Nasty Women in the Law

img_4166

Last week, the Women’s March overshadowed Trump’s Inauguration. So what was it about Hillary Clinton that people found so nasty? What was it that triggered such comments like: “such a nasty woman”?

And what is it about women lawyers that trigger these attacks? Such as: “Marie Henein is a successful female lawyer at the top of her profession. Total bitch.”

In “Nasty Women and the Rule of Law“, Alice Woolley and Elysa Darling analyze this conundrum. They argue that women lawyers face this backlash because being a lawyer requires women to challenge and subvert gendered norms. Women are supposed to be feminine. Being feminine usually means being: affectionate, cheerful, sensitive, soft-spoken, warm, and so on. Contrastingly, being masculine generally means being: a leader, aggressive, ambitious, assertive, analytical, dominant, competitive, and so on. Characteristics that lawyers are generally required to embody.

Woolley and Darling state:

But by acting in this way [masculine], she not only violates our expectations of what women can do, she also violates our standards about what women ought to do…

[W]omen risk being targets of gendered hostility, because being a good lawyer means being a bad woman – it means abandoning or acting contrary to the communal behavior women ought to exhibit, in favor of the agentic values men ought to exhibit. This is particularly so if the woman is an aggressive lawyer, exhibiting the kind of zeal and occasional incivility that the profession frowns upon, since doing so could be considered a violation of a “gender-intensified proscription”.

Interestingly when we look at Hillary Clinton she is often described as masculine. Whereas Ivanka Trump (a power player in her father’s circle) is often described in feminine terms, e.g. beautiful, a good daughter, polite etc. [To read more about Ivanka’s carefully crafted persona click here: INSIDE IVANKA AND TIFFANY TRUMP’S COMPLICATED SISTER ACT. ]

So what’s the solution? How can women lawyers embody traditionally masculine characteristics and avoid all of the nastiness?

—–

I originally posted this blog post on slaw.ca. I would like to add to my original post by stating that I completely agree with Woolley and Darling’s paper. Women are faced with a backlash and are often punished or called names for exhibiting “masculine” traits. This backlash often occurs for behaviour that no one even notices coming from a man, a treat that I have experienced first hand. Perhaps the only answer is to stay calm and carry on in the face of sexism.

“I would have quit this job a long time ago if I was listening and waiting for people’s approval.”– Marie Henein (Toronto Life)

 

 

 

Civility in the Classroom

Last week I had the honour of guest lecturing at the University of Ottawa law school as the inaugural Cavanagh Williams LLP Practitioner in Residence. The topic was “Ethics in Advocacy”. It was an honour to be a part of the course “Professional Responsibility”.

The lecture began with an introduction of the topic by Professor Adam Dodek. Subsequently, I led a discussion of the principles of professional conduct. The discussion dealt with a variety of scenarios encountered in legal practice. There was a lively debate about how lawyers should handle swearing affidavits, disclosing relevant documents, and preparing witnesses for court (among other things). All scenarios were based on true stories that included ethical dilemmas.

The lecture ended with a group presentation on the meaning of civility and the principles of professional conduct. Of interest was a debate about the case Laarakker2011 LSBC 29. In that case, the lawyer Mr. Laarakker was disciplined by the Law Society of British Columbia for making discourteous remarks online and directly to an Ontario lawyer. Below are the discourteous remarks:

[12] After consulting with the client, the Respondent sent a one page fax letter to the Ontario Lawyer. The Respondent’s letter read:

I have been approached by [the client] with respect to your letter of October 30, 2009. Suffice it to say that I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to the only use for which it might be suitable, however uncomfortably.

It is disappointing when members of our profession lend themselves to this kind of thing. You must know that you are on the thinnest of legal grounds and would be highly unlikely to get a civil judgment against my client. That is aside from the logistics in bringing this matter to court in BC. I am also well aware that by preying on people’s embarrassment and naiveté you will unfortunately be able to pry some money out of the pockets of some of the humiliated parents.

I have notified the local paper of this scam. Save the postage in the future and become a real lawyer instead! You must have harboured dreams of being a good lawyer at one point. Surely bullying people into paying some small amount of money is not what you went into law for.

