The Religious Neutrality of the State on the Agenda Again

slaw - Thu, 08/27/2015 - 08:00

No matter what government will lead Quebec, religious neutrality of the state seems to be common ground among the political parties. Yet the media and the rest of Canada don’t seem to make much of it unless it is brought up by the Parti Quebecois. Since the current Liberal government introduced Bill 62, An Act to foster adherence to state religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies, in the national assembly on June 20, 2015, not much has been said about it. However, when the parti Quebecois tabled a similar bill in 2013, outrage was heard from lawyers, the public and other stakeholders all across Canada.

About Bill 62

The Liberals’ proposed religious neutrality law, like the PQ’s Charter of Secular Values before it, aims to establish measures to promote respect for the religious neutrality of the government (the state).

It specifically provides that government and public agency staff should exercise religious neutrality in the exercise of their functions, which implies not favouring or discriminating against a person because of membership or not in a specific religion. Unlike the PQ’s proposed law, Bill 62 doesn’t mention dress codes of certain religious observances. I guess that makes the bill more acceptable. It seems to give the media less to talk about.

The Bill would exempt staff in government agencies that offer spiritual care services or are responsible for providing religious education.

While avoiding reference to the clothing of any particular religion, Bill 62 does reiterate the previous bill’s requirement that government staff not cover their faces when performing their work, unless the work requires it.

Well! This may be subtler, but the effect is the same: all face coverings for religious purposes will not be allowed while working for the government. Many people will be forced to choose between their jobs and their creed. Many others who insist on wearing conspicuous religious symbols will be eliminated from the public service job pool.

Bill 62 also provides that people receiving in-person service from government staff must have their faces exposed.

The Bill does establish conditions in which accommodations for religious reasons may be granted and the specific elements that must be considered when dealing with certain accommodation requests. However, the government must refuse to accommodate if, given the context, reasons regarding security, identification or the required level of communication warrant it.

The wording may be different, but I don’t see the difference between this bill and the one tabled by the Parti Quebecois, which caused so much outrage. This new Bill would still make it mandatory for individuals to have their faces exposed when giving or receiving services from the government and public sector.

The Bill further specifies that the state’s religious neutrality would not apply to iconic places, names or items associated with the cultural heritage of Quebec, including religious cultural heritage, which reflects its historical course. Thus, the crosses at the national assembly or atop Mount Royal will remain, no matter what people say about a double standard!

Special measures would apply to educational childcare services to ensure that admission does not require children learn a belief, a dogma or practice of a specific religion. In addition, organized activities by subsidized childcare providers would have to be free from religious or dogmatic characteristics. Thus, Bill 62 would still require the minister responsible for the Educational Childcare Act to develop an implementation policy for institutions that provide childcare or subsidized home childcare providers under the Act.

Bill 62 and Bill 60: same intention, same effect

In 2013, immediately after the PQ tabled Bill 60, the Charter affirming the values of state secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, the federal government stated it would file a court challenge on grounds that the charter was discriminatory and incompatible with Canada’s Charter of Rights and Freedoms and Quebec’s own charter of rights.

This time around, Canada’s Multiculturalism Minister, Tim Uppal, weighed in on Bill 62 by saying:

“We broadly support Quebec’s legislation regarding the uncovering of faces for giving and receiving public services.”

Uppal added that the federal Conservatives are thinking of tabling a similar bill:

“Our government will be moving forward in the coming days with legislation with respect to the face coverings at citizenship ceremonies, and we will consider what other measures may be necessary.”

However, you know what happened: an election was called, stalling progress on any federal religious neutrality law.

Conclusion

Public consultations on this model of secularism are currently being held, but again, I ask… where is the outrage we heard two years ago over the PQ’s charter? Why the silence today? Is it simply because this Bill does not explicitly demand restraint in religious expression for public servants, including symbols and clothing?

Some say Bill 62 is more acceptable because it does not go as far as Bill 60. For instance, the public seems to think the new Bill does not ban all religious symbols. That’s not clear. What is clear is that the difference between the two Bills is very subtle. One is more direct and the other hides its true intention. And the effect will be the same: institutionalized discrimination in the name of state neutrality.

I will take direct anytime!

Categories: Teknoids Blogs

5-Step Legal Marketing Plan, Step 4: Marketing Strategies

The Lawyerist - Thu, 08/27/2015 - 06:12

Choosing the methods you will use to promote your law firm is one of the most concrete stages of a marketing plan. But unless you spend time on the first three steps, you will not have the essential data you need to create a smart, data-driven marketing plan. If you have read the prior posts, you’ve defined your niche(s) and ideal customers, identified your strengths and opportunities, and developed your unique competitive advantage.

