to get written, signed acknowledgements to protect him or herself.” (If the lawyer chooses to proceed to act for more than one party, the lawyer faces the inherent risks of failing to meet the onerous burden of providing the best possible advice to all of the clients in the circumstances. Also, depending on the deductible chosen, the lawyer may also face the obligation of a double deductible under the LAWPRO policy if he or she is subsequently sued, even if a written acknowledgement and waiver was obtained.)

Be clear about the services you are providing

Lawyers should also communicate clearly and in writing to confirm that they are not providing business advice and they are not reviewing financial statements or providing any tax advice, where applicable. Lawyers should specifically advise the client in writing to get advice from tax specialists, accountants or other experts where necessary and applicable.

Family law

Yvonne Bernstein, litigation director and counsel (PPL) with extensive experience in family law claims, talks about the potential for misunderstandings and communication breakdowns in family law.

Using email means you need to be clearer and work harder at good communication
The increased use of emails to replace face-to-face meetings has significant implications in family law where emotions (and tensions) often are high; clients can be difficult, emotional and prone to misunderstanding (and for these reasons some lawyers find the lack of face to face contact a good thing).

While no doubt email is a faster form of communication, the in-person conversation provides visual cues and the discussion is more interactive. The lawyer can judge reactions, and make sure everyone understands. Email promotes a more stilted, incomplete communication, says Bernstein.

In a recent claim a client was informed by email about what was being negotiated and agreed to the settlement; but the client had not been given enough information on a certain part of the settlement. He later sued the lawyer on the grounds that if he’d known how valuable this concession was, he never would have agreed. “The client could have asked,” says Bernstein, “but the on the other hand the lawyer should have been clearer.”

Take the time to explain implications of legal processes
Clients often don’t understand that a settlement is a final settlement. They may have thought maybe they could settle today and re-open the agreement later.

Misunderstandings such as this can stem from the fact that lawyers operate within a framework where certain concepts or rules are understood: “We all know that when you sign a release, that’s it,” says Bernstein. “Lawyers don’t always appreciate that clients don’t have that same frame of reference.” When a claim arises, it is then found that there is no letter from the lawyer to the client confirming the things they discussed, such as the fact that the settlement was final.

With limited retainers and possible unbundling of legal services, there will be more challenges for lawyers to communicate as clearly as possible about what they are retained to do and not retained to do, as well as the potential consequences of what they’re not being retained to do.

“There will be more of a burden on lawyers to hone their communication skills if they want to accept limited scope retainers and hope to get out of that process unscathed,” says Bernstein. This risk is not confined to family law, but family law has a high proportion of litigants who are self-represented and only want to retain a lawyer to do X, but not Y and Z.

Another way in which clients feel they can save money is by negotiating with the other side themselves. At the same time, the lawyers for each side are in communication as well. In situations like this things can get overlooked, or a lawyer can be left out of the loop.

Wills and estates

Cynthia Martin, unit director and counsel (PPL), Deborah Petch, claims counsel (PPL), and Pauline Sheps, claims counsel specialist (PPL) review the kinds of communication errors we see in wills, estates and trusts practice.

Ask questions – many questions

The biggest communication issues take place at the time the will is being drafted. The claim may result from drafting errors, but often it was poor communication that led to the drafting error.

Too many lawyers, says Martin, are not truly listening to the client’s instructions and not probing and questioning the client to uncover facts that may cause problems later.

“It’s not so much the client not providing the information as the lawyers failing to communicate what the lawyers need to know,” says Martin. “For instance, the client says: ‘I want to leave everything to my son.’ Fine, but does she have any other children? What did the prior will say?”

Are the beneficiaries identified correctly? (e.g., there is more than one St John’s Church in the city.) Did the lawyer ask about gift-overs in the event that a beneficiary is not alive at the time the testator dies? When the will drafting is complete lawyers should do a reporting letter to the client so that there will not be confusion in the future about why changes were made, beneficiaries added or removed, and so forth.

LAWPRO has seen in an increase in claims resulting from lawyers failing to ask about client assets when drafting wills. Too many lawyers don’t ask the simple question: “What assets to do you have?” (Given how many people in Ontario now come from other jurisdictions, lawyers should be asking about assets on a worldwide basis.)

It’s equally important to discuss how these assets will be distributed. This issue often arises in the case of second marriages. The clients want to leave everything to their respective children, but often what happens goes something like this: after the husband dies, the wife says that she didn’t understand that the assets would go to his children and not her; or conversely , all the assets are in joint names and – despite the will – at the end nothing is left to go to the children.

“Ask what the assets are, and ask how they are registered,” says Sheps. “Some lawyers tell us they don’t ask ‘because the client will have different assets when they die.’ That’s not a good enough reason not to ask.”

Get clarification given complexity of family structures and dynamics

Lawyers are increasingly likely to be dealing with a variety of family structures other than the traditional nuclear family. When the client uses words such as “married” or “my daughter,” those words may not necessarily mean what the lawyer thinks. The marriage could be common-law, and the daughter could be a step-daughter. To be absolutely sure of the nature of the relationships, ask questions and get clarification.

Talk to your client to understand family dynamics. You may discover information that could improve the advice you provide the client. If you know, for example, that two siblings don’t get along, it may not be wise to appoint them as joint powers of attorney or estate trustees.

“A dysfunctional family can lead to a dysfunctional estate,” says Sheps, who also recommends not agreeing to be an attorney or trustee if you know the family is fighting. “If they are unsatisfied with the management of the estate, they will all blame you”.

State who is doing what

Miscommunications regarding pensions often result in claims. The client may have made designations on their pension, life insurance, RRSP, etc., but a will can revoke those designations. There is often not enough discussion with clients about these designations, and what effect a will can have on them. The clients themselves may not be certain how the designations are arranged, and it may not be clear who was supposed to find out (client or lawyer) and what the consequences are for not making certain.

When dealing with powers of attorney, it is important to communicate to the attorney what his roles and obligations are. Template letters and a checklist are very good tools for this. This protects the lawyer from future accusations that “the lawyer didn’t tell me I couldn’t spend the money this way.”

The administration of an estate also requires clear communication: Keep records of who is responsible for what, in terms of what the lawyer is doing and what trustee is doing. If roles are divided, the work and responsibilities should be spelled out.

“If the lawyer is taking on work normally done by the estate trustee, there has to be a letter setting out clearly who is doing what,” says Petch, who recommends communicating with your trustee client what you’ll charge in legal fees for this work.

“We get a lot of complaints about the mishmash of the lawyer’s fees and executor’s fees. This is particularly true where the lawyer is a co-trustee.”

If you're interested in defamation law you'd do well to read the recently published piece by Bob Tarantino, "Chasing Reputation: The Argument for Differential Treatment of “Public Figures” in Canadian Defamation Law," (2010) 48 Osgoode Hall Law Journal 595 [PDF]. The author, a partner at Heenan Blaikie and a blogger at their Entertainment and Media Law Signal argues for the:

recasting the tort of defamation into two different tracks: one for public figures, who pose the highest risk of abusing the tort, and one for private plaintiffs, whose reputational interest is akin to traditional notions of reputation.

This flows in part from his analysis that appellate courts, and particularly the Supreme Court, have developed a less automatic — more "nuanced" — protection for reputation in the first decade of this century, raising the level of importance accorded to freedom of expression. Tarantine posits that:

Some plaintiffs do not need the tort of defamation to protect a reified reputation that is either not demonstrably damaged by defamatory statements or that is (comparatively) easily rectified by their own power. The complaint is that such plaintiffs in some meaningful sense misuse the tort in order to achieve other goals (such as the quieting of criticism).

As Tarantino says, his proposals are "guided by the need to take account of changing technology," which (in my words) has seen the barriers to public expression reduced to nearly nil. Clearly the courts cannot be asked to chase down every published slight, real or imagined; this article would assist the courts in delineating the notion of "reputation" more precisely and carving out areas less prone to defamation as a trigger-happy tort.

The Office of the Privacy Commissioner of Canada has announced the release of a handbook called PIPEDA and Your Practice — A Privacy Handbook for Lawyers.

According to the release, the handbook "describes best practices in managing the collection, use and disclosure of personal information, responding to requests for access to personal information, and the potential application of PIPEDA. The Handbook covers practical privacy issues that arise in the course of managing a law firm and conducting litigation".

TitlePLUS's Ray Leclair has provided prospective condo buyers with a checklist of things they should know about before deciding to purchase. This list was made available to the public in several real estate publications.

