Regulating Law Firms

As we say goodbye to 2016, it’s time to embrace 2017. For 2017, law societies should place an emphasis on regulating law firms.

A law firm’s culture seeps into the very make-up of its constituent lawyers. An unethical culture breeds unethical lawyers. An ethical culture breeds ethical lawyers.

In “Regulating Law Firms in Canada“, Professor Adam Dodek states that the absence of law firm regulation undermines the legitimacy of law societies. I agree.

Under the pressure from law firms to meet deadlines, win cases, win motions, appease clients, and surrounded by a certain firm culture, lawyers may find themselves suddenly doing things they never thought possible. For example, a mid-level associate in a large firm may fail to disclose a potential conflict of interest. But by disciplining only that individual lawyer, law societies “miss part of the story of how the practice of law operates and how it should be regulated.”

Professor Dodek explains:

Law firms are front and center in the lawyer-client relationship. As Lucie Lauzière has written, “[t]he law firm is now the intermediary between client and lawyer.” This is certainly true in terms of advertising, solicitation, client intake, conflicts of interest, retainer agreements, billings and many other interactions that clients and potential clients have with the delivery of legal services via “the firm.” With larger law firms, the influence of a collective culture may be even stronger.

Law Societies should regulate law firms because of the enormous power that law firms exert over the behaviour of its constituents. Behaviour once seen as obscene, now normalized by a law firm’s culture, may become second nature to its lawyers. Through the regulation of law firms, law societies can promulgate ethical standards.

There are many ways to regulate law firms. The three most powerful ways to do so are licensing, audits, and discipline. First, law societies should license law firms. This should include a vetting process. Second, law societies should audit law firms as a whole. The audits should include looking at professional conduct practices. Third, law societies should discipline law firms for the behaviour of its lawyers. The discipline of law firms can include fines, suspension of license for the firm, revocation of license for the firm, the imposition of policies, and announcements to the profession of “bad” behaviour of the firm.

Firms need to take responsibility for their individual lawyers. Not every bad apple is a rogue apple. And its time for our law societies to go beyond the individual and take a hard look at the law firms themselves.

(This post was previously published on slaw.ca.)
In my slaw post  John Kleefeld commented that law societies are moving towards changing the regulatory process. Specifically, British Columbia has examined this issue and released a paper in October 2016 titled “Interim Report of the Law Firm Regulation Task Force”.  In the report it was recommended that law firms not be licensed:
 “Given the administrative burden and costs associated with authorization, and the fact that there is already a licensing process at the individual lawyer level, the Task Force recommends that initially, firms not be required to go through a formal process in order to obtain a license to provide legal services. At this stage of regulatory development, registration will suffice.”

Diamond & Diamond: More Questions than Answers

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Last week Diamond & Diamond was unmasked by the Toronto Star Reporter, Michele Henry. She unveiled lewd text messages between lawyer Jeremy Diamond and a staff member and revealed that the firm operated mostly as a referral service. Meaning that the firm advertised to the public and then referred the cases to other law firms for a fee.

Her articles raised more questions than answers to me.

  1. Michele Henry is a food reporter with the Toronto Star. Why did she feel compelled to write about law firms all of the sudden?
  2. Why write about this now? Was she tipped off? Who tipped her off? What were their motivations? Or has she been investigating this independently for months?
  3. Will Michele Henry investigate other law firms? Diamond & Diamond is not the only firm that feeds off referral fees. Will she take on the other law firms that advertise on TV?
  4. Diamond & Diamond has been feeding off referral fees for years. Other lawyers have known about this for years. Did lawyers have an obligation to blow the whistle? Are personal injury/ insurance defence lawyers complicit in Diamond & Diamond’s scheme?
  5. Assuming advertising needs to be controlled, with the ubiquity of the internet, how do we control lawyers’ advertising?
  6. And lastly, will reporters look into law firms’ connections with hospitals? (Some law firms get client referrals directly from hospital employees. And is that source of referrals ethical?)

 

 

Closeted Sexists 

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Why did Trump win? There are multiple theories out there. Populace thinking. People’s ignorance. Human stupidity. Hatred for Hillary. And sexism. 

Sexism is alive and well. For some men and women, the idea of a woman being President is just too much to handle. 

It makes me wonder how many people out there are closeted sexists too. Afraid to announce that they too think a woman is unfit for leadership. 

Is Justice Blind?

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Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?

Should the Courts Have a Spokesperson?

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The internet has democratized criticism. Anyone with a Twitter account, Facebook account, LinkedIn account, etc can voice their opinion. And with it has come greater mistrust of our courts. Some of it unfounded.

In “Justice Understood”, Patrick McCann gives the examples of the Ghomeshi and Duffy trial. “When Ghomeshi and Duffy were each eventually acquitted, the judges’ rulings in both cases were met with massive public outrage leading to vitriolic criticism of the lawyers and judges involved – criticism that was extrapolated to the justice system [as a whole]… People didn’t understand how the judge could allow evidence of past romantic history between the complainants and Ghomeshi to be presented. Some claimed defence counsel Marie Henein crossed the line in her cross-examination.”

But some of this public criticism of our courts is rooted in a misunderstanding of the justice system. To ameliorate this problem, Patrick McCann explores the idea of anointing a spokesperson for our courts.

So, who would this spokesperson be?

This spokesperson could be a judge or a lawyer. Someone with a deep understanding of the law and the ability to answer questions about the courts. Essentially a press secretary.

How would this work?

This person could hold press conferences, explain court decisions and laws in short Youtube videos, and be responsible for social media. The parameters would have to be carefully thought out. As there is a fine line between explaining and spin. And when it comes to our courts, there is no room for a spin doctor.

Is this necessary?

Yes.  Only 57% of Canadians have faith in the justice system.