Now, let’s put together concrete ways to get clients.

Advertising

The most obvious method of getting clients is advertising. Getting advertising right among today’s skeptical audience is a big financial investment. But it also shows that a firm means business.

However, most traditional forms of advertising — advertisements in newspapers and in the Yellow Pages, for example — feel a little dated. The best form of advertisement in the Internet Age is content marketing — giving people useful information that provides them with value so that audiences associate your business with quality. Traditional advertising invades and interrupts, while content marketing is made up of actual useful content, sponsored by your firm that promotes your reputation.

Writing recurring columns in local or national publications is a fairly simple way of gaining “expert” status and being seen as a resource. Not to mention, small articles and interviews are often picked up and spread across the Internet.

Make Appearances

Related “How To Give a Killer CLE Presentation”

So much of marketing is just showing up. You can show up to lead workshops, speak at classes or for associations, or get quoted as an expert on a subject in a publication. This strategy can be particularly effective for excellent public speakers. People who are dazzled by your knowledge and ability to lead a room will remember you when they need a lawyer.

One key to making a good impression is actually packing your workshop or CLE with valuable information. Do not worry about giving away too much information. Show audiences how insightful you are and how helpful and capable you can be in your field. These appearances are not just events where you tell people to hire you. Giving people some sort of value will make them remember you.

Brainstorm on what you feel comfortable speaking about. What problems can you solve for people just by laying out a plan or delivering some information? Also be prepared with a game plan for following up after the appearance.

Networking

Related “How To Network: Get out and Do Things. With People.”

The easier, less formal method for interacting with people to drum up business is networking. If your forté is one-on-one interaction rather than speaking to a room, invest in conferences, associations, and political events that will allow you to show off your people skills. Do not think only in terms of where lawyers congregate. Think instead about the associations and events that attract your ideal client.

Avoid slipping into all fun and no work by setting a clear goal for your efforts. At a conference, your goal might be to find a new associate. At an exclusive country club, your goal may be to get your card into people’s hands or to mention that you are a lawyer specializing in a certain practice area. However, keep a balance between work and friendliness. Try to make professional friends and take the connection offline.

In any networking situation, the main goal is to develop relationships with people who may refer you to others. The point of networking is helping others who may one day help you.

### Online Presence

Related “Be Less Awful About Your Social Media Use”

Customers expect to be able to find your website as well as seeing reviews of your service through sites like Yelp or Avvo. They expect to see your firm’s lawyers mentioned in articles or in association with reputable organizations. Build an online presence with a website, blog, and some social media accounts where you can draw people to your page with consistent reminders that you are still in business.

Advertising on the web can be a complicated process because of the hidden skills that go into crafting SEO-heavy content that will cause your page to rank well in search engine results and attract certain audiences. Hiring a professional who can design and maintain your online presence will free up your time to focus on higher level tasks.

Developing Specific Marketing Strategies is Important

You’ve probably seen thriving businesses that have made you stop and wonder how they can be doing so well despite their poor service. The answer is marketing. Great marketing can make or break a business. While a mediocre firm with great marketing can succeed for a while, it is also true that a phenomenal firm can fail without marketing. Every firm must invest in the marketing strategies best aligned with the firm’s competitive advantage and effective with their ideal clients.

Next month’s post will focus on how to pay for all of these excellent — but often expensive — marketing strategies.

Featured image: “Man with a Note and Strategy Concept” from Shutterstock.

5-Step Legal Marketing Plan, Step 4: Marketing Strategies was originally published on Lawyerist.

Categories: Teknoids Blogs

Adjudicators and Term Limits

slaw - Thu, 08/27/2015 - 06:00

Adjudicators who are appointed by cabinet order (variously referred to as Order in Council (OIC) or Governor in Council (GIC) appointees) have very little job security, beyond the term of their appointment. Historically, a reappointment was never guaranteed and the reasons for not being renewed in your position were not provided. The difficulty with a non-transparent system of renewal is that no one (including the adjudicator) knows the reason for a non-renewal.

Ontario instituted a new process for reappointments (or renewals) in 2006. The major reform was to limit appointments to ten years, subject to the recommendation of the Tribunal chair. The usual progression has been an initial 2-year term, a renewal for 3 years and a final renewal of 5 years. The only exception is for “exceptional circumstances in the public interest”. The full effect of this policy will hit the Ontario adjudication community in 2016, although the effects are already starting to be seen. Concerns have been raised about the policy and its impact by the Society of Adjudicators and Regulators (SOAR), the Ontario Bar Association and Ontario’s Ombudsman. So far, the Ontario government remains steadfast in its commitment to the policy.