1. Status Certificate: This document should be a condition in any agreement to purchase. It includes important information such as monthly expenses, pending legal actions and other matters, including how much the condo has in reserve funds, which could affect future fees. It also includes the documents governing the condominium: the declaration, by-laws and rules & regulations. These documents govern many aspects of condo life. You should become familiar with them, as they may affect your lifestyle. Can you have pets? When can you use the swimming pool? Can you wash your car in the garage or barbecue on the balcony? Discuss your concerns with your real estate lawyer and ask for advice.
2. Special issues for new developments: For those who purchase pre-construction or in a new building, there is a whole other set of variables. When will the amenities be ready? Will there be phasing? This could mean additional buildings on the same site, and more people using the facilities. What are your interim occupancy rights until the condo is registered? Knowing this can avoid complications when selling or renting your unit.
3. Property rights: As the condo owner, you own the interior space of the dwelling unit inside the condominium. However, the building walls, surrounding land, fences and facilities are usually owned in common with other owners in the complex. Your real estate lawyer can explain what property rights you will have when it comes to your parking space, locker and balcony/patio.
4. Condominium governance: It's typical for a board of directors made up of elected condo unit owners to oversee the workings of the condominium. This governing body has a great deal of influence over how the building is run. If possible, learn as much as you can about the board, including how you can get involved in decisions that will affect your lifestyle and property value.

A useful resource for people interested in buying a home is the TitlePLUS Real Simple Real Estate Guide, available for free at www.titleplus.ca. This guide provides important information on the role of a real estate lawyer and also offers useful calculators, a glossary of terms and a locate-a-lawyer tool.

Cross posted on AvoidAClaim.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawyers and law firms have a complex relationship with journalism and public relations, I'd say: control, reputation, social positioning — power, if you will — all these can intersect in interesting ways for this trio of influence- and word-mongers. The recent brouhaha in Britain over the News of the World and Murdoch's News Corp. phone hacking mess illustrates some of the less happy aspects of this interaction. Normally, we here at Slaw would be more focused on the legalities; but I think it's enlightening, for a change, to look at this scandal from the public relations point of view, and that as seen from a journalist's perspective.

Take a look at a story by Jay Rosen, who teaches journalism at New York University and runs the Pressthink blog. Rosen asks the question of PR folks: Would you risk your firm's reputation by telling News Corp.'s side of the story? Interestingly, he explores this question using Storify, a website that lets you combine bits of microblogging into something more sustained and intelligible, in this case posts on Twitter by people in the PR business, with his set-up and commentary as mortar.

Right away you can see a parallel between PR and legal practice: are there clients your firm would decline because of the impact on its reputation? And during the "conversation" you'll hear echoes of law: "everyone is entitled to have their side of the story told" (really? asks Rosen). Can you work with a client who lies to you? Etc.

As the second oldest profession in the world (perhaps), law sometimes likes to think that it's… unique. And, of course, in some ways it is. But at the same time, it shares a great deal with other professions that seek to influence and… deal with the truth, shall we say. The interchange Rosen captures reminds me, at least, of that fact.

Scribes is an American society whose goals include the creation of an interest in writing about the law, and above all, the promotion of a clear, succinct and forceful style in legal writing.

A few years ago some Bay St law firms subjected their associates to compulsory viewing of videos of interviews of US Supreme court Judges on the subject of persuasive writing. These interviews have now been transcribed and can be accessed in PDF form at Scribes Journal of Legal Writing.

In what the New York Times described as a "trove" of interviews conducted in 2008, eight justices of the US Supreme Court describe how they write their opinions, what they are looking for in legal briefs and the art of legal writing generally. Only one judge, Justice David Souter, declined to participate.

A general comment made by the justices was that while the quality of the briefs was high, they were too long. Often lawyers use up their maximum of 15,000 words unnecessarily.

Such a message from so exalted a source must have ricocheted around the walls of the editorial offices of Scribes sending bells ringing and lights flashing like a winning fruit machine in Vegas.

Founded in 1953 Scribes seeks to "spread the growing scorn for legal writing that is archaic, turgid, obscure and needlessly dull". It gives annual writing awards, publishes a newsletter – The Scrivener - and a journal (in Volume 13 of which the USSC interviews appear) – The Scribes Journal of Legal Writing.

The Scribes website is well worth a visit.

The Scribes Annual Luncheon this year will be held in Toronto on August 6.

With digital publishing coming of age, many publishers are rethinking how they produce and sell their content. I know First Reference is. One of the main challenges we face as publishers is making our content and products accessible.

Experts in the fields of accessibility and publishing from around the world have joined together under the banner of the Enabling Technology Framework. According to the group:

The publishing landscape is becoming much more user-oriented; ensuring your published content is accessible by all your potential readers is more and more important. Today’s readership needs to be able to consume technology in a variety of different ways and publishing’s metamorphosis from a print-dominated into a mixed and inexorably into a digitally-led industry presents an unprecedented opportunity for publishers to extend their products to the widest possible audience.

However, this is easier said than done.

I get the point that accessibility should be an integral component of publishing, what does this really mean? Simply put, content and software are accessible if they can be accessed and used effectively by individuals with disabilities. To achieve this, electronic documents and websites must be accessible in both their content and structure, meaning they should include such things as navigational aids, text that can be read by a screen reader, extra information for those person with low vision, alternate text description for images, form-field descriptions, and a defined document language, among other things.

Creating accessible electronic documents and websites requires a combined effort by content authors and the publishers of the software and tools that authors use. This means:

• Content authors must take advantage of the accessibility enabling features in their software and tools, and keep accessibility in mind throughout their work by defining document structures and adding navigation aids and explanatory information
• Publishers of software and web-based development tools should enable the creation of accessible content, retain and encode both content and structure in ways that suit accessibility, provide useful tools to help optimize documents, and effectively transmit information to other assistive technologies

Software and web-based tools represent important milestones in accessibility. Accessible electronic documents and websites are becoming an integral part of an organization’s Corporate Social Responsibility (CSR), demonstrating an organization's commitment to providing equal opportunities. Inaccessible electronic content and websites can undermine an organization's other CSR efforts. The Enabling Technologies Framework project explains:

People with disabilities are often excluded from various aspects of society, largely due to inaccessible buildings and services. When an organization's website or content is not accessible, it further excludes people with disabilities. When an organization's website and content are accessible, it empowers people with disabilities to participate more fully in society. Providing an accessible website is one way an organization can demonstrate that it strives to meet the access needs of a diverse society.

The Enabling Technologies Framework project is working to make the vague concept of accessibility in publishing more concrete for publishers by releasing the Accessible Publishing: Best Practice Guidelines for Publishers. It is worth a read, and it contains many valuable insights and instructions that content publishers can apply now at little or no cost. And you probably understand by now that “content publisher” can mean anything from traditional print publishing to online news to informal blogging.

Accessible Publishing provides guidance to content authors, editorial and production departments, publishers, IT staff and others on the ways they can improve accessibility in their products. The document also offers help to manage many of the issues and challenges these people may encounter as they strive to make their products more accessible. The guide has been endorsed by the International Publishers Association, The Federation of European Publishers and The International Association of Scientific, Technical and Medical Publishers.

It will be interesting to see who adopts the guidelines and how long it takes for them to spread throughout the print and digital publishing worlds. It will be especially interesting to see how the guidelines affect creative design and layout, since these areas tend to be less bound by restrictions. I’m also curious to know how readers without impairments will react to changes in publishing to improve accessibility. Many accessibility advocates claim that such improvements benefit all readers, but it remains to be seen whether that is in fact true.

At any rate, this guide is a big step forward for accessible publishing. It may only be a stepping stone toward more fully inclusive products, but it is precisely what content publishers need to start.

Kent Law School in the UK has launched the inaugural issue of a new open access journal, feminists@law. This from the journal description on the home page:

feminists@law is a peer-reviewed online journal which aims to publish critical, interdisciplinary, theoretically engaged scholarship that extends feminist debates and analyses relating to law and justice (broadly conceived). It has a particular interest in critical and theoretical approaches and perspectives that draw upon postcolonial, transnational and poststructuralist work. The journal publishes material in a range of print and multimedia formats and in English and other languages. The journal is committed to an international perspective, to the promotion of feminist work in all areas of law and justice, and to making that work widely available through open access publishing.

The contents of Vol. 1, No. 1 fall into three areas:

• Feminism and Open Access, an examination of "a relational approach to copyright in the academy," (this by three York University profs, one of whom, Carys Craig, is a former colleague of mine at Osgoode);
• Reflections on 'Beyond Accommodation,' three articles looking at where feminism has been; and
• eleven shorter pieces gathered under the rubric Current and Future Agendas for Feminist Legal Studies.

