Ontario lawyer David Lepofsky, the 2014 Roy McMurtry Visiting Clinical Fellow, recently delivered a baker’s dozen of lectures on disability rights advocacy at Osgoode Hall Law School. You can view them all online using the playlist on Osgoode’s YouTube channel.
David’s lectures range across a wide variety of topics, from particular specific case studies, such as causing Toronto’s transit commission to announce subway stops, to “ethical lawyering in a global community.”
The Go-Go’s in their 1981 hit song Our Lips Are Sealed sang that they had no secrets to reveal. How lucky for them. The rest of us in society encounter secrets in a multitude of circumstances. We are taught from a young age that disclosing secrets is not only bad for the person whose secret we keep but equally for the one disclosing. In a society and profession where reputation is key, being trustworthy can either make you or break you.
When and if secrets are revealed typically depends on the parties in the know. In a professional context, it is dictated by terms a client has agreed to. However, in a solicitor-client relationship, clients have a heightened underlying expectation that their lawyers will keep their lips sealed. Societal trust and reputation are key to building a more positive representation of the legal profession.
Divulging personal and private information may be difficult, even when the purpose is to get aid from a legal professional. Although clients may expect full cooperation from lawyers, they face competing representations of the legal profession that may leave them feeling uncomfortable in disclosing their matter.
A client whose disclosure is curtailed due to unease may present a lawyer with more difficulty in adequately representing their needs and interests. Can the legal profession identify whose fault this is? Should we blame the client whose attitude towards the profession is based on the reputation that lawyers themselves depict? Or should we instead be thinking about how to quash societal distrust and build towards a cultural understanding and confidence of lawyers as ethical professionals?
In Leviathan, Thomas Hobbes described a society where lives were solitary, poor, nasty, brutish and short. The every man for themselves, gaining advantage by any means possible, leaves society at a loss. The democratic world we live in, however, is made up of rules we adhere to that set a barometer of conduct expected. In Ontario, the Law Society’s rules dealing with confidentiality require a lawyer to hold all information concerning the business and affairs of a client in strict confidence unless authorized by the client or required by law to do so. Legal ramifications are in place to punish lawyers whose bahviour falls outside this standard, however societal distrust in the profession is still prevalent.
Perhaps we can point fingers to the ‘bad apples’ that draw media attention and have the most impact on tainting people’s beliefs of the profession. Or we can acknowledge that there may be good intentioned professionals who may not be aware that their behaviour is unethical.
Retaining a celebrity client or taking on a dramatic case can tempt one to disclose even the smallest fact. Perhaps lawyers may think that a casual ‘water-cooler’ or elevator conversation, even with colleagues, is not a breach of confidentiality. One may rationalize disclosure by believing the person they disclosed information to will keep tight-lipped, or is a trustworthy friend or spouse who has no connection to the client. Whether engaging in gossip is intentional or unintentional, its effects can become devastating to the profession and a lawyer’s reputation.
Society’s attitude towards the profession is not only influenced by the cultural depictions seen and heard of, but also by one-on-one interactions with lawyers. In fact, these depictions can often be conflicting, where people can have a sense of distrust towards the profession but find their lawyer is the exception and not the rule.
Building a good reputation not only contributes to a more positive outlook of the profession, but also helps a lawyer economically. When people are satisfied with a service, word of mouth is a powerful form of advertising. A client’s satisfaction may be a result of a successful case or a belief that their lawyer was loyal and did all they could to protect their interests above all others. Where a client can be assured that they can share information that will be received non-judgmentally and kept secret, it fosters a sense of reliance and dependability that contribute to the trustworthiness of the profession.
Although it is easy to get caught up in the notoriety of a case or feel like we have to set the record straight on public discussion involving a client; the sooner we deal with the reality that as legal professionals we are essentially professional secret-keepers, the faster we can realize that in the long run it is best to keep our lips sealed – we will be respected for it. This involves a conscious decision not to misuse confidential information and to ensure the client’s interests remains at the forefront.
Although lawyers are the butt of pop-culture jokes, the more we advance an ethical reputation on an individual level the more we can influence societal perception and foster a sense of trust towards the profession as a whole.
Being open and honest may sometimes work to your advantage. However, in a previous carreer, I was taught early on to keep my cards close to my chest. Although I am not a poker player, life and work seem to be pieces to a puzzle that if we don’t navigate properly, may cause us to lose out in the end. Perhaps the Go-Go’s have set the standard to which we should follow in our professional lives. Did they really have no secrets to reveal – or were they just great at bluffing to protect what they knew?
The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Rule of Law
Bill 14 – Justice Statutes Amendment Act, 2014, Amending WESA, has Passed and Been Given Royal Assent
Bill 14 , which contains an amendment to section 2 (2) of the Wills, Estates and Succession Act, has passed, and was given Royal Asset on April 9, 2014. Section 2 (2) sets out when people cease to be spouses for the purpose of the Act. You can read about the amendment in my previous post here. . . .