In this new age of social media, everybody expects there to be two-way communication. So, the silence of our courts sends a message. This message can be interpreted in a myriad of ways. Including that our courts just don’t give a damn about the average Canadian. And that only the elite are entitled to understand its rituals and its rules.

When this “broken telephone” occurs between the courts and the public, there is a democratic deficit. A deficit that our courts must try to reduce. And by anointing a press secretary, our courts can begin to close the gap in the public’s knowledge.

Lessons from the Advocates’ Society Fall Forum

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This weekend I had the pleasure of attending the Advocates’ Society Fall Forum in Collingwood, Ontario. Below are a few of my favourite quotes and lessons from the conference:

  1. “Comparison is the thief of joy.” This was my favourite piece of wisdom from the weekend. It’s so true and all too easy to fall victim to. We are all guilty players in the game of upward comparisons, at one point or another.
  2. Relationships are the key to building a practice. Your relationships with colleagues, your relationships with friends, your relationships with other junior lawyers in other firms are all sources of potential clients.
  3. Excellence requires that you spend time outside of your caseload learning the law.
  4. There’s no shortcut to mastery. You have to put in the time and work to learn the fundamentals.
  5. Be a joiner. All great lawyers are involved in ventures beyond their job. They are a part of the broader community. For example, join the OBA, the Advocates’ Society, local lawyers association, the PTA,  a charity, etc.
  6. Learn from experience by reflecting on it. Do post-mortems after discoveries and court appearances. Ask yourself what went well and what went poorly and why that is so.
  7. Train your client about what time you will answer emails and calls.
  8. Protect your vacation time.
  9. Offer judges electronic materials, including expert reports, closing arguments, and charts that provide a list of the witnesses (e.g. a cast of characters).
  10. In oral argument, address first what you want and then explain why you want it. It is not simply a time to regurgitate your factum. It’s an opportunity to address questions that the judge may have about the facts or the law.
  11. Be genuine; be kind; be curious.

Trials Then & Now

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Thomas Hobbes famously proclaimed in Leviathan that Where there is no common power, there is no law, where no law, no injustice…No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.”

Just as life pre-law was nasty, brutish, and short. So were trials pre-18th century.  According to historian J.S. Cockburn, almost no trials lasted longer than 20 minutes. And up to 25 trials were heard in one day by a single judge and jury. In that quick time, the judge and jury would decide the fate of the accused, often representing themselves. Who were then forced to endure the punishment, without barely any chance of appeal.

By the early 19th century, the court system shifted towards the adversarial system that we have today. Rules of evidence became more entrenched, rights became more respected, and party autonomy was birthed. With the rise of party autonomy, parties became expected to provide the evidence to the neutral decision maker, who passively heard the evidence.

It is the context of our adversarial system that former Supreme Court Justice Antonin Scalia and lawyer Bryan Garner, advise lawyers on how best to make their case. They write in their book Making Your Case:

All of us are more apt to be persuaded by someone we admire than by someone we detest… Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information… by mischaracterizing precedent to suite your case; by making arguments that could appeal only to the stupid or uninformed; by ignoring rather than confronting whatever weights against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience.

The Case of the Stolen Jewellery

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This week Kim Kardashian made headlines. It went far beyond her normal headlines. She was robbed. In the middle of the night. In a foreign city. In a secluded hotel. In a shocking manner. Most likely by a gang of organized criminals. The execution: perfect. The legal remedy: predictable.

So who might she sue?

First, she can sue the hotel for failing to have adequate security measures and by creating a situation of danger. Then she can sue the hotel’s employees for failing to take proper care of her and by allowing danger to unfold.

Second, she can sue her own security team for failing to properly watch her or perhaps for breach of contract (depending on the terms). Rumour has it, her security team left her completely unattended as they guarded her sisters in a nightclub.

Third, she can sue her own insurer if they refuse to reimburse her for the stolen jewellery (assuming she has insurance).

Fourth, assuming she has inadequate insurance, she can sue her advisers for failing to reasonably advise her of her insurance needs.

But what about the defendants?

The defendants might argue that she was the author of her own misfortune. That she was the careless one. That she invited this danger. She endlessly paraded around her jewels. She bragged to the world about her whereabouts. She took picture after picture of herself wearing expensive diamonds. She invited cameras to capture her in all of her wealth. And she pursued constant attention from television, to books, to pictures, to apps, to selfies, to Instagram, to Snapchat, to Twitter, and beyond. Thereby allowing the perpetrators to plan the perfect scheme.

Injury aside, I look forward to the reality tv show “Kardashian vs the Hotel: the saga of the stolen jewellery”. They say it will be her best work to date.

 

The Sleep Revolution

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In the Sleep Revolution Arianna Huffington encourages people to sleep their way to the top. Literally sleep their way to the top.

In her new book, she explains that sleep deprivation has taken a toll on our mental abilities and has reduced our capacity to perform both at work and socially. She cites a study that revealed that the performance of someone who gets 6 hours of sleep per night for two weeks straight is equal to the performance of someone that has gone twenty-four hours without sleep.

So then why are we all so tired and sleep deprived?

Huffington points to the Industrial Revolution as the origin of pervasive sleep deprivation. “Artificial light allowed the night to be colonized, [and] mechanization allowed for it to be monetized, and capitalism had no use for sleep.” As was the case with factory workers, sleep became devalued and scorned. After all another hour sleeping was another hour not working. And another hour not working was another hour not making money. And another hour not making money is an hour wasted.

In order to indoctrinate people with this capitalistic view towards sleep, going without sleep was framed as a sign of masculinity and strength. And to this day, this mentality towards sleep remains. In her new book, she encourages as to shuffle off this mentality, take pause, and perchance to dream.