This is a thoroughly up-to-date example of a law journal: not only is is open access (Creative Commons Attribution 3 License), but all articles are available in three formats, Word .doc, PDF, and HTML; there's a sidebar, Happenings, that allows for regular updates of interest to scholars; and there are videos of a roundtable discussion of the past, present and future of feminist scholarship. Of course, the journal offers RSS, a Twitter account @feministsatlaw, and a Facebook page as well.

The Wall Street Journal recently featured a fascinating article on how architecture influence how we think. Researchers have found that nearly everything about a room, from the height of its ceilings to the colour of its walls, has a direct impact on the quantity and quality of our thoughts. Not only that, but researchers have found our capacity to recall information, to be creative, and to draw connections between seemingly unrelated concepts is heavily influenced by our surroundings. While the connection between a room's qualities and mood has been established for years, this research represents some of the first quantitative findings on which specific architectural traits contribute to facilitating certain kinds of thinking.

The full article gives some fascinating insights into the importance of the space you think in. A an open-concept law office with high ceilings, big windows, and beautiful views may not only be good for impressing clients, but also for stimulating the mind.

Are you ready to meet the future? Special Libraries Association members have been exploring this question on the Future Ready 365 blog, discussing potential and what it takes to make us as individuals, an association, and the profession as a whole ready for the future. SLA President Cindy Romaine explains that being "future ready" for members, the Association and the profession is supported by four pillars:

• Collaboration to accelerate the availability of useful information
• An adaptable skill set that anticipates and responds to the evolving marketplace
• Alignment with the language and values of the community you serve
• Building a community that connects stakeholders in mutually beneficial relationships

Daily posts on the Future Ready 365 blog have been covering a range of subjects including skills needed to meet future demands, change in attitudes, and how the profession and SLA need to adapt.

For the post on February 22nd, Romaine took the opportunity to interview Guy Kawasaki, high-profile entrepreneur, tech trend watcher and former chief evangelist for Apple who she met at this year's Consumer Electronics Show. I like this quote from Kawasaki:

There’s probably more knowledge than ever, and it’s more accessible than ever but the reinvented research librarian holds the key for using the Internet in the most effective manner. Many, but not all, people know how to use Google and Wikipedia, but Google and Wikipedia do not provide all of human knowledge. Some of that knowledge is locked away in private databases and some of that knowledge is difficult for a novice to find. That’s where research librarians still hold the key. They are the ultimate information curator no matter what hocus, pocus you hear about the “semantic web.”

We are invited to submit our thoughts either as comments to the blog posts or as posts. See details on submitting a blog post. I encourage you to consider submitting a post, even if you are not a member. Mine has gone in and will hopefully make an appearance soon.

Related Slaw posts:

The Crime Writers of canada have produced their 2011 catalogue of Cool Canadian Crime.

If that doesn't supply you with enough mystery, here is a list of 5 easy to find and famously puzzling works from history: Five weird and strange manuscripts.

If that's not your bag, you might enjoy these more eccentric works: 20 Strange and Wonderful Books, and 20 even stranger and more wonderful books.

Last week TechCrunch featured a terrific guest post by Mark Suster about Why Startups Need to Blog (and what to talk about …). In reading Suster's blog post, it occurred to me that many of his recommendations for startups apply equally well to law firms.

The kinds of questions I constantly hear from lawyers about blogging – "what should I blog about?"; "who is my audience?"; "where should I post?"; etc. – are the same kinds of questions many startup company bloggers-to-be ask about blogging. Suster's article provides insights that bloggers from any industry can benefit from.

A few highlights from the article:

1. Why blog? "If you care about accessing customers, reaching an audience, communicating your vision, influencing people in your industry, marketing your services or just plain engaging in a dialog with others in your industry a blog is a great way to achieve this."
2. What should I blog about? "Blog about your industry. Think Mint.com. In their early days they had an enormously effective blog on the topic of personal financial management. They created a reason for their customers to aggregate on their site on a regular basis. They became both a thought leader in the space as well as a beautifully designed product. They created inbound link juice on topics that drove more traffic to their site. Type “personal financial management” into Google. Mint.com is the second result. Smart."
3. Where should I blog? "If you’re a company and if hanging it off of your company website makes sense for the link traffic – go for it. If you’re head of marketing at a company and keeping a more generalized blog (in addition to your company blog) so that you can influence brands & agencies – it can be separate."
4. How do I blog? Get going quickly with a platform like WordPress.com or Squarespace.com. Be authentic. Keep posts between 600-1,000 words. Be consistent about posting. Let people know you're blogging. Use Twitter, Facebook and other social media to distribute your posts.

Give Suster's full article a read – although targeted at startups, the lessons apply equally well to law firms.

Thank CERN for the Internet. One of the topics I read widely about is leadership. My personal interest, along with developing my own leadership skills, is law firm leadership. There is a great selection of writing on law firm managment and leadership here at Slaw and around the web.

In my opinion, it is important to read outside your specific niche. I can't remember now what turned me on to the Leading Geeks blog. It may have been a retweet by Greg Lambert, or a reference from Jay Sheperd, but what ever it was, I quickly plugged in to the RSS feed for this blog.

Leading Geeks, the brain child of Jenn Steele, has a great post today on the individual responsibility for personal happiness in the workplace. I encourage your visits to the blog, now a group effort, written mostly by current or former legal IT folk.

What is your favourite 'beyond the legal' read?

I normally try to avoid posting about items that have been discussed elsewhere but I believe this merits a Slaw post. I'm sure many of have seen what follows in other forums (it was brought to my attention by a colleague) but this causes you to think a bit differently and more of that is good on a Monday morning. Okay maybe it isn't completely different but it takes something you know well and does it differently and makes you wonder about the future of publishing and just what an ebook is or more specifically what an ebook might be. That would be Welcome to Pine Point what it's creators call a "Liquid Book". This one in particular is hosted at the NFB site, which in itself gives pause for thought when thinking about the future of publishing. I'm not sure where this fits into that large puzzle but I think it fits somewhere. Have a look and let your mind wander.

Crime Writers of Canada (tagline: the write kind of crime) has released their latest roundup of Canadian recent and imminent crime fiction.

Here is a link to a Press Release from Los Angeles this afternoon, announcing that Richard Susskind, the controversial (in some circles anyway) author of The End of Lawyers?

Note the importance of the final question-mark.

Integreon’s Client Advisory Board will be composed of managing partners at law firms and general counsel at organizations that Integreon serves. The board will provide Integreon’s clients with an opportunity to share ideas about legal service trends, specify future requirements for Integreon’s services, and identify opportunities for collaboration.

Integreon (according to its website) "applies technology intelligently to legal solutions to automate processes and streamline workflows. In addition to the technologies that we leverage in our e-discovery solutions, we also utilize Tachyon™ to automate project management and streamline workflows for other legal support work". Its clients include seven of the 10 largest global law firms and 32 of the top 50 AmLaw firms.

According to Legal Week, Integreon president of global sales John Croft said:

“A lot of our clients are still thinking through how legal process outsourcing (LPO) can be best applied within their law firm or corporate law department today and what the ‘next generation of LPO’ looks like.

“We therefore felt it would be helpful to set up a client advisory board with an independent chairman who can facilitate this thought process, answer our clients’ questions independently and provide a sounding board for people as they work out what will be best for them.”

It will be interesting to see whether Richard's aligning himself with one market leader will be perceived as colouring his views on other market trends. And even more interesting to see who gets appointed to the Client Advisory Board – interesting to be a cyberfly on that wall.

And a Berkman Centre video from Harvard.

The latest issue of the Yale Law Journal contains a supremely sane and caustic attack by Judge Richard Posner of the Seventh Circuit Court of Appeals on the tendency of the Blue Book (Uniform System of Citation) to proliferate increasing thickets of rules and increasingly trivial sub-rules.

In an earlier essay, Goodbye to the Bluebook, 53 University of Chicago Law Review 1343 (1986), Judge Posner suggested four principles to guide the design of such a system:

“to spare the writer or editor from having to think about citation form,”

“to economize on space and the reader’s time,”

“to provide information to the reader,” and

“to minimize distraction.

Perhaps the most useful part of the article is its reproduction at pages 854 to 857 of a cogent and effective 885 word memo to his law clerks, originally written by Professor Scott Hemphill (when he clerked for Posner), which presents a simple practical set of principles and a cheat sheet of examples.

And here are links to the original 1926 first edition of the Uniform System of Citation in 26 pages (with large font) – contrast that with the current 511 bloated 19th Edition. And to Ronald Standler's Legal Research and Citation Style in USA, which I was unaware of until Judge Posner pointed it out.

And a grateful hat-tip to my partner Subrata Bhattacharjee

There is a wonderful spin-off magazine from the Economist called More Intelligent Life.

Like most other magazines, it does a year-end review of the best books of 2010.