SOQUIJ | Le Blogue
L’inaptitude comme motif d’annulation d’un contrat de vente
Dans un reportage de l’émission La Facture diffusée le 8 avril 2014, on présentait l’histoire d’un homme souffrant de bipolarité qui s’était lancé dans une série d’achats compulsifs dont il demandait l’annulation. Il a même signé des offres d’achat d’immeuble. Peut-il plaider son état psychologique pour faire annuler les transactions ? Voici quelques exemples de décisions portant sur des cas similaires. . . .
Access Copyright Urges Copyright Board to Ignore Bill C-11′s Expansion of Fair Dealing
As I noted in a post yesterday, Access Copyright has filed its response to the Copyright Board of Canada’s series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. Yesterday’s post focused on how Access Copyright has urged the Copyright Board to ignore the Supreme Court of Canada’s ruling on the relevance of licences to a fair dealing analysis. Today’s post examines the collective’s response to the Copyright Board’s question on the effect of the fair dealing legislative change in Bill C-32/C-11. Access Copyright engages in revisionist history as it seeks to hide its extensive lobbying campaign that warned that the reforms would permit mass copying without compensation. . . .
BCCA: Refusing to Allow Employee to Work during “Working Notice” is Termination
Has an employee who is ‘walked to the door’ by his employer been fired or has he simply been subjected to a fundamental change in employment? What if the employee was provided with “working notice” before being escorted to the door? Can someone be both: (a) escorted out of the building, told not to return, and announced as having “left the company”; and (b) an employee of that company at the same time? Or are those two positions mutually exclusive? Those were the question the Court of Appeal for British Columbia was asked to answer in the case of Allen v. Ainsworth Lumber Co. Ltd., 2013 BCCA 271 (CanLII). . . .
Thoughtful Legal Management
Learning to Lead from Your Inner Executive
This is another guest post from Beth Flynn at the Ohio State University Leadership Center. All of us have these two parts within – the wise and intentional inner executive and the unconscious inner elephant, which does a good job for us most of the time. The friction between inner executive and inner elephant occurs when they have different ideas about desired behavior. The inner elephant is concerned about its own needs and comforts, and is often stronger than the inner executive. The inner executive can see the bigger picture even if it has not learned how to guide and control the elephant. . . .
*Randomness here is created by Random.org and its list randomizing function.
As I sit and write this column it is a warm 11 degrees in Victoria and the flowers are starting to bloom. While I realize that my colleagues in many parts of the country are still buried in snow, our thoughts on the west coast are starting to turn to spring. At this time of year I engage in an annual exercise that began when I ran my small law office and continues to this day with my consulting firm. That practice is spring-cleaning and it is a simple process that I recommend to all of my clients. While each firm and lawyer will have different specific issues that they should be addressing at this time of year, below is a list of six basic steps that any lawyer can take to develop a sense of a fresh start this spring.
Senior Associate Dean Richard A. Danner of Duke University School of Law has posted Influences of the Digest Classification System: What Can We Know? forthcoming in Legal Reference Services Quarterly.
Here is the abstract:
Robert C. Berring has called West Publishing Company’s American Digest System “the key aspect of the new form of legal literature” that West and other publishers developed in the last quarter of the nineteenth century. Berring argued that West’s digests provided practicing lawyers not only the means for locating precedential cases, but a “paradigm for thinking about the law itself” that influenced American lawyers until the development of online legal research systems in the 1970s. This article discusses questions raised by Berring’s scholarship, and examines the late nineteenth and early twentieth century legal environment in which the West digests were created and became essential research tools for American lawyers.
A presentation ceremony and panel discussion regarding Ginevra Peruginelli and Mario Ragona (Eds.), Legal informatics in Italy. Fifty years of study, research and experience (2014), will be held 14 May 2014 at the Italian Senate in Rome.
Dr. Peruginelli sends the following information additional information about the event:
To participate in the event (in Italian) one needs to register by May 9th at firstname.lastname@example.org .
We look forward to seeing foreign experts also this May in Rome.
The index of the Volume and English abstracts are available at:
Dr. Teresa Alsinet, Dr. Ramón Béjar, Dr. Lluís Godo, and Francesc Guitart, have published RP-DeLP: A weighted defeasible argumentation framework based on a recursive semantics, forthcoming in Journal of Logic and Computation.
