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.”

Moving Forward: From Ink Quills to Electronic Documents

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This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”

 

 

 

 

The Implicit Premise Beneath the Surface

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The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power–and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.

But that’s not all the law is. The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.

Barack Obama, Dreams from My Father: A Story of Race and Inheritance

Law school is all about “applying narrow rules and arcane procedure to an uncooperative reality”. Little attention is given to the backstory behind the rules. No pictures provided of the witnesses, no video recording of the testimonies, no references to the rich lives behind the names. Rather, the human element is stripped away. And in separating the rules from the story, little thought is given to the premises lurking beneath the surface.

But behind all judicial decisions is the weight of history, tradition, liberalism, and capitalism. Adam Dodek and Alice Woolley write in In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession “[a] legal story incorporates legal norms, cultural contexts, history, institutions, structures, and the people whose lives, whether willingly or not, come into contact with the law.”

It is easy to see an implicit premise in an out-of-date case. Professor Constance Backhouse writes in In Search of the Ethical Lawyer about a decision regarding a marital dispute. In the early 19th Century, Chief Justice William Campbell ruled that the wife had no justification for leaving the home after she was beaten for some time in front of multiple witnesses. “Justice Campbell declared that ‘a man had a right to chastise his wife moderately’… This legitimation of wife battering stood for years as the prevailing Canadian judicial edict on a husband’s rights.” The main implicit premise being that women should be subservient to men.

Ultimately, even the simplest of cases encapsulate the weight of legal norms, history, institutions, and structures that are greater than any two parties. Liberal theories on democracy and the division of property inform all decisions. The ideas of Hobbes, Locke, and Rousseau remain strong as judges implicitly entrench them with each passing decision.

Fighting Fair: From Just Wars to Just Lawsuits

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Litigation is like war. Easy to start. Hard to end. Difficult to know how it will turn out.

In Fighting Fair: Legal Ethics for an Adversarial Age, legal scholar Allan Hutchinson argues that military ethics should be applied to legal ethics. He points out that merely looking to the laws themselves is not enough for evaluating ethical behaviour. The laws take their shape because of lawyers. “The clients they represent, the causes they advocate and the strategies they deploy all influence the law’s content and substance.” The law often grows in a way that “today’s frivolity may be tomorrow’s law”. Once derided as absurd, the concept becomes tenable and then eventually accepted as law. Furthermore, just because something is the law today does not mean it is right, as evident by the laws of Nazi Germany.

 The sobering truth is that the discursive resources and frameworks for evaluating the ethical merits of military action are much richer and more sustaining than that of legal ethics.

The main thrust of military ethics is that any and all violence in war must be justified. There are five conditions for a just war. They are:

  1. a just cause;
  2. rightful intentions (not simply to recapture something and not motivated by hidden / ulterior intentions);
  3. proportionate – there is more good to be achieved than the harm to be done by waging war;
  4. it is the last resort; and
  5. there is a reasonable chance of success.

The abiding objective of entering and waging a just war is to achieve a just and lasting peace, not a punitive and temporary victory. Accordingly, the goal of military action is not simply to win, let alone crush the enemy, but to work toward a future situation in which war will no longer be a possibility between the parties. It is considered that this cannot be achieved unless the victorious side negotiates a settlement that is fair and reasonable to both sides…. Any remedy achieved must be commensurate with the wrongful or transgressive conduct that gave rise to the hostilities in the first place…

[T]he negotiator’s primary duty is to be fair and forward-looking… Ethical lawyers will work toward settlements that are reasonable and defensible… In both military and legal ethics, it is paramount obligation to act both discriminately and proportionately. Indeed it is the ethical signature of the warrior as opposed to the hired gun to be both a good winner and a good loser.

Like a just war, lawyers should promote just lawsuits, using proportionate force to achieve their ends. These ends should be directed to a lasting peace and not to an ulterior motive.

 

 

 

Can Judges Blog Post-Appointment?