A spokesperson for the government set out the rationale for the 10-year rule: “regular membership renewal fosters a diversity of perspectives, continually refreshes the appointee roster, and provides other qualified individuals with the opportunity to serve”.

SOAR conducted a study on the impact of the directive on term limits in February of this year. It focused on the likely impact of the Directive on larger adjudicative Tribunals (20 or more OIC appointees). SOAR gathered information from the Chair or Executive Director of the 17 identified tribunals. The study noted that some Chairs “see advantages” to term limits, while others believed that any advantages were outweighed by the sudden loss of their most experienced adjudicators.

The Directive does not provide for staggered implementation, so some Tribunals will suffer a loss of over 50% of their current complement of adjudicators. SOAR concluded that the Tribunals that will lose between 47% and 60% of their members as a result of the Directive are: the Workplace Safety and Insurance Appeals Tribunal; the Ontario Labour Relations Board; the Landlord and Tenant Board; the Consent and Capacity Board; the Human Rights Tribunal of Ontario; the Social Benefits Tribunal and the Criminal Injuries Compensation Board. It noted that these Tribunals are ones that require a high degree of subject matter expertise and have “historically relied on a cadre of experienced, long-term appointees”.

SOAR raised a number of implementation concerns related to how quickly those not renewed can be replaced (there have been reports that the appointment and re-appointment process in Ontario has slowed considerably in the past few years). SOAR also raised concerns about the vagueness of the exception to the rule (“exceptional circumstances in the public interest”) and noted:

In the absence of a clear explanation for the application of the exemption, the public and the uses of the tribunal may also not have confidence that the exemption is applied fairly. This, in turn, could lead to a lack of confidence in the independence of decision-makers.

SOAR made a number of recommendations relating to the implementation of the term limit Directive. One of the recommendations was that consideration be given to the alteration of the directive for those tribunals that require its adjudicators to have a particularly high level of subject-matter expertise and adjudicative experience, including exemption for some tribunals.

In June, Adam Chisholm and Paul Boshyk of McMillan, noted that there was “surprisingly little discourse on the impending changes that Ontario’s tribunals … will face”. Since that time, there has been more public discussion of the potential impact on the delivery of adjudication services in the province.

In an interview with the Law Times, the SOAR vice-president elaborated on SOAR’s concerns:

It will remove some of the most experienced adjudicators — the ones who are given the most complex cases to determine. It will remove the mentoring quality that they bring to more junior adjudicators. Unless the government ramps up or speeds up its appointment process, it will leave a bunch of vacuums in tribunals beginning in early 2016.

I think the government should stop and take a breath. I think they should perhaps think about either staggering how they want to implement this, or offer some exemptions to it for particular tribunals that rely on expertise, and generally have more of a dialogue with the administrative justice community.

In his annual report, the Ontario Ombudsman supported the concerns of SOAR and noted concerns with the potential for shortages in members on some tribunals and an overall decrease in the number of tribunal members with valuable experience. The Ombudsman reported that he had expressed serious concerns to the government about the need for careful planning to mitigate the impact of this rule on administrative tribunals and their operations.

The Labour and Employment Law and the Workers’ Compensation Sections of the Ontario Bar Association sent a joint letter of protest to the Ontario government about the policy.

The Law Times, in an editorial, stated that the government’s goals “are entirely reasonable” but that some flexibility was required in the short term. Chisholm and Boshyk also noted that “at first blush, this may seem like a positive directive” but noted the implementation issues highlighted by SOAR.

Ron Ellis has observed (paywall) that term limits also demonstrate that the government is not interested in career adjudicators. In a comment on the Law Times article, David Mullan writes:

The Divisional Court presumes that the province’s tribunals are experts. Appointment term limits not only discourages those who wish to make a career of administrative justice service but also deprives tribunals of the very benefits of experience and understanding that justify curial deference. This is a thoroughly bad idea.

There have been extensive debates about term limits on boards of directors in the business world. One of the concerns about long tenure on boards of directors is a loss of independence. One commentator noted that despite the potential benefits of mandatory director refreshment, “there is no strong indication that long-serving directors are not independent”. A “one-size-fits-all” approach to term limits on company boards would result in removing experienced, knowledgeable board members arbitrarily. It is also noted that long-tenured directors are often the most knowledgeable and offer stability, particularly during changes in senior management.