Here is the abstract:
In this article, we propose a recursive semantics for warranted formulas in a general defeasible logic argumentation framework by formalizing a notion of collective (non-binary) conflict among arguments. The recursive semantics for warranted formulas is based on the intuitive grounds that if an argument is rejected, then further arguments built on top of it should also be rejected. The main characteristic of our recursive semantics is that an output (or extension) of a knowledge base is a pair consisting of a set of warranted and a set of blocked formulas. Arguments for both warranted and blocked formulas are recursively based on warranted formulas but, while warranted formulas do not generate any collective conflict, blocked conclusions do. Formulas that are neither warranted nor blocked correspond to rejected formulas. Then we extend the framework by attaching levels of preference to defeasible knowledge items and by providing a level-wise definition of warranted and blocked formulas. After we consider the warrant recursive semantics for the particular framework of Possibilistic Defeasible Logic Programming (RP-DeLP for short). Since RP-DeLP programmes may have multiple outputs, we define the maximal ideal output of an RP-DeLP programme as the set of conclusions which are ultimately warranted, and we present an algorithm for computing it in polynomial space and with an upper bound on complexity equal to PNP. Finally, we propose an efficient and scalable implementation of this algorithm using SAT encodings, and we provide an experimental evaluation when solving test sets of instances with single and multiple preference levels for defeasible knowledge.
In one example, the framework is applied to a parliamentary debate on economic policy, regarding which laws restricting the types of economic policies that can be implemented are treated as defeasible rules within the framework.
Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week’s summaries concern:
Professional misconduct in medicine / Assignment of copyright / Breathalyzer / Stalking / Punitive damages:
Yazdanfar v. College of Physicians and Surgeons (Ont.)
Medicine - Discipline for professional misconduct – Professional misconduct or conduct unbecoming a member – Standards of practice
A doctor, who qualified in family practice, focussed her practice on liposuction and breast augmentation at her out-patient clinic. The death of a patient following a liposuction procedure was the catalyst for an investigation involving a number of patients and ultimately discipline proceedings. The Committee of the College of Physicians and Surgeons of Ontario found that the doctor had repeatedly and knowingly breached . . .
Tremblay v. Orio Canada Inc.
Copyright – Transfer of copyright – Assignment – What constitutes
The defendant contracted with the plaintiff to continue the development of the defendant’s software (SAM). The plaintiff and his employees developed a modified SAM program. The defendant provided the source code of the modified SAM program to a third party developer who developed a reworked modified SAM program. The plaintiff sued the defendant seeking a declaration that (1) he owned the copyright in the developments and improvements made to the . . .
R. v. So (U.)
Criminal Law - Motor vehicles – Impaired driving – Breathalyzer or blood sample – Evidence and certificate evidence (incl. evidence tending to show)
The accused was charged with driving while “over .08” contrary to s. 253(1)(b) of the Criminal Code. At trial, the accused attempted to displace the Criminal Code presumption that the breathalyzer analysis was accurate. He argued that the approved breath sample instrument (an Intoxilyzer 5000C) was improperly operated because the technician did not follow certain procedures in the . . .
Ducharme v. Borden
Family Law - Domestic violence or exploitation – Anti-stalking legislation – Protection order – When available or appropriate
The applicant obtained a protection order under the Domestic Violence and Stalking Act to stop his former girlfriend, the respondent, from stalking him. After a review hearing, a judge set aside the protection order and awarded the respondent costs of $10,000 plus disbursements payable within six months. The applicant appealed.
The Manitoba Court of Appeal dismissed the applicant’s appeal from the decision to . . .
Chitrakar v. Bell TV
Damages - Exemplary or punitive damages – Violation of privacy
Chitrakar applied for relief against Bell TV under s. 14(1) of the Personal Information Protection and Electronic Documents Act (PIPEDA), because Bell TV ordered a credit report without his consent. The Federal Court allowed the application and awarded damages of $10,000 plus exemplary damages of $10,000.
Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79
1. CASE SUMMARY
Areas of law: Motor Vehicles; Legislation; Constitutional law; Charter of Rights-
-Provisions in Motor Vehicle Act establishing automatic roadside prohibition regime for motorists registering a failure on an approved screening device infringing s. 8 of Charter (unreasonable search and seizure) and not salvageable under s.1
Background: The petitioners were motorists who had received 90-day roadside driving prohibitions (”IRP”) under provisions in the Motor Vehicle Act (“MVA”) establishing an automatic roadside prohibition regime (“ARP”) after they had either refused to supply a sample of breath, or having supplied a sample, registered a fail on an approved screening device (“ASD”). The ARP regime was founded on an impaired investigation initiated under s. 254(2) of the Criminal Code which allows a police officer who has reasonable grounds to suspect that a driver has alcohol in their body to demand a breath sample. The petitioners challenged the constitutional validity of the provincial legislation, alleging that the ARP constituted criminal law and was beyond the legislative competence of the provincial government; they also argued that the challenged provisions violated their rights under the Charter, in particular s. 8 (unreasonable search and seizure), and 11(d) (presumption of innocence for persons charged with an “offence”). The chambers judge found the legislation did not encroach on the federal head of power over criminal law and was constitutionally sound except for the prohibitions and penalties resulting from a fail reading on an ASD. The judge found this part of the provincial legislation violated s. 8 of the Charter and was not saved by s.1; this finding, however, did not apply to refusal to provide a breath sample. The petitioners appealed and the province cross-appealed. In the interim, the province enacted amendments to the MVA intended to correct the constitutional defect identified by the chambers judge. The validity of those amendments was not at issue in the appeal.