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Controversy swirled around recent Supreme Court of Canada appointee Justice Brown. Prior to being appointed to the Supreme Court bench, Justice Brown contributed to the University of Alberta Faculty of Law’s Blog. As the first blogger appointed to the highest court in the land, questions abounded. People asked “Should blogging automatically disqualify someone from sitting on the bench?” The consensus seemed to be NO.

But can judges continue blogging about the law after their appointment?

Yes, but with a caveat!

Judges should be encouraged to blog in order to bring transparency to the judiciary and engage the public. It would be great to hear what a typical week of a judge looks like or to hear about common pitfalls in motion records, facta, and Books of Authorities.
However, judges should not be allowed to blog about cases before the court or cases heading to the court. Such commentary would compromise the appearance of impartiality and would risk undermining the decisions’ of other judges. Even worst, public commentary could exert peer pressure on the way other judges’ decided their cases.
Although not a blog post, the Nadon fiasco illustrated the dangers of judges publicly opining on matters before the court. The Harper government commissioned and then released the opinion of former Supreme Court judge the Honourable Justice Binnie. His opinion contradicted and consequently undermined the authority of the decision later rendered by the Supreme Court of Canada.
Concurrent inconsistent viewpoints would bring into question the legitimacy of judges’ decisions.

Advice to New Law Students

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(1) Think long-term:

(i) Be kind to your classmates. Building your professional reputation begins on the first day of orientation.

(ii) Compete with yourself, not others. The old adage of “look to your left, look to your right, because one of you won’t be here by the end of the year” is false.

Remember, “true nobility lies in being superior to your former self.” – Ernest Hemingway

(iii) Focus on understanding the material instead of fixating on the pursuit of good grades. As future officers of the court, you have a professional obligation to understand legal concepts. And, anyways, good grades follow an understanding of legal concepts.

(iv) Keep perspective. Although grades are important (future employers will use them as a lazy shortcut to weed potential employees out), ultimately grades are a footnote in your life journey. Trust me, no one is writing them on your tombstone.

(2) Learn the Basics:

(i) Before starting law school, read about the history of our legal system. History shapes the development of case law. Case law does not form in a vacuum, even for Lord Denning. “The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps” (Carter v. Canada, 2015 SCC 5). Look to Professor Dodek’s reading list to get started – http://bit.ly/1MtnuHu.

(ii) Review civil procedure before even touching case law. Case law makes infinitely more sense with an understanding of procedure. Procedure is intimately tied to the substance of the case. In particular, you should pay attention to learning the difference between appellate level versus trial level and interlocutory versus final decisions. Challenge yourself to spot them when reading case law. E.g. Is this an appellate case? Is this a motion?

(3) Read different textbooks:

Find a textbook that clicks with the way you think. Cheat on your syllabus and start “seeing” different textbooks. Maybe even different libraries. If you live in Toronto, go to the Great Library in your quest for better resources.

(4) Modify – Don’t Adopt:

Study as you studied before with minor tweaks. Professors will make a huge deal about summaries. Often people waste hours making them look perfect. This is stupid. You do not submit these summaries for grades. Write them for you.

(5) Enjoy the ride!

Three years goes by in a flash. It is a privilege to be in law school.

Judges Googling Facts

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Despite what we may see on TV shows like Damages and Suits, judges must decide cases based on the evidence presented in the courtroom by counsel. Judges cannot go around and talk to whomever, whenever they want about whatever they want. For example, contacting victims of a crime; talking to doctors at cocktail parties about the effects of a drug in question; or telling your law clerk to visit a property in dispute for you are all against the rules. And would definitely lay the foundation for a mistrial in real life.

However, in law there is always an exception to the rule. Judges can sometimes go beyond the evidence presented to them. They can judicially note facts. Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence without being tested in the courtroom. These facts need to be (1) so notorious or (2) capable of immediate and accurate verification (e.g. Google Maps).

But what is a fact?

Elizabeth Thornburg writes in “The Curious Appellate Judge: Ethical Limits on Independent Research” that the difference between fact and law is based on legal fictions.

Thornburg states that even the Supreme Court has recognized that in some cases that the fact/law distinction turns simply “on a determination that … one judicial actor is better positioned than another to decide the issue in question.” The courts generally assign decisions that are more important to the judge over the jury.