But someone at the magazine didn't quite check the clipart that accompanies that page:

Who actually thought that the Pacific Reporter was worth a plug? And thought that caselaw might be enhanced by snow?

Happy New Year – and a Guid Hogmanay.

There's an interesting conversation over at Edge — not the legal consulting company, but the foundation that holds colloquiums on important issues in science, philosophy, and art. This discussion is entitled Who Gets to Keep Secrets? and the question was posed by Daniel Hillis, a computer scientist, who amplified it thus:

The question of secrecy in the information age is clearly a deep social (and mathematical) problem, and well worth paying attention to.

When does my right to privacy trump your need for security? Should a democratic government be allowed to practice secret diplomacy? Would we rather live in a world with guaranteed privacy or a world in which there are no secrets? If the answer is somewhere in between, how do we draw the line?

As you might imagine, Wikileaks features prominently, as does law: law constituting governments, law delimiting privacy rights, and law shaded into ethics and morality.

Those who responded to Hillis included: the Provost of Georgetown University; the ED of the Electronic Privacy Information Center; the Editor of the Arts section of the Sueddeutsche Zeitung; George Dyson, the science historian; and Clay Shirky, adjunct Prof. at NYU. Hillis replied to many of the comments, and was in some cases replied to.

Here's a book for the lawyer on your Christmas gift list: Representing Justice, by Judith Resnik and Dennis E. Curtis (New Haven: Yale University Press, 2010). From the blurb:

By mapping the remarkable run of the icon of Justice, a woman with scales and sword, and by tracing the development of public spaces dedicated to justice—courthouses—the authors explore the evolution of adjudication into its modern form as well as the intimate relationship between the courts and democracy.

From the review in the New York Times, we learn:

Lady Justice’s familiar blindfold did not become an accessory until well into the 17th century. And even then it was uncommon because of the profoundly negative connotations blindfolds carried for medieval and Renaissance audiences, who viewed them as emblems not of impartiality but of deception…

Interested as I am in the authors' views on "threats to the modern judiciary," I think I'd be even keener to follow their pursuit of the images of Themis, Dike, "from the statue at the Supreme Court of Canada in Ottawa to one presiding over a constitutional court in Azerbaijan."

Don't know about the Azerbaijani justice, but, as you see from the image here, the Canadian one has her eyes wide open.

Although my copy of the new Bullen & Leake & Jacob's Canadian Precedents of Pleadings (Carswell, 2010, $299 CDN) arrived earlier this Fall, I am only now taking the time to review it in detail.

The Canadian version of the British classic litigation precedents title comes in a 612-page bound monograph. It is divided into different parts, by topic, with each part edited by a leading subject expert:

Part A: Class Actions (John A. Campion/Sarah J. Armstrong)
Part B: Construction Claims (Duncan Glaholt)
Part C: Defamation (Howard WInkler)
Part D: Employment Law – Wrongful Dismissal (Stuart Rudner/Erik Marshall)
Part E: Equitable Remedies (Harvin Pitch/Marvin Huberman/Mark Gannage)
Part F: Intellectual Property (Ron Dimock et al.)
Part G: Judicial Review (David Phillip Jones/Anne De Villars)
Part H: Personal Injury (Christine Pratt/Lindsey Miller/Randal S. Carlson)
Part I: Privacy (Kris Klein)
Part J: Professional Negligence (Christine J Pratt et al)
Part K: Surety Bonds (R. Bruce Reynolds)

A Foreword by the Honourable Frank Iacobucci, CC, QC, introduces the text. There is also a Table of Cases that contains (on rough count) around 400 cases. A CD containing the precedents comes with the book but has the typical, restrictive licensing conditions that one often sees in such situations. And although the book has an index, it largely mimics the Table of Contents and does not provide much value-add in the way of additional entry points into the content. For example, if I were interested in pleading limitation periods, the Index is not much help (although I was able to search on the CD by keyword for limitation period information).

The strength of the book, in my opinion, is the subject expertise brought by the editors, along with the Commentary at the start of each Part or topic. For example, in "Part B: Construction Claims", Duncan Glaholt provides 7 pages of commentary, covering such topics as "Parties and Forms of Contract", "Extra Work, Changed work, Defective Work" and "Insurance." The Commentary is a nice "value-add" to put the precedents in context and alert the reader to leading cases or legislation or other drafting tips. This Commentary is then followed by Precedents, which for this topic, includes 13 precedents, ranging from sample Statements of Claims and other pleadings relating to construction claims.

My biggest concern for the title is the print/CD format. It has been years since I last used a Folio-based CD. For me to use this CD at my office, I of course first had to have someone from the IT Department install it for me, which is sufficient disincentive for any lawyer needing a precedent in a hurry. I therefore invite Carswell to comment on when they will make this content available online (the full-text of the commentary and precedents for the UK title is available on Westlaw Canada as part of the "International Comprehensive" subscription). In addition to containing the text of the precedents in the book, the CD also contains full-text judgments cited in the Table of Cases.

My other comment is the lack of a general editor. Although the Foreword by the Honourable Frank Iacobucci is nice, I would have liked to have heard from a general editor discussing the philosophy of the text, its influence by the UK text and the plans for the future – are additional topics going to be covered? How often will it be updated? (or will it be updated at all?).

There are several competing products for litigation precedents, some of which fall within the Thomson Reuters "reach" already:

• O'Brien's Encyclopedia of Forms – Court Forms (Canada Law Book)
• Williston & Rolls Court Forms (LexisNexis Canada)
• BC Court Forms (LexisNexis Canada)
• Litigator (Westlaw Canada)

All in all, I look forward to using this title for litigation precedents and think it is a welcome addition to the Canadian legal literature.

Thanks to our neighbour, Mary Saulig of Goodmans for lending me her copy of an old acquaintance, Benjamin on the Sale of Goods. But this post isn't about presumptions of delivery or FOB contracts. It's about one of the most remarkable stories of a legal author I've heard.

Let's start at the Cimetière du Père Lachaise‎ in the 20th arrondissement, though the website doesn't list this grave, which has this inscription on the tombstone:

Judah Philip Benjamin, Born St. Thomas West Indies August 6,1811, Died in Paris May 6,1884, United States Senator from Louisiana, Attorney General, Secretary of War and Secretary of State of the Confederate States, of America, Queen’s Counsel, London

This doesn't sound like an author on sales law, but bear with me. The lawyer we're discussing was

* The first Jewish Cabinet member in a North American government
* The first Jewish lawyer to be nominated to the US Supreme Court
* The most successful Jewish politician in American history
* US Senator
* Attorney General, February 25 to September 17, 1861;
* Secretary of War, September 17, 1861, to March 23, 1862;
* Secretary of State, March 18, 1862, until the end of the Civil War.
* Described as The Brains of the Conspiracy or The Confederate Kissinger
* Journalist
* Queen’s Counsel
* Bencher of Lincoln’s Inn

At the front of the new edition of Benjamin is an essay by the New Zealand scholar, Leonard S. Sealy, Professor of Corporate and Commercial Law at Cambridge, that tells the remarkable story of the original author of Benjamin, Judah P. Benjamin. This account is drawn from it, and The Times obituary from the 9th of May, 1884.

Judah Philip Benjamin's English parents set out in 1811 for New Orleans. Before reaching the Gulf of Mexico they learned that the Mississippi was blockaded by a British fleet, although war had not yet been officially declared. The ship put into St. Croix, in the Virgin Islands, then British, next Danish and now USVI. Here Judah Benjamin was born and spent the first four years of his life.

He attended Yale College from the age of 14, but left three years later without taking a degree. He joined a lawyer’s office in New Orleans in 1832, studied law, and at night compiled a digest of the reported cases in the local court. Later with his friend Thomas Slidell he published the first systematic collection of the law of Louisiana, called a "Digest of the Reported Decisions of the Superior Court of the late Territory of Orleans, and of the Supreme Court of the State of Louisiana." The Digest covered Spanish Law as well as the French Civil Code. Later in his career before the Privy Council it was said;

There was no man in England at the time who possessed his encyclopaedic knowledge of Comparative Law.

Benjamin was already too busy as a litigator to remain a text-writer. “His clear, silvery voice was heard, and his figure, short but strong, on which was set a resolute, square face, animated by piercing eyes beaming with intelligence, was seen constantly in the courts”. He had also thrown himself into politics, became a Whig, and when that party collapsed joined the Democrats. New Orleans was the centre of the cotton trade, and Benjamin became the leading lawyer serving the industry.

From 1842 to 1844, he sat in the Louisiana State Legislature at Baton Rouge. He was known as a sugar plantation owner and as an active promoter of railroads in the southeast of the United States. He was elected to the United States Senate in 1852 and again in 1857. He married Natalie St. Martin, although the union was not very happy and she spent most of her life in Paris.