Appeal decision: Appeal and cross-appeal dismissed. The chambers judge properly concluded that the challenged legislation was not criminal law. The ARP regime did not authorize an investigation into criminal offences. It required a peace officer who, in the course of a criminal investigation, obtained a fail, warn or refusal to blow to take action under the provincial legislation in the form of an IRP. The criminal investigation launched the provincial legislation. On obtaining a “warn” from the ASD, the police officer must follow the path prescribed by the provincial legislation. On obtaining a fail result, the officer had two choices: he could choose to take only the provincial path or both the federal and provincial path. The severity of the consequences did not move the impugned legislation into the federal sphere of criminal law. When viewed against the extrinsic evidence, Hansard and the legislative scheme itself, what might be seen as contra-indicators (the search, lengthy prohibitions, high costs and penalties), supported the conclusion that the impugned legislation was intended to create strict rules and deterrents to keep intoxicated drivers off the road in the interest of public safety public and was not a colourable attempt to legislate in the criminal field. The ARP did not violate s.11(d) of the Charter. In determining whether a person has been charged with an offence and whether the proceedings are criminal in nature, the focus of the inquiry is on (1) the nature of the proceedings rather than the nature of the matter giving rise to the proceedings; and (2) whether the consequences are truly penal. The chambers judge distinguished criminal/quasi-criminal proceedings from administrative proceedings and concluded that an IRP was not by its nature a prosecution since it is automatic at the roadside, the driver is not compelled to answer and does not result in a criminal record or allow a driver to be arrested. Rather, he properly concluded that the proceeding had to do with fitness to maintain a licence, that the ARP operated to remove a privilege, that the costs associated with an IRP were administrative consequences of registering in the fail range and were aimed at the prevention of harm, not to redress a wrong to society. However, the appeal court agreed that the ARP legislation, by referencing the ASD and the Criminal Code for purposes of issuing an IRP under the MVA, was legislation authorizing a search and seizure within the meaning of s. 8 of the Charter and was unreasonable to the extent it applied to a fail result. A motorist had no meaningful way under the legislation to challenge the results of the ASD and faced quasi-criminal charges and penalties or imprisonment under the MVA should he or she drive while prohibited; this fortified the view that a motorist could not be presumed to agree to provide a sample of breath, the results of which he or she had no ability to challenge. The legislation could easily have provided a reasonable review process allowing drivers subject to a lengthy IRP to challenge the result of the ASD. This aspect of the legislation could not be said to be a minimal impairment of a driver’s right to be free from unreasonable search and seizure and was not salvageable under s. 1 of the Charter.
2. COMMENT BY THE COUNSEL FOR THE APPELLANT, Shea Coulson
The Automatic Roadside Prohibition regime at issue in Sivia is the first of its kind in Canada. The implications of finding it valid provincial legislation and that is does not constitute an offence for the purposes of s. 11 of the Charter extend far beyond the impaired driving arena.
In particular dispute at the Court of Appeal was the importance of the practical effects of the ARP regime. Justice Sigurdson of the BC Supreme Court had found that as a matter of practical reality the majority of drivers were no longer being sanctioned under the Criminal Code for impaired driving offences. Instead, as a matter of policy both police and Crown Counsel pursued the administrative prohibition as they felt its penalties were sufficient for impaired driving offences without aggravating factors such as personal injury. This is the majority of cases. The administrative process also saved police, Crown Counsel and the Provincial Court a huge amount of time and money.
In the Court of Appeal the appellants introduced new evidence which was obtained from a freedom of information request and not contested by the Crown. The new evidence showed that reports to Crown Counsel for “simple” impaired driving offences (i.e. those without aggravating factors) had declined from 10,000 per year in 2009 to 2,000 per year in 2011, the first full year the ARP regime was in force. The pre-ARP yearly average RtCC’s were about 8,000 per year. Ultimately, there was no dispute that the ARP regime had replaced the Criminal Code in a practical sense.
The Court of Appeal did not give significance to this practical reality and rejected the argument that the legislation was designed implicitly to promote this outcome and thereby supplant the Criminal Code with a regime free of Charter rights in order to save time and money.
At the same time, the ARP regime has been designed in a manner that explicitly violates s. 11 of the Charter except for the threshold issue of whether it creates an “offence”. The Court of Appeal rejected the argument that the regime created an “offence”, relying on the Wiggelsworth and Martineau framework, particularly insofar the Court held those cases require examination of the appearance of the proceedings rather than their substance. The appellant raised several problems with this approach, but his arguments were rejected.
Combining the practical effects of the regime with the s. 11 outcome, it is now the case that in British Columbia most drivers essentially have no Charter rights when ‘accused’ of and sanctioned for impaired driving. This has been exacerbated by a decision of the B.C. Supreme Court holding that the adjudicators reviewing an ARP regime sanction (who are delegates of the Superintendent of Motor Vehicles) have no jurisdiction to consider the Charter: Williams v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1976.