But then again, someone has to be at the bottom of his class, practising with a restricted license as you appear to be.

Good luck.

[13] Two days before sending the letter, on November 20, 2009, the Respondent posted a comment on the “Canadian Money Advisor” internet blog. The Respondent posted the comment in response to two postings made by an individual who had received a letter similar in nature to the Demand Letter. The Respondent posted on the blog as follows:

I am a lawyer.

This guy is the kind of lawyer that gives lawyers a bad name. He is relying on intimidation and blackmail to get the lousy $500. Don’t pay him. I hate these sleazy operators.

Speaking as a lawyer, he would have little chance of collecting in court. He would have rto [sic] prove that a chiold [sic] was a habitual criminal. As far as an adult is concerned, he has to prove the loss. Also remember this, he has to bring the action in a court near to where the incident took place (at least in BC) Gueuss [sic] what – that ain’t going to happen.

The Law Society of British Columbia fined Mr. Laarakker for his remarks. Apparently it’s distasteful for lawyers to air their dirty laundry in public. The Law Society concluded:

[45] As noted above, the Respondent takes the position that he was allowed, perhaps even compelled, to do what he did in the face of a “rogue lawyer”. Even if the Ontario Lawyer can be considered to be a “rogue”, it is not the Respondent’s place to pursue some form of vigilante justice against that lawyer by posting intemperate personal remarks or by writing letters that do not promote any possibility of resolution of the client’s legal dispute.

[46] Clearly, the appropriate avenue for the Respondent to take would have been to file a complaint either with the Law Society of Upper Canada or the Law Society of British Columbia. Obviously, the Respondent did not take those steps. Thus, by taking actions that he felt were protecting the integrity of the profession, he was achieving the opposite result.

(I personally disagree with the decision. Mr. Laarakker was warning the public about a scam. It was practically a public service announcement. Just because his tone could have been softened, doesn’t mean he deserved to be fined. After all these were questionable demand letters sent to unsophisticated individuals.)

I really enjoyed the class’s discussion on this case. It was interesting to hear the perspectives of students, especially considering that most of them are of the Facebook, Instagram, Snapchat generation.

The day ended with a small lunch with a few students. I had a wonderful experience, and I hope that the students enjoyed it too!

 

 

Suing Apple over FaceTime

apple_logo_black-svg

In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?

The Pursuit of Mastery

drivecover
With a new year comes new resolutions. 2017 is no different. But what really motivates us? Is it money, status, fame, or something deeper?
 In the book Drive: The Surprising Truth About What Motivates Us, Daniel Pink writes that deeper motivation comes from the pursuit of mastery, autonomy, and purpose. “The most successful people are not directly pursuing conventional notions of success. They’re working hard and persisting through difficulties because of their internal desires to control their lives and learn about the world and accomplish something that endures.”
Unfortunately, the path to mastery (becoming better at something that you care about) is not lined with daisies and rainbows. As explained by Daniel Pink “Mastery hurts”. It is the product of persistent practice over many years.
But mastery attracts precisely because it eludes. “Greatness and nearsightedness are incompatible. Meaningful achievement depends on lifting one’s sights and pushing toward the horizon.”

Trump & Twitter: Will it ever end?

img_4108

After the recent “arms race” debacle on Twitter, it’s anyone’s guess why Trump is allowed to run his own Twitter account. It makes absolutely no sense. The days of tweeting about Rosie O’Donnell are long gone. Now every Tweet, regardless of its significance, is micro-analyzed. At a keystroke, he can set-off a chain of events.

The Tweets appear to be written by him, almost always impulsively. Someone needs to come between him and his Twitter account. Maybe Ivanka? Slate is basically calling her America’s real First Lady.

ivanka

The significance of Trump’s Twitter account can be seen on the world stage. Before the United Nations vote regarding Israel, it is said that the Israeli Prime Minister reached out via Twitter to Donald Trump. Soliciting him to intervene in the vote against Israeli settlements.

It’s fascinating to observe social media play such a unique role in global affairs. But also absolutely terrifying. Sometimes policy decisions need more than 140 characters to explain.

 

 

 

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

watch-better-call-saul-online.png

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 

donald_trump_2013_cropped_more

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.