He was offered two major appointments by President Pierce in 1853. He turned down both a seat on the United States Supreme Court and the ambassdorship to Spain. In the civil war, he stood with the southern states serving both as attorney general and secretary of war to Jefferson Davis, the Confederate leader. Upon the surrender of General Lee, his property was declared confiscated and a warrant for his arrest was issued.

He escaped through the backroads, eventually taking ship on an open boat to the Bahamas and to Havana. In taking ship to England, the sponge boat that he initially took sank and he was picked up by an English war ship and taken to St. Thomas. The second ship that he took to England caught fire, his effects were destroyed and he arrived in England almost penniless.

At the age of 55, he was admitted as a student in Lincoln's Inn on January 13, 1866, serving as a pupil to Charles Pollock. In London, his early letters reveal extraordinary contacts for someone who was technically a barrister-pupil:

"I have been treated with great kindness and distinction and have been called upon by Lord Campbell and Sir James Ferguson, the former a peer and the latter of the House of Commons… Mr. Disraeli also wrote to a friend of mine, expressing the desire of being useful to me when he should arrive in town, and I have been promised a dinner at which I am to be introduced to Gladstone and Tennyson as soon as the season opens here."

That June he was admitted to the Bar. His briefs were slow in coming, and so he embarked on writing the book later known as, “A Treatise on the Law of Sale of Personal Property With Reference to the American Decisions to the French Code and Civil Law” or more simply “Benjamin on Sale.”

Benjamin, J. P. (Judah Philip), 1811-1884.
A treatise on the law of sale of personal property: with references to the American decisions and to the French code and civil law.
London: H. Sweet; Washington, D.C.: W.H. & O.H. Morrison. 1868
xxiv, 715 p.; 26 cm.

"Benjamin on Sale" was, as he explained in his preface, an attempt to develop the principles applicable to all branches of the subject, while following "Blackburn on Sale" as a model for guidance in the treatment of such topics as are embraced in the work. The book commanded immediate attention. It was not a crude collection of decisions, as such publications too often are. It was a reasoned and orderly presentation of the law, a discussion of its principles, accompanied by illustrations from the best of the reported cases, and a merciless rejection of those which were repugnant to general rules. It is said that Baron Martin would never take his seat without this invaluable treatise of the commercial lawyer beside him on the bench.

He took silk six years after being called to the Bar, and was the most successful barrister of his time. The Privy Council was his favourite tribunal; his wide acquaintance with foreign systems of law qualified him in an eminent degree to deal with the cases from the colonies which came before the Judicial Committee. His great faculty was that of argumentative statement. He would so put his case, without in the least departing from candour, that it seemed impossible to give judgment except in one way.

From a Canadian perspective, a heresy abroad forty years accused him of smuggling confederate ideas into the early decisions of the Privy Council decisions on the British North America Act, 1867. A review of his cases scotched the view – see C. O. Johnson, 'Did Judah P. Benjamin Plant the "States Rights" Doctrine in the Interpretation of the British North America Act?' 45 Can. Bar Rev. 454, since he appeared both for Ottawa and the Provinces with divided success on each side.

When he retired in 1883, a farewell banquet was held at the Inner Temple hall. It was said at his retirement dinner:

From the first days of his coming he was one of us. We had been taught by the same teachers, Coke and Blackstone; Kent and Story had been, or at least ought to have been, our common guides, and it may be that the broad view of jurisprudence which Mr Benjamin ever displayed taught us to know that it was not from English juries alone that a true exposition of our law was to be gathered.

He moved, ill, to Paris. His health declined when he was injured jumping off a tram and he died in Paris on May 6, 1884 from a heart attack brought on by diabetes.

Finding the story takes us to a variety of sources. Research for a biography was not easy. Here is his memorial house built in 1842. Here is a great biographical article; the Sealy piece doesn't seem to be available electronically.

And a video on Benjamin's career.

And he is buried in Père Lachaise.

As was said in a recent glowing tribute to Judge C.G. Weeramantry, Lord Diplock said, "Judges make law in bits and pieces; Authors write entire texts and make law out of whole cloth".

Remember that when you take it off the shelf.

It seems appropriate today, Remembrance Day, for a law blog to reflect for a moment on the laws of war. These seemingly prime examples of a contradiction in terms have taken a beating in recent years. The Economist, in an article entitled, "Unleashing the laws of war" published last year, gave a sad summary of fate in practice of these peculiar norms in an era of insurgencies, terrorism, ethnic violence, and superpower techno-war.

Yet much of the world continues to expand and refine the laws of war. I'm speaking now of the Hague and Geneva conventions, those legal limits to the conduct of war (jus in bello) — there are also legal justifications for engaging in war (jus ad bellum), something else again. The two Hague Conferences (1899 and 1907) and the various Geneva Conventions and Protocols (1864 to 2005) comprise something like 30 documents (most of which can be had via Yale's Avalon Project in the Laws of War section). Even the official titles of some of these documents are enough to inspire a shudder of disgust:

• Hague IV – Prohibiting Launching of Projectiles and Explosives from Balloons : July 29, 1899 …
• Declaration II – on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases; July 29, 1899 …
• Declaration III – on the Use of Bullets Which Expand or Flatten Easily in the Human Body; July 29, 1899 …
• 1928 – Geneva Protocol for the Prohibition of the Use in War of Asphyxiating Gas, and for Bacteriological Methods of Warfare; February 8

When today we hear about the applicability or a violation of "the Geneva Convention," it's the four conventions of 1949 and the six subsequent protocols and annexes that are meant. The International Committee of the Red Cross website has the text of these along with commentary on each. These relate, among other things, to:

• "the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" and "at Sea" [1949],
• "the Treatment of Prisoners of War" [1949],
• "the Protection of Civilian Persons in Time of War" [1949],
• "the Protection of Victims of International Armed Conflicts" [1977], and
• "the Protection of Victims of Non-International Armed Conflicts" [2005].

One source of concern is the fact that although there are 194 state parties to the original 1949 convention, there are only 165 to the 1977 Protocol and 53 to the 2005 Protocol. Though the United States is a party to the 2005 Protocol, it is not a party to the more important 1977 Protocol, though it is a signatory (along with Iran, Pakistan, and Morocco). Canada is a party to both of these protocols.

It might be a fruitful exercise today if we all read the text of just one of these documents, not as lawyers, perhaps, seeking out ambiguities and arguments, but simply as citizens of the world, seeking ever more humane conduct, even during war.

A number of new titles have caught my eye as useful additions or updates to Canadian legal literature.

In no particular order:

• Bullen & Leake & Jacob's Canadian Precedents of Pleadings + CD (Carswell): This new title is a Canadian version of the UK classic litigation precedent service, now in its 16th edition from Sweet & Maxwell. In the absence of a Canadian edition, many lawyers here would consult the UK title. However, over time, the UK title increasingly referenced UK legislation, which made the UK service less useful. I have not seen the new Canadian version yet but look forward to using it. However, my request of Carswell is this: no more CD-ROMs! No one wants CD-ROMs. Make it available online. Unclear to me is whether Carswell would make this available on Westlaw Canada as part of its Litigator service (or otherwise). Competing products/content include Williston & Rolls Court Forms and McLachlin & Taylor British Columbia Court Forms, 2d ed from LexisNexis Canada and the O'Brien's Ontario-Court Forms from Canada Law Book.

• Aviation Liability Law (LexisNexis Canada): This new loose-leaf by Paul S. Dempsey, Director of the Institute and Centre of Air and Space Law at McGill University, should provide good coverage for a difficult-to-research topic that includes aspects of international law, product liability law, negligence law and conflicts of law.

• Canadian Trademark Law (LexisNexis Canada): I have found the scholarship of Professor Teresa Scassa to be useful in some of the research I do so am looking forward to her new treatise on trademark law (shouldn't that be "trade-mark" law (with a hyphen) since the Act uses a hyphen?).

• Canadian Law of Competitive Bidding and Procurement (Canada Law Book): This title should prove popular with those lawyers involved on large construction or P3 (public-private-partnerships) projects. The recent Supreme Court of Canada decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways), 2010 SCC 4 is an example of bidding situations that can raise difficult questions.

• Religious Institutions and the Law in Canada, 3d ed (Irwin Law): Professor Ogilvie has updated her 2003 text that provides an excellent overview of the fairly discrete topic of religion and the law.