Beyond the impaired driving sphere, the ARP regime provides a template for the province to regulate wrongful or criminal behaviour that generally, as a practical reality, does not give rise to imprisonment under the Criminal Code or a provincial offence provision. So long as the province creates an administrative regime that does not have the appearance of a criminal prosecution and does not create true penal consequences (which essentially means imprisonment), then it has a free hand to legislate away s. 11 rights as a practical reality. Creating incentives for police and Crown Counsel to pursue the administrative rather than criminal process will not, according to the Court of Appeal, make the regime ultra vires the province. This is because the province has been held to have a power to pass legislation designed to deter crime or regulate certain spheres of activity so long as the goals are not “punitive”. As an example, soon we may see traffic court removed to an administrative process before an adjudicator of the Superintendent of Motor Vehicles with no procedural or Charter protections.
It may be that the Supreme Court of Canada will be asked to weigh in on these issues.
Innovations with s. 8
The B.C. Court of Appeal’s decision in Sivia upheld a unique application of s. 8 by Supreme Court Justice Jon Sigurdson. Justice Sigurdson found that s. 8 required proper independent oversight of automatic sanctions stemming from searches performed roadside. In other words, because the pre-authorization requirements for a search are waived for impaired driving searches, there must be an after the fact process that ensures the sanction stemming from the search is valid. This review process must give the sanctioned individual a meaningful opportunity to challenge the sanction. This reasoning provides an opportunity to raise s. 8 issues in other administrative regimes that authorize searches but do not afford an effective opportunity for review.
Despite finding that the ARP regime violated s. 8, the B.C. Supreme Court declined to provide any remedy to the petitioner drivers, instead deferring the prospective declaration of invalidity for 6 months to allow the Legislature to respond. Drivers sought restitution of the fines and costs they were required to pay as a result of the sanction as well as compensation for lost income and correction of their driving record. The court denied these requests.
Given the Court of Appeal upheld the Supreme Court’s section 8 ruling, the remedies issue, which is under appeal, is now set to come before the Court of Appeal. A successful remedies appeal would require the province to pay back millions of dollars to drivers sanctioned under the old, unconstitutional regime.
Chaque semaine, nous vous présentons un résumé d’une décision d’un tribunal québécois qui nous est fournis par la Société québécoise d’information juridique (SOQUIJ) et ayant un intérêt pancanadien. SOQUIJ relève du ministre de la Justice du Québec, et elle analyse, organise, enrichit et diffuse le droit au Québec.
Every week we present a summary of a decision by a Québec court provided to us by SOQUIJ and selected to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
Faillite : Il n’y a aucune raison d’importer en droit canadien le concept américain de «contribution substantielle», l’article 11.52(1)c) de la Loi sur les arrangements avec les créanciers des compagnies permettant à une partie de requérir une sûreté afin de garantir les honoraires professionnels d’intervenants faisant preuve d’une participation efficace au processus de restructuration.
Homburg Invest Inc. (Arrangement relatif à), 2014 QCCS 980
Juridiction : Cour supérieure (C.S.), Montréal, 500-11-041305-117
Décision de : Juge Louis J. Gouin
FAILLITE ET INSOLVABILITÉ — arrangements avec les créanciers — remboursement de frais et débours d’un créancier — fiduciaire — acte de fiducie — notion de «contribution substantielle» — droit américain — nécessité d’une entente préalable — débiteur — contrôleur — approbation par le tribunal — ordonnance initiale — suspension des procédures.
Requête pour le paiement de frais et débours. Appels du rejet de preuves de réclamation. Rejetés.
Soutenant qu’elle a apporté une contribution substantielle au succès de la restructuration des débitrices, la requérante, fiduciaire aux termes d’actes de fiducie, réclame le paiement de 100 % des frais et débours qu’elle a engagés depuis la délivrance de l’ordonnance initiale. De façon subsidiaire, elle et l’autre requérante demandent que cette réclamation soit incluse à leurs preuves de réclamation.
La conduite du fiduciaire constituait soit un positionnement agressif au bénéfice de parties autres que les détenteurs d’obligations, soit l’exécution des tâches usuelles d’un fiduciaire aux termes d’un acte de fiducie. Le fiduciaire n’a donc pas apporté de contribution substantielle à la présente restructuration. De toute façon, il n’y a aucune raison d’importer en droit canadien le concept américain de la «contribution substantielle». En effet, l’article 11.52 (1) c) de la Loi sur les arrangements avec les créanciers des compagnies permet à une partie de requérir une sûreté afin de garantir les honoraires professionnels de tiers faisant preuve d’une participation efficace au processus de restructuration. Comme la requête dont le tribunal est saisi s’assimile à une telle demande, il y a lieu d’analyser cette dernière aux termes de cet article. Or, d’une part, le tribunal ne saurait y faire droit une fois que les créanciers se sont prononcés en faveur d’un plan d’arrangement puisque cela modifierait la distribution qu’il prévoit. D’autre part, avant d’engager ou de continuer à engager des frais dont elle entend demander le remboursement, une partie devrait convenir avec la débitrice et le contrôleur des modalités applicables à sa «participation efficace» au processus de restructuration. Celles-ci devraient ensuite être approuvées par le tribunal, ce dernier tenant alors compte de plusieurs éléments. Quant à la demande subsidiaire des requérantes, il est vrai que l’acte de fiducie prévoit le remboursement de leurs frais et débours. Cependant, cette obligation a été suspendue par l’ordonnance initiale. Ainsi, pour que des frais engagés après la délivrance de cette dernière soient remboursés, il aurait fallu qu’une entente à cet effet intervienne entre les requérantes, les débitrices et le contrôleur, le tout sujet, encore une fois, à l’approbation du tribunal.