The Canadian Coalition for Good Governance, in submissions to the Ontario Securities Commission relating to women on boards, stated that it believed that a “robust evaluation process rather than term limits or retirement age is the best means of ensuring high quality board members, but perhaps boards will need to impose term limits or retirement ages in order to refresh themselves.” The Institute of Corporate Directors is also wary of arbitrary term limits. The ICD agrees that voluntary term limits can “act as a backstop against excessive tenure lengths”. However, mandatory term limits “could also be counter-productive to the good governance of Canadian organizations”:

Term limits are a blunt tool and, without flexibility, they eliminate effective as well as non-effective directors. For this reason, we believe boards must retain discretion to preserve vital institutional memory of high performing and contributing members.

On some boards, we have also observed that term limits can have the effect of replacing “tough conversations” with directors who no longer add value to the organization, therefore obviating the accountability inherent in identifying and addressing weaknesses. Boards should not “wait out” a poor director’s term, and instead, should be prepared to ask them to resign before their terms are finished.

There is strong support for term limits by some in the business community. Term limits have been introduced by major banks in Canada. The Bank of Montreal has a 15-year term limit. Robert Prichard, chairman of Bank of Montreal, justified the Bank’s term limits as an appropriate focus on renewal: “Even when all the directors are performing well, some renewal is desirable. A new director often brings fresh insights to the business and its governance.”

There have been criticisms of term limits on non-profit or charity boards of directors. Kim Jonker and William F. Meehan, two experts on board governance, state that they believe in limiting terms – but not in term limits. They suggest that each year, board members should evaluate their own, and each other’s, commitment to the organization. It is difficult and uncomfortable to have those conversations, especially with non-contributing members, but: “the alternative of imposing formal term limits will have the unfortunate effect of forcing out board members who continue to contribute at a high level.”

Meehan later noted that term limits “throw the baby out with the bathwater” and “no term limits without an aggressive governance committee leads to swampy bathwater.”

On paper, the British Columbia model for reappointment decisions addresses some of the concerns about renewal, without throwing the baby out with the swampy bathwater. Appointment Guidelines clearly note that reappointments are not guaranteed, but that an appointee may be considered for reappointment if performance has been satisfactory and there are “no other considerations that would militate against the reappointment”. The guidelines set out the factors for chairs to consider in assessing performance of adjudicators. In addition, the guidelines require the chair to balance “the benefits of expertise gained through experience against the fresh views that new appointees can bring to the tribunal’s work”. Chairs are also reminded in the guidelines of the government’s commitment to merit as the basis for all tribunal appointments and that “positions should be filled by candidates with the best qualifications to meet the tribunal’s requirements”.

However, it is not clear that the guidelines are always followed.

Some adjudicators will retire at the end of their terms. But for those of us who, against all logic, have chosen a career as an adjudicator there are significant challenges. Career adjudicators need to take control of their careers, and unfortunately it is not in the self-interest of Tribunals that they work for to assist. The kind of training and skills development needed may lead to good adjudicators moving on prior to the end of their terms, not something that Tribunals want. Some of the activities that can assist with networking and career development are either discouraged or prohibited. Activities such as speaking at conferences or engaging in social media, for example, are often subject to restrictions.

In addition, training in other areas of substantive law is not generally in the interests of a Tribunal. Ontario is experimenting with cross-appointments to other tribunals and this may allow for a longer career for an adjudicator but this is not yet an extensive practice.

In the short-term, the disruption caused by the sudden departure of adjudicators – and the loss of corporate memory and experience – will have to be managed by Tribunals. The hope remains that the government will use the “exceptional circumstances” provision in the Directive as a safety valve to slow the transition to manageable levels.

In the end, things will remain the same for adjudicators. In every jurisdiction they face job uncertainty. This is a challenge adjudicators must rise to by taking the initiative in managing their adjudication careers.

Categories: Teknoids Blogs

Briefs: Police Computers, Drone Future, RBG Nails, Etc.

The Lawyerist - Wed, 08/26/2015 - 19:26

The Oakland PD uses a computer running Windows XP with a paltry 80GB hard drive to store license plate photos — and ran out of space like your parents on vacation. The upside is they will stop trying to store license plate data forever. [Ars Technica]

Ten (apparently) reasons visitors leave your website:

  1. Bad or dated design
  2. Poor content
  3. Information is lacking
  4. It looks terrible on a phone
  5. Annoying stuff (pop-ups, auto-playing videos, etc.)