• Lawyer's Weekly Digital Edition (LexisNexis Canada): It appears that LexisNexis Canada is more formally promoting the digital subscription version of its weekly newspaper. Although it will continue to be published in print, one wonders to what extent lawyers will be willing to give up the comfort of the print version for a digital version. I don't miss the print version of the Ontario Reports so am looking forward to experimenting with receiving the digital subscription version. Less clear is the extent to how Carswell will market The Law Times – the main rival newspaper – that Carswell acquired when it took over Canada Law Book. Until now, The Lawyer's Weekly had the advantage of having an online archival version on Quicklaw (from November 1990 to current). It would be nice if Carswell would make archival content of The Law Times available as well.
   

Take a look at the ♀IFLS site. The Institute for Feminist Legal Studies at Osgoode Hall Law School has been running a blog since the beginning of summer. All, or nearly all, posts are by the Director of the institute, Professor Sonia Lawrence, and they range across a wide spectrum of kinds — as should be the case in a good, general topic blog.

For example, the latest post is about a book by Professor John Kang called "The Man Question", there's a post about the state of feminism, a post about the recent court decision striking down laws concerning prostitution, and a post rounding up commentary about the plight of Justice Douglas.

I've one or two minor technical suggestions: the theme the blog is using buries the name of the poster and the date of the post in tiny and faint type at the bottom of the post: better if it were more prominent. And there's a bit of confusion on the site as to what is the blog and what is more general information about the Institute. But this is very much a blog worth following (RSS feed — no Twitter account yet).

As it did a number of years ago with his earlier book, In the Public Interest, Irwin Law has just released a new book of essays edited by Michael Geist in both print and in PDF. And, as before, the version available online is offered under a Creative Commons license.

From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda is a book of 20 essays by Canadian scholars that tries to move the current copyright debate "toward an informed analysis of Bill C-32 and the future development of Canadian copyright law." Bill C-32, as readers will likely know, is the draft legislation put forward by the government to reform copyright law.

Many, if not most, of the references within the PDF versions are hotlinked to the online sources, a really pleasing development.

Again Irwin Law is to be congratulated for making good use of available IT and for recognizing that there's a relationship in the current market, however paradoxical-seeming, between giving away and good business.

The table of contents is set out after the jump and, of course, on Irwin's site, where there it is linked to the PDFs.

CONTENTS

Introduction, Michael Geist

CONTEXT

1. Copyright: Characteristics of Canadian Reform, Sara Bannerman
2. North American Digital Copyright, Regional Governance, and the Potential for Variation, Blayne Haggart
3. History in the Balance: Copyright and Access to Knowledge, Myra Tawfik
4. Fair Dealing at a Crossroads, Meera Nair
5. The Art of Selling Chocolate: Remarks on Copyright’s Domain, Abraham Drassinower
6. Réforme du droit d’auteur et interprétation judiciaire, Mistrale Goudreau

TECHNOLOGY

7. Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32,Carys Craig
8. The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements, Michael Geist
9. Digital Locks and the Automation of Virtue, Ian Kerr
10. The Protection of Rights Management Information: Modernization or Cup Half Full?, Mark Perry
11. How Virtue Ethics Might Help Erase C-32’s Conceptual Incoherence, David Lametti
12. "Modernizing" ISP Copyright Liability, Gregory R. Hagen

CREATIVITY

13. Towards a Right to Engage in the Fair Transformative Use of Copyright‑Protected Expression, Graham Reynolds
14. An “Independent” View of Bill C-32’s Copyright Reform, Tina Piper
15. User-Generated Content and Music File-Sharing: A Look at Some of the More Interesting Aspects of Bill C-32, Daniel Gervais
16. Culture Matters: Why Canada’s Proposed Amendments to its Copyright Law Should Revisit Moral Rights, Mira T. Sundara Rajan

EDUCATION

17. Copyright, Collectives, and Contracts: New Math for Educational Institutions and Libraries, Margaret Ann Wilkinson
18. Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing, Samuel E. Trosow

ACCESS

19. Copyright Reform and Fact-Based Works, Teresa Scassa
20. Enabling Access and Reuse of Public Sector Information in Canada: Crown Commons Licenses, Copyright, and Public Sector Information, Elizabeth F. Judge

I've been distracted today by a book that arrived in the morning mail: Frederick Vaughan, Viscount Haldane: 'The Wicked Step-father of the Canadian Constitution' (Toronto: Osgoode Society for Canadian Legal History / University of Toronto Press, 2010)(LAC Amicus no. 38031823)(UTP pid no. 2758). For those not familiar with the name, this is from pages xv and xvi of the introduction:

It is fair to say that no jurist in our history has received so much learned abuse as Viscount Haldane of Cloan. Twenty years after his death, he received a scholarly tongue-lashing from the late chief justice Bora Laskin, who, at the time of his writing, was Canada's leading constitutional scholar. Laskin criticized Haldane for confining the 'Peace, Order and good Government' clause of the constitution of 1867 to times of national emergency. The criticisms of Haldane's work on the Judicial Committee have continued to run deep throughout the literature and lingered for decades. When Laskin was appointed to the Supreme Court of Canada in March 1970, Frank Scott, an old friend of many years and at the time dean of law at McGill, wrote to the new judge and said that his appointment was the 'best news since [he learned of] the death of Lord Haldane.' Since Haldane had died in 1928, forty-two years before Laskin's appointment, Scott, clearly, had waited a long time for good news. In his response to Scott's congratulatory note, Laskin reminded him that 'Haldane's legacy need not imprison Canadians forever.'

I suppose we should wait and see how Canada turns out before we jump to any conclusions. Meanwhile, it would be an interesting exercise to try to compile a list of the most polarizing figures in Canadian constitutional history. Lord Durham, Pierre Trudeau, Pitt the Elder. Haldane would surely find a place in most such lists.

This won't be a full book review but, for what it's worth, my first impression is that this is a well-researched, well-documented contribution to the literature on Haldane. The work that Vaughan has done on Hegel's influence on Haldane's thought is particularly original and enlightening. No, my task today is just to give Vaughan one of those inconsequential, but annoying, Damn.-How-did-I-miss-that? moments. On pages 56 to 58, Vaughan tells the story, taken from some of Haldane's manuscript 'Memories' of 1917, of one of the first cases in which Haldane assisted Horace Davey. This was Reed v. Quebec (Attorney General) (1884), 10 App.Cas. 141 (Justis), [1884] J.C.J. No. 1, 1884 CarswellQue 11. On page 58, Vaughan writes:

As he was enjoying the afterglow of his first major court victory in the privacy of his garret, who should climb the narrow staircase leading to his chambers but the venerable Freshfields solicitor Mr John Wiseman himself. 'He said that the partners had read the shorthand note of the brief argument at the Privy Council and now sent me a brief for the Province of Ontario in a great case … This particular brief was marked 150 guineas, and it introduced me to many Canadian cases over here.' Unfortunately, there is no record in the law reports of Richard Haldane conducting an Ontario case before the Judicial Committee during these early years at the bar.

The case Haldane was thinking of can't be found in the law reports, but it was a big case all the same. It was the Ontario-Manitoba boundary reference. A verbatim transcript of the proceedings in the Privy Council (argued July 15-24, 1884) was published by the Ontario Legislature in the Sessional Papers, 1889, 6th Legislature, 3rd Session, Vol. 21, Pt. 6, No. 60 (archives.org), and later reprinted in John P. MacDonell, ed., The Ontario Boundary Controversy: Legal and Constitutional, Political and Historical (Toronto: Carswell, 1896)(archives.org). We see here that the Ontario team consisted of Mowat, Scoble (obituary in The Times, Wednesday, Jan 19, 1916, page 4), Mills, and Haldane. The only other reference in the proceedings to Haldane, found here, was in the following exchange:

     Mr. MOWAT–As the case is a very important one, I wish to ask whether your Lordships would allow Mr. Haldane, who is with me, to make a few observations upon this point?

     The LORD CHANCELLOR–Three counsel?

     Mr. MOWAT–Of course it would be a matter of grace and favour if he is heard.

     The LORD CHANCELLOR–We cannot make a precedent of hearing three counsel. I have no doubt Mr. Haldane would give us useful and great assistance, but it would be a dangerous precedent.

Nothing very important in this, really, but it answers the question whether Haldane had just imagined being involved in such a case.

Yale Law School's Lillian Goldman Library has an exhibition up entitled "Superheroes in Court! Lawyers, Law and Comic Books." Some details about the curator and the exhibition are here. There's a humorous description of the exhibit at the NYT. Another NYT notice of the event contains this nice description of the personality behind the event:

The exhibition is organized by Mark S. Zaid, a comic book collector and Washington lawyer who often represents employees of the Central Intelligence Agency, the Defense Intelligence Agency and the National Security Agency. On his Web site, Mr. Zaid writes, “Many of my clients epitomize the legendary and fictional James Bond. Thus, it is fitting that I collect comic titles and stories that exemplify their work.”