Le texte intégral de la décision est disponible ici
Dr. Helena Haapio, Professor Dr. Thomas D. Barton, and Stefania Passera have posted Innovating Contract Practices: Merging Contract Design with Information Design, forthcoming in Thomas D. Barton and Gerlinde Berger-Walliser (Eds.), Reflection and Innovation: Finding and Celebrating Excellent in Contracting.
Here is the abstract:
The work and expertise of contracts professionals are vital to the operations of modern organizations and the global economy. Strategic planning as well as everyday transactions can be conceived, developed, secured, and implemented through contractual relationships. This accelerating importance and functionality of contracts is not matched, however, by their traditional format or drafting process. Indeed, their mission-critical value is not fully appreciated by decision makers. Many opportunities offered by contracts remain unexplored if contracts are seen merely as legal tools needed only in case a dispute arises. A fresh approach to contracts and contracting is called for.
Drawing on the Authors’ research into user-centered contract design, contract visualization, and proactive contracting, this paper explores how contract practices can be innovated. The early results of our work in progress indicate that information design, embedded into contract design, has the potential to change fundamentally the way organizations define, shape and manage their trading relationships, offering unexplored opportunities for both research and practice.
As flat fees become more popular, one of the ways lawyers often “try out” flat fees is by offering to cap their hourly fees. For example, a lawyer might offer to bill $200 per hour for a small lawsuit, but no more than $10,000, total. This is a rookie mistake. If the lawyer bills 50 or fewer hours, he will merely be paid for his work the same as if there were no cap on fees. But if he bills more than 50 hours, he gets the short end of the stick.
Contrast this with a true flat fee where the lawyer charges $10,000 whether she spends 10, 50 or 100 hours on the representation. If she spends only 10 hours, she has come out ahead. If she bills 50, she has come out even. And if she bills 100, she has gotten the short end of the stick.Capped Fees Are a Lose-Lose Proposition
With a flat fee, the risk is more or less evenly distributed. The client’s risk is that the lawyer will be more efficient than an estimate based on hours worked. The lawyer’s risk is that she will be less efficient.
With a capped fee, there is no upside for the lawyer. The best-case scenario is he gets paid for exactly the hours he worked. The worst-case scenario is that he works more than 50 hours and does not get paid for all that time. The client can’t lose, and the lawyer can’t win. He can only tie, at best.With Capped Fees, the Client Always Loses
Ultimately, if the lawyer “loses” in a capped-fee situation, so does the client. A lawyer who blows past the fee cap may start losing interest in a case he is no longer getting paid for, and start looking for an easy way out.
The same thing could happen in a flat-fee scenario, but it is less likely. First, billing flat fees means separating time and value. While time absolutely factors into value, it is not the measure of value. Lawyers who charge flat fees generally give up on tracking time, or at least worry less about time. The concept of “going over” the fee does not really apply.
Second, the lawyer’s upside is also an incentive to find a more efficient way to handle the representation. Assuming a moderate level of legal competence and creativity, a lawyer charging flat fees should be able to come out well ahead of a lawyer billing by the hour, even while delivering greater value to flat-fee clients.
Third, charging flat fees also means carefully defining the scope of representation. If a case blows up in your face, you should be able to go back to your client for more money. That way the fee remains fair to everyone, and nobody gets screwed.
But it also bears repeating that flat fees should just be one tool in your billing toolbox. The point is to deliver greater value to clients and do a better job of aligning incentives. If you cannot do that with a flat fee in a particular matter, don’t use one.When Capping Your Fees Might Make Sense
Many smart lawyers offer capped fees all the time, and are perfectly happy doing so. But there is an important difference in the way they cap their fees. They are not capping fees as a way of trying out flat fees. They are capping fees as a way of reassuring the client that legal fees will not spiral out of control.
Here is the difference. A lawyer capping fees as a way of trying out flat fees will cap fees at the estimated cost of the representation. If the lawyer and the client believe a Series A financing round should take about 50 hours at $200 per hour, the lawyer will cap his fees at about $10,000 — maybe with a slight cushion, just in case. A lawyer capping fees as a way of reassuring the client will cap the fees at $15,000 or $20,000, instead. In other words, she will pick a safe cap that she is extremely unlikely to run into. It is more like a backstop.