Click the link for the full list. (Or hey, get our guide and you won’t have these problems.) [VinciDigital]

Lawyer v. Yelp. Again. Lawyer is going to lose. Again. [Popehat]

The future if drones become ubiquitous. (It sounds horrible, but merits consideration if you plan to submit sci-fi to our short fiction contest next year.) [Gizmodo]

Get a Notorious RBG manicure. You know you want one. [Above the Law]

Ubuntu did a dumb thing with its disk encryption implementation, but it’s fixed now. [Cyber Smashup]

If you use Dropbox for Business, Sookasa can scan users’ accounts for files that violate your security policy. [Sookasa]

Briefs: Police Computers, Drone Future, RBG Nails, Etc. was originally published on Lawyerist.

Categories: Teknoids Blogs

My Twitter Digest for 08/25/2015

<CONTENT /> v.5 - Wed, 08/26/2015 - 14:30
Categories: Teknoids Blogs

How Cross-Examination Bullying Can Wreck Your Case

The Lawyerist - Wed, 08/26/2015 - 09:11

When a lot of lawyers think of cross-examination, they think of a fight-to-the-death cage match between the lawyer and the witness. They think of scenes like these from prosecutor Juan Martinez’s cross-examination of Jodi Arias:

Those of you who don’t want to do cross-examination like this can breathe easy—there’s a better way. You’ve guessed it; Terry MacCarthy says it best:

To improve and to change your thoughts on cross-examination, I suggest you seek, in cross-examination, to:

Look Good

Tell a Story

Use Short Statements

MacCarthy on Cross-Examination, pg. 5

How does the Jodi Arias cross-examination meet this test? Looking at just the first section of at the snippet above, we watch this happen:

  •  Juan Martinez’s question (at 0:10) “The messages, what did they say?” allows Ms. Arias to tell her story—and she jumps at the chance;
  • He loses control of Jodi Arias and quibbles with her about whether she was “offended” or “hurt” by her boyfriend’s text messages;
  • He looks like a bully when she tells him (starting at 1:35) she can’t remember what she just said because “you’re making my brain scrambled”; and
  • She gets under his skin when she says (starting at 2:30) “I think I’m more focused on your posture, on your tone, and your anger.”

It goes downhill from there. Takeaways: (1) he looks bad; (2) Jodi Arias gets to tell her story about being mistreated by her boyfriend and Juan Martinez; and (3) he feeds Jodi Arias long questions instead of short statements. I’ve been there. This kind of cross-examination looks more like an argument between 3-year-old children:

What is Juan Martinez trying to show the jury before he is sidetracked? That Jodi Arias hung out with a supposedly abusive man after he sent her text messages that she found offensive. Here’s another way the cross-examination could have gone:

Q. I’m going to ask you questions about some of Travis’s text messages. You understand?

A. Yes.

Q. They were on his phone?

A. Yes.

Q. He was asleep?

A. Yes.

Q. You looked at them when he was asleep?

A. Yes.

Q. You read the messages?

A. Yes.

Q. They were sexually explicit?

A. Yes.

Q. You told the jury on direct that they offended you?

A. Yes.

Q. After reading these offensive messages, you went on vacation with Travis?

A. Yes.

And so on. He proves his point, and if she answers anything other then “yes,” she looks bad. The jury doesn’t have to squirm in their seats. And there are many other ways to attack her memory.  I’ll address how to deal with a witness’s faulty memory in a future note.

Featured image: “Boxers In A Posed Series, Dunlevy Gym, Sydney, Between 1925-1940 / Photograph” by Sam Hood is licensed CC.

How Cross-Examination Bullying Can Wreck Your Case was originally published on Lawyerist.

Categories: Teknoids Blogs

Does Copyright Apply to Chicken Sandwiches or Cheerleading Uniforms?

slaw - Wed, 08/26/2015 - 07:41

Lately the news has been too full of weighty stuff like elections, the Ashley Madison hack, stock markets, and the Chinese economy.

So today’s post is a bit lighter.

Courts in the United States have recently decided whether copyright applies to chicken sandwiches and to cheerleading uniforms. They decided that it applies to one – but not to the other.

If you guessed it doesn’t apply to the chicken sandwich, you got it right. In the US Court of Appeals the parties were fighting over rights to a sandwich consisting of a fried chicken breast topped with lettuce, tomato, cheese and garlic mayonnaise on a bun. The judge said that the “district court properly determined that a chicken sandwich is not eligible for copyright protection”. And that “A recipe—or any instructions—listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work,”

 

In a 2 to 1 decision, the US Court of Appeals decided that copyright protection does apply to cheerleading uniforms. The difference between the majority and the dissent hinged on what the purpose of cheerleading uniforms is. The majority decided that the design was decorative, not