Via LIS News

We all know that editing a Wikipedia entry is fairly straightforward – and that the Wikiguardians keep a vigilant eye over entries and edits that stray from the norms of objectivity and verifiability.

So the announcement that the Correctional Service's internal operations arm is investigating an edit made to the Wikipedia entry on Canada's Official Languages Act, which appears to have been made from a government computer connected to the Corrections Canada server at the department's offices on Laurier Street in Ottawa, is arousing the interest of the mainstream media. Denis Coderre appears to have noticed the edit a week ago and brought it to the department's attention.

That online edit could result in the suspension or dismissal, and it may even be a crime if the comment were considered to amount to hate propaganda.

“Behaviour of this nature is unacceptable and will not be tolerated,” Public Safety Minister Vic Toews said in a statement Wednesday. “My office has raised its concerns with the Correctional Service of Canada, who are investigating its origin and will follow up with appropriate action.”

The department says there is a definite way to trace the suspicious activity to a particular employee’s computer, but it may take some time to complete the investigation.

“Obviously we take this issue very seriously,” said Christelle Chartrand, a spokesperson with the Correctional Service of Canada.

Here is the edited page:

There's a great book by Andrew Lih, called the Wikipedia Revolution on the culture of Wikipedia which largely explains the process and the dialectic of reconciling controversial edits to the encyclopaedia.

We've posted before about the work that the Canadian Bar Association has been doing on conflicts of interest and the development of tools for the profession to manage conflicts of interest. Two Slawers were closely involved, here and here, with a fine italic hand evident.

Today's Lawyers' Weekly front page reports on the CBA's response to a report of an Advisory Committee to the Federation of Law Societies of Canada. The Advisory Committee had released a report in June which had departed radically from the analysis of the CBA Task Force on the key issue of current client conflicts. The Advisory Committee's analysis is here, and the CBA response is published here.

The issues are subtle but vitally important. Canada is diverging from the rest of the Commonwealth in the area of conflicts – see the work of Charles Hollander – and even the Americans are reconsidering their model rules in this area. The Canadian market for legal services is sufficiently tight in certain communities and sectors, that adoption of inflexible rules has implications for access to justice.

At this point, the members of the Federation will discuss the issue at a meeting next month, and then the initiative passes to the law societies in the provinces and territories, who will be mulling over what rule would be best in the interests of the public, clients and the profession.

The CBA response has the following executive summary:

• The CBA supports the harmonization of Codes of Professional Conduct across Canada. The CBA and the Advisory Committee on Conflicts of Interest share much common ground but we disagree on an issue of profound importance.
• The CBA recognizes the importance – and the difficulty – of the issues at stake in conflicts of interest. It is important for the public interest in the administration of justice and the interests of the legal profession across Canada that appropriately high professional standards be maintained.
• The CBA is concerned that a rule not be adopted that undermines the public interest by its over-breadth and negative impact on both choice of and access to counsel. Just as courts must avoid inflexible and immutable standards, so should the law societies.
• The central issue raised by the Final Report of the Advisory Committee is whether a new rule of professional conduct should be adopted which would always require current client consent even if there is no real or no substantial risk of impairment of client representation. Also at issue is whether a new rule of professional conduct should be created which relies on an interpretation of the common law that is not yet settled.
• The CBA is unable to support the Advisory Committee’s recommendation on current client conflicts for the reasons set out in this response. There are real and serious difficulties, for clients and lawyers alike, with the rule proposed by the Advisory Committee.
• We urge the Federation to engage in further consideration and consultation with a view to developing the best rule in the public interest.
• If further consideration and consultation is not possible, it would be preferable to allow the common law to continue to evolve, and not codify one interpretation of the current law into an even more inflexible rule of professional conduct.
• We also encourage the Federation to modify conflict rules that discourage the provision of pro bono legal services.
• The Advisory Committee’s recommendation to permit concurrent representation of two or more clients with competing interests requires greater elaboration to develop appropriate limits and safeguards.
• We recommend modifying Commentary 2.04(2), which appears to require all uninvolved lawyers in a firm to disclose personal interests in every new matter which a firm takes on.
• We propose a number of other drafting changes.

The Federation's Advisory Committee's introduction summarizes its thinking:

The Committee focused its work on the significant differences between the FLSC’s draft Model Code conflicts rule and the Report of the CBA Task Force. In doing so, four key differences were identified:

* The definition of client
* The definition of conflict of interest
* The rule related to acting against current clients
* The rule related to acting against former clients

The Committee was very cognizant of the fact that it was mandated to examine ethical rules for a Code of Professional Conduct for lawyers. The Committee was charged with advising and reporting to Council of the Federation, whose vision is ―acting in the public interest by strengthening Canada’s system of governance of an independent legal profession, reinforcing public confidence in it and making it a leading example for justice systems around the world.‖ The Committee recognized the time and effort put into the CBA Task Force work and its efforts to come up with rules and tools that would be of practical assistance to members of the legal profession. As the CBA Task Force recognized in their report, it is, however, the role of law societies to regulate the profession and to set standards for professional conduct. The perspectives of lawyers and firms were important in our deliberations, but the public interest mandate of law societies was foremost in our final considerations.

The Committee was also guided by the fact that while the jurisdiction and responsibility of law societies to set rules governing professional conduct is undisputed, the courts are not bound to accept and apply these rules. Adoption of an approach to regulating conflicts of interest that diverges significantly from the Supreme Court’s bright line test and interpretation of fiduciary duties might lead to lawyers being removed as counsel by a court even though they have complied with the rules set by law societies. In our view, this would place lawyers in an untenable situation.

We believe that the approach we have taken, a clarification of the important duty of loyalty, reflects the reality of the practice of law while at the same time protecting the public interest. Ethical rules will not encompass all of the issues the Courts have considered in the context of conflicts litigation, but the ethical rules are a crucial means by which law societies protect the public interest and provide guidance to lawyers. Consistency between jurisprudence touching on lawyer’s ethical duties and professional rules of conduct set by those who regulate lawyers in the public interest is important.

What Slaw talks about, the world talks about tomorrow. Well not quite. No illusions about our reach.

So we'll just put it down to coincidence or the zeitgeist that John Gregory's mention of Henry VIII Clauses (he initially undervalued the monarch at a mere VII) here triggered global interest. But a few days later, the English legal press revealed that the Lord Chief Justice spoke on just this subject.

Lord Judge, who as Lord Chief Justice is head of the English judiciary, was speaking at the annual Lord Mayor's dinner for the judiciary, the day before John Gregory's comment; his speech can be read here.

Let's start with a fairy story:

A FAIRY STORY
“Gather around, children, and listen to this Grimm fairytale:
Once upon a time, a very long time ago, there lived a very wicked king – and he was a king with a capital "K”. The name of this king was King Henry VIII. He was a very large man,… we also had it on good authority that he ate very large meals,… he certainly had a large number of wives, admittedly most of them only for a short period of time. He also decided to have very large powers to make laws, and so it came to pass that this large King ensured that there was an Act. And if this very large King hadn’t got his Act, probably someone would have got an axe. This Act was called the Statute of Sewers. That is not sewers as in Suez Canal, because this was long ago in 1531. The Statute of Sewers really was a stinker. As the Donoughmore Committee said, “The Statute delegates legislative powers, taxing powers and judicial powers.”
Ever since then, those good fairy godmothers, Parliament and scrutiny committees, have been trying to undo that kind of excessive grant of power. And but for those Parliamentary scrutiny committees and the courts, we would have all lived very unhappily ever after. Even today there are still some “Henry VIII clauses”, so we all remain relatively miserable.”
Professor Douglas Whalan, Third Commonwealth Conference of Delegated Legislation Committees, Westminster, 1989

The thrust of Judge Judge's speech was his concern at the proliferation of "Henry VIII" clauses, the proliferation of which had "shocked" him. Henry VIII's 1539 Statute of Proclamations gave the King’s proclamations the same juridical force as Acts of Parliament. Lord Judge raised the comparison a series of Acts passed recently by Westminster which gave Government licence to make regulations that overrode legislation.

Henry VIII clauses

He singled out the Banking (Special Provisions) Act 2008, which empowers the Treasury to disregard any other relevant statute bearing on the provisions of the 2008 Act or indeed any legal rule. Similar powers have also been granted by section 51 of the Constitutional Reform and Governance Act 2010.