The risk technically remains entirely on the lawyer, but there is a different reward: the client feels reassured, and signs the retainer.
With this one exception, capping fees as a way of trying out flat-fee billing is a pretty bad idea — for lawyers and clients.
Featured image: “Open 5 inch butt of an industrial fire hydrant” from Shutterstock.
Why Capping Hourly Fees is Usually a Bad Idea is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
In February, Twitter announced a new program offering researchers the chance to get free data for their studies. Apparently the idea has broad appeal: The company received 1,300 proposals from more than 60 countries, according to a blog post revealing the six institutions that have won the first round of grants.
The research projects will study “the diffusion and effectiveness of cancer early-detection campaigns” and the “happiness of cities,” among other things. The two American winners are the Harvard Medical School and the University of California at San Diego. Check out the full list here.
Deploy to prod immediately. 17:13:57, 2014-04-17
Like most youngsters, the Digital Public Library of America has been growing fast. Officially a year old, it now encompasses more than seven million items, three times what it started with 12 months ago.
Designed to be a gateway to information rather than a final destination, the DPLA doesn’t actually ingest digitized books, manuscripts, photos, moving pictures, recordings, or other materials. Instead, it works with a nationwide network of institutions to aggregate the metadata that describes their digitized holdings. Bringing such information together makes it easier for users to find those collections.
The 1906 photo above, of a firecart in a parade in Murray City, Utah, is an example of the material DPLA points to. It’s in the Murray, Utah, Museum and is included via Mountain West Digital Library.
Digital libraries around the country function as service hubs to help collect and process records; the DPLA also has partnerships with content hubs—large digital libraries, museums, and archives like the HathiTrust Digital Repository and the Smithsonian—that feed it records directly.
The young digital library marked several developmental milestones this week: It added six major partners as content or service hubs, including the California Digital Library, the Connecticut Digital Archive, the U.S. Government Printing Office, Indiana Memory, the Montana Memory Project, and the J. Paul Getty Trust. The birthday announcement also included the news that the New York Public Library has now made more than a million of its digitized holdings accessible through the DPLA—a growth spurt of almost 20 percent.
The DPLA has also doubled its staff, from four to eight, with two more positions to be added soon. More than a million people have visited the DPLA site, and its open API, or application programming interface, has had nine million hits.
In an open letter to mark the occasion, Dan Cohen, the library’s executive director, celebrated the “tremendous momentum” of the digital library’s first year. “DPLA is as much a social project as a technical project, and we simply couldn’t have achieved what we’ve achieved without the incredible collaborative spirit that has coalesced around this wonderful idea of bringing together the riches of America’s collections and making them freely available to the world,” Mr. Cohen wrote.
“Scores of contributors at our service and content hubs, on our board and committees, and from libraries, archives, museums, and cultural-heritage sites across the country have been enormously generous with their time and ideas,” he added.
Like a proud but pragmatic parent, Mr. Cohen also noted that the DPLA has a long way to go before it’s fully grown. “As good a first year as we have had, however, we have so much left to do,” he wrote. The DPLA aspires to serve the nation, but “there are still 36 states that are not covered by our service-hub network, meaning that smaller institutions in those states don’t have an on-ramp.”
He also described a need to cover other gaps, such as including more audiovisual materials and more e-books, as well as a desire to work more closely with public libraries.
[Image: 1906 Firecart in Parade, Murray City, Utah. Murray (UT) Museum via Mountain West Digital Library.]
Passwords are often the weak link in data security. You can build the most secure system in the world, but as soon as someone sets their password to 12345, you might as well leave the front door open.
Good passwords are essential to data security, and this article has everything you need to know about creating and keeping track of good passwords.Index
First, why are good passwords important? In 2013, Ars Technica gave three experts an encrypted, 16,000-entry password file. The “winner” of the contest cracked 90% of the passwords. Even the loser cracked 62% of the passwords in a few hours. When a breach at a major corporation happens, hackers gain access to hundreds of thousands (sometimes millions) of hashed (encrypted) passwords. And they can crack the vast majority of them in under a day, compromising those users’ accounts on the target website and any other website with the same password.
You want to have one of the passwords that doesn’t get cracked so you don’t wake up a few days later to an email receipt because Amazon just billed you for 1,000 tins of uranium ore and shipping to someone named Wong-Chu in Southeast Asia. Or the entire Xbox game catalog and shipping to a teenager in Nebraska.What Makes a Good Password
A good password is unique, not found in the dictionary, long, and contains letters, numbers, and symbols.
Unique means not using the same password for multiple sites. If you reuse the same password across multiple sites, someone who gets ahold of your password for one of those sites can access your accounts on all the others. For example, if there is a security breach on the Target website, and you reused that password for your Gmail account, both have been compromised.