Consider, for example, the contrasting way in which courts treat issues of negligence and issues of contract interpretation. Negligence decisions are treated as facts—and decided by juries—even when they include evaluative, law-application considerations such as whether the defendant’s conduct was “reasonable.” Contracts cases, on the other hand, often define the ultimate fact issue, such as whether a contract was “breached” or whether it is “unconscionable” as a question of law for the court. Why? Not because there is some inherent difference between the kinds of facts being decided, but because courts have rejected a normative role for the jury…

But when it comes to judicial notice it should be cautioned, that sometimes “There is nothing more deceptive than an obvious fact.”
― Arthur Conan DoyleThe Boscombe Valley Mystery

Check out Elizabeth Thornburg’s excellent article “The Curious Appellate Judge: Ethical Limits on Independent Research” at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1267684

The Canary in the Coal Mine

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In many ways the taxicab industry is the canary in the coal mine. Silently ringing the alarm to tell us that technology companies are circling in on highly regulated industries, ready to disrupt them, ready to leave a wreckage at whatever the cost.

The scariest part of it all?

These new technology companies operate outside the law. In Your Profession, Your Future hosted by the Advocates’ Society, Monica Goyal explained that these new start-ups operate outside the law because they simply cannot afford to operate inside the law.

What will happen when new legal start-ups operate outside the law?

Once one of these apps gains marketshare, some law society out there will sue them. These new apps will hire lawyers. These lawyers will bring the inevitable argument: “This is a technology company and NOT the unlicensed practice of law.”

Regardless of the lawsuit’s outcome, law societies will fail to prevent the onslaught of legal services provided by technology companies. Therefore, law societies must begin to regulate actors beyond lawyers.

Currently in Ontario only lawyers and paralegals are regulated. This is concerning considering that the reign of lawyers is ending and the infiltration of new legal providers is beginning.  “Ultimately,.. the disruptive effect of technology will trigger the end of lawyers’ monopoly (“the Great Disruption”, John McGinnis and Russell Pearce).” Given the inevitable triumph of new actors, regulation of all legal providers must occur, from the lawyer all the way up to the big company.

No one, no “thing” should be above the law. Professor Dodek’s remarks in “Regulating Law Firms in Canada” could easily be extended to start-ups and entrenched legal technology companies (e.g. LegalZoom):

Ultimately, law societies should regulate law firms because of the fundamental rule of law idea that no one is above the law and that the law applies equally to the most powerful as well as to the weakest in society. Law firms exercise significant power within the Canadian legal profession and within Canadian society. The perception that the most powerful within the legal profession lie outside of regulation has the potential to seriously undermine public confidence in self-regulation of the legal profession. It is not enough to simply regulate the individuals who make up law firms because law firms have an independent existence and identity. Individual lawyers promote their practices to the public through the vehicle of the law firm. The public sees law firms but does not see law firms being regulated.

Dodek’s article: http://bit.ly/1NQZgov

Self-represented Litigants

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At the Working with Self-represented Litigants Program hosted by the Canadian Institute for the Administration of Justice, Professor Noel Semple discussed the rise of self-represented litigants. He remarked that many people are lured into representing themselves by the apparent feasibility of litigation.  http://www.noelsemple.ca

Professor Semple states that the perception of feasibility leads to more self-represented litigants. More self-represented litigants leads to more stress on the justice system. More stress on the justice system leads to more services for self-represented litigants. More services increases the perception of the feasibility of self-representation, and the cycle continues.

However, once in litigation, self-represented litigants experience feelings of frustration, stress, anxiety, and report being overwhelmed by the process. Litigation can bankrupt people emotionally and financially.

All litigants should be warned about the potential pitfalls of litigation. As Professor Adam Dodek frequently states “litigation is like war: it is easy to start but difficult to predict how it will turn out”. I would add that litigation, like war, is easy to start but hard to end. Lawsuits can easily take a decade from the issuance of a claim to the final disposition of the matter, especially if defence counsel engages in delay tactics. Consequently, sometimes the best strategy to conflict resolution is forgiveness instead of litigation. “To err is human; to forgive, divine”.