But my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses. Henry VIII was a dangerous tyrant. The Reformation Parliament made him Supreme Head of the Church, the representative of the Almighty on earth – hardly an encouragement to humility: it altered the succession at his will: it changed the religion backwards and forwards, at his will: they were a malleable manageable lot. And there is a public belief that the Statute of Proclamations of 1539 was the ultimate in supineness. The Act itself was repealed within less than 10 years, immediately after his death in 1547. But it had allowed the King’s proclamations to have the same force as Acts of Parliament. That is a Henry VIII clause. It is perhaps worth emphasising, however, that this Act, and the supine Reformation Parliament was not persuaded to agree that proclamations alone could prejudice any inheritance, office, liberty, goods chattels or life. It was expressly subject to those limitations.

He said:

I am, I suspect, not the only member of the judiciary who is troubled by the extent of the powers granted to council officials to enter people’s homes without a warrant. Or the way in which apparently sensible powers – directed to the prevention of terrorism, appear on occasions to be used to control activities which by no stretch of the imagination, have anything to do with terrorism. But my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses.

Having tried to investigate how these powers had in fact been used, he found that there had been at least 120 Henry VIII clauses in the last Parliamentary session. This "astonished" him.

He went on to argue that powers granted to make laws in this fashion when "necessary", or in the case of emergencies, are subject to abuse in the future:

You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. But why are we allowing ourselves to get into the habit of Henry VIII clauses? Why should we? By allowing them become a habit, we are already in great danger of becoming indifferent to them, and to the fact that they are being enacted on our behalf.

He concluded by imploring the coalition Government to include the "pernicious" Henry VIII clauses in the promised Great Repeal Act or risk the "inevitable consequence of yet further weakening the sovereignty of Parliament and increasing yet further the vast authority of Whitehall ".

Separating powers? These judges speak out

Traditionally English judges – like Canadian judges – steered well clear of the political process. But top judges in England are speaking out in ways that are frankly extraordinary: see the Master of the Rolls' attack on the power of the European Court of Human Rights, Baroness Hale's concerns that the Human Rights Act has been hampered by constitutional disputes, and the head of the Supreme Court's view that the Human Rights Act aids the fight on terrorism.

Lord Judge's speech, which has some great jokes, BTW, is the most direct attack (outside of the courts, at least) on current legislative trends, although admittedly not on law which was enacted by the current Government. The apparent failure of Parliamentary scrutiny he highlights may even leave law tainted by Henry VIII clauses more vulnerable to judicial review.

I was also delighted to see that the latest issue of the LRB contains a vigorous review by Lord Sedley of The Treatment of Prisoners under International Law by Nigel Rodley, The Enemy of All: Piracy and the Law of Nations by Daniel Heller-Roazen, and The Invisible Hook: The Hidden Economics of Pirates by Peter Leeson. Sedley's review covers "von Emmich’s infantry crossed the frontier [in August 1914] in parade-ground order, accompanied by horse-drawn field kitchens with fires burning and army cooks stirring the regimental stew", the seaman’s ballad ‘The Flying Cloud’, [1830s, after which Toronto's oldest folk club is named],

And it’s now to Newgate we are come, bowed down with iron chains
For sinking and for plundering of ships on the Spanish main.
The jury found us guilty and we are condemned to die.
Young men, a warning take by me, and shun all piracy.

a discussion of the demise of Captain Hook in Peter Pan and an evisceration of the arguments from the law of piracy that Professor John Yoo deployed to justify scrapping the protections of domestic and international law in relation to the fight on terror.

Well worth a read.

Would a Canadian judge review books on such critical topics in terms that express strong – and strongly reasoned – personal opinions?

I have been very impressed with all the new columns here on Slaw.ca. Fantastic work, everyone! Hopefully others have also stopped by on a daily basis to check out the column each day in addition to the daily blog posts.

For readers looking for more, here are five other law-related blogs — by bloggers not already featured as columnists or contributors on Slaw — that I consider "must-read":

• Michael Geist's Blog – Michael Geist not only tracks intellectual property issues in Canada, but also he influences them. This blog is essential reading for those of us interested in copyright, digital media and other related issues in Canada.
• 3 Geeks and a Law Blog – Greg Lambert, Lisa Salazar and Toby Brown don't shy away from controversial opinion. I find Greg Lambert especially hones in on the latest issues in legal research, and find he consistently adds to the discussion. Lately they have been bringing in guest bloggers as well to boost the content. Well worth a look.
• CultureLibre.ca – One of the leading Francophone law bloggers in Canada, Olivier Charbonneau was my fellow speaker at the Legal IT conference in Montreal in April. I was impressed with his depth of thought with regard to legal research and technology. He posts to his blog regularly, often a few times each day, on a range of topics that would be of interest to Slaw readers.
• Above and Beyond KM – Mary Abraham writes about law, knowledge management, and human observation. Mary writes the blog we all wish we could write–she posts frequent, thoughtful posts assimilating all that she is learning in her daily work. She is a smart, creative and strategic thinker.
• Real Lawyers Have Blogs – Kevin O'Keefe and his crew at LexBlog not only do regular round-ups of their networks of blogs, but also include regular interviews with law bloggers, cover conferences, track changes to social media of interest to lawyers, and include opinion pieces. This is one of the first I ever read back when I first discovered blogs, and it has remained on my favourites list.

It was very difficult to narrow down my favourites to just these few. What should I add to the list? What are your must-read law blogs?

Image: Reading by Martathegoodone from Flickr, used under Creative Commons.

I see from Carswell's online catalogue that a new 7th edition of the the Canadian Guide to Uniform Legal Citation (the "McGill Guide") is due out on July 19, 2010.

There are separate records for what appears to be a softcover version ($50) or a hardcover version ($93) with no immediate indication of there being an online option.

I have long been critical of parts of the McGill Guide so it will be interesting to see what is new in the 7th edition.

I found with the 6th edition there were no good examples of citing to the Canadian Encyclopedic Digest or to your typical OBA or LSUC conference paper. One hopes the editors listened to my complaints.

I also hope they take a more permissive attitude towards neutral citation. I am a strong believer that citing a case with a neutral citation to only the neutral citation is sufficient, with there being no need to include parallel citations.

Although I was going to blog at some point on using the iPad for legal work (e.g., including the useful tip to use the "two finger swipe technique" to properly scroll pages when using the Safari browser on iPad when searching Westlaw or Lexis – see video here for the technique, which works), the reality is that the iPad has been for me an entertainment device.

While I was successfully able to use the iPad in place of a laptop on a recent 1-week business/pleasure trip (with the business-side of things largely being checking email, taking notes and doing some online searches), I am enjoying it most for fun stuff.

Although I realize there is clearly more important world issues at stake, for those who don't mind a break from substantive legal issues, set out below are some must have fun apps (realize this is my first Apple product ever, so I don't want to be accused of being too keen on the product):

- Slayer HD Pinball (Pinball HD is also good, better than ESPN Pinball)

- Doodlejump (for iPhone but works well on iPad): best game ever, although my high score is only 24,110

- Plants versus Zombies HD

- FlightControl HD

- Angry Birds HD

- Scrabble

- New York Times Crossword Subscription

I found Real Racing HD interesting (you steer by tilting the device) but not something that would last beyond an initial try. Ditto re Labyrinth 2 HD. I was also not impressed with Pac-Man, finding the controls too hard to maneuver. Although not a game, I liked Corkulous for organizing lists and other information. For book readers, I find the most choice for content and cheaper prices using the Kindle for iPad. Like Simon, I am using Dropbox and also Evernote for my "cloud" working environment but also purchased DocsToGo without having used it much.

To make the time commuting by public transit pass more quickly, I find watching movie rentals or purchases from iTunes, although expensive, to be a satisfactory experience holding the device on my lap (although it is true what they say about the glare – it is hard to view content in bright sunlight).

Now back to more serious stuff.

Statistics Canada has released a difficult study, "Police-reported Crime in Inuit Nunangat" by Mathieu Charron, Christopher Penney and Sacha Senécal. Difficult because it shows us something about our country, our society, that we commonly prefer to ignore, and difficult too because the problem revealed is amenable to no easy solution.

The term Inuit Nunangat, I learn (I'm ashamed to say), refers collectively to the four settled regions at the top of Canada in which forty of the fifty thousand Inuit live. See the map below (click on it to enlarge it):

source: Indian and Northern Affairs Canada

I should point out that, as the authors say:

Since there is no reliable and complete information on the Aboriginal identity of the victims or perpetrators of crime. . . , the current study is based on a geographical approach as a proxy for Inuit-specific information.

The data show that the rate of reported crime is six times higher in Nunangat than in the rest of Canada — one incident for every 2.5 residents, versus one for every 17 residents — and the violent crime rates are a shocking nine times higher than those outside Nunangat. The study breaks the data down into particular categories — location, population, type of crime, etc. — and explores in outline fashion the various likely reasons for this disparity.

This study forces us to acknowledge an aspect of the general national disgrace that is the current situation of Canada's aboriginal people. For that reason it should be required reading.