In practice, it is probably okay to share some passwords between sites that do not hold much personal information and that have a low potential for doing you harm if hacked. It won’t do anyone much good to have your NYTimes.com password, for example, even if you also use it on Pinterest. But never reuse passwords for important things.
Not found in the dictionary means don’t use real words. Or real names, for that matter. When attempting to decrypt passwords, one of the first things a hacker will do is run through every word found in a dictionary, common names, known passwords, and combinations of all of those things. You can use nonsense words, or you can change some letters to symbols, like replacing L with 1, or A with @. This is probably the easiest way to get numbers and symbols into your passwords, too.
Long is sort of a moving target, but 12–14 characters is a good length. More is better — to a point. At around 22 characters, brute-force decryption apparently becomes effectively impossible.
The password scheme popularized by Randall Munro in his webcomic, XKCD, may no longer be good advice, by the way, according to security expert Bruce Schneier. Hackers are on to it, he says in his own guide to good passwords.1Extra SecurityScramble Your Username
Consider scrambling your username, too. Or if you must use an email address and you have a Gmail account,2 you can add a code to the email address so that your plain email address won’t work. For example, if your email address is email@example.com, you could use firstname.lastname@example.org to make it harder for someone to figure out which email address goes with your account. You could even use something simple like the domain name of the website (e.g., email@example.com), which would be easier to remember and still better than your “naked” email address.Multi-Factor Authentication
Multi-factor authentication (usually just two factors, actually) bolsters security by pairing something you know — your password — with something you have — usually your phone. When you log in to your account, you must enter your password and a code sent to your phone or generated by an app or key fob. Some services (Clio, for example), can also send the code to your email address. With two-factor authentication turned on, a hacker needs more than just your password to access your account.
You should enable two-factor authentication for anything you care about, like your email account, password manager, and practice management software.Biometrics
The current trend in authentication seems to be biometrics — fingerprints, retina scans, etc. The iPhone 5S, for example, includes Touch ID, which lets you unlock your phone (and do a few other things) with your fingerprint. While Touch ID (which is currently the most-advanced biometric system on consumer hardware) is definitely more secure than nothing, it is not particularly difficult to crack. You leave your fingerprint everywhere you go, and as the Chaos Computer Club demonstrated soon after the iPhone 5S was released, Touch ID can be fooled with basic household items like a digital camera, laser printer, and white glue.
Biometrics may be the future of authentication, but there are many problems left to solve. You cannot get new fingerprints or retinas if your old ones are “cracked,” for example. For now, biometrics are not superior to a good password, and they seem to be easier to crack if someone is motivated.Password Managers
The best passwords are hard to remember, and even harder to type on a smartphone. And the more you are asked for your password, the more likely you are to use a shorter password that is easy to remember. So banking apps, for example, which typically demand your password every time you want to check your balances, are — perversely — discouraging you from using good passwords. One solution is to use a password manager like LastPass, 1Password, or KeePass. Or you could actually just write them down on paper.
Password managers encourage good-but-hard-to-remember passwords because you don’t actually need to remember them. You just need to remember one password: the one you use for your password manager, which should be really good and long and hard to crack, plus two-factor authentication. Everything else can be 22+ totally-random characters.
LastPass and 1Password3 are cloud-based password managers that sync your passwords between your browser, phone, tablet, and the cloud. This makes them an extremely convenient way to get at all those good-but-hard-to-remember passwords when you need them.
KeePass is a free, open-source, and cross-platform password manager. There are even third-party KeePass apps that can import your passwords from Dropbox to your phone or tablet. KeePass is a good option, but LastPass and 1Password seem to be more secure and more convenient.
Finally, writing down your passwords may seem old-school, but it is actually quite safe. Bruce Schneier recommends it, and Vox recently wrote about why it might actually be the best way to keep your passwords. Assuming you don’t lose the paper on which you wrote your passwords.The Future of Authentication
The password is far from perfect, and many call it broken. That’s why there are several efforts underway to “kill” the password. Apple’s Touch ID is one, and The Verge recently reported on the FIDO Alliance, which includes companies like Google, Microsoft, Bank of America, and MasterCard. The FIDO alliance is pushing for zero-knowledge proof authentication — a way of authenticating you without holding onto your credentials. If it works, you could use a single device you carry with you to authenticate yourself across the web.
If FIDO catches on in the next few years, it may render this entire article obsolete. For now, make sure you are using good passwords for everything that matters.Updates
2014-04-22 Edited the “What Makes a Good Password” section and added a footnote to reflect the debate over Munro’s password strategy.
This tip works fine with Google Apps for Business accounts, and it may also work with non-Gmail accounts. Try it and let us know. ↩
Passwords: a User Guide for Lawyers and Law Firms is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Dr. Adam Wyner of the University of Aberdeen has posted slides of his presentation entitled Annotating, Extracting, and Linking Legal Information, given 11 March 2014 at the University of Edinburgh.
Topics covered in the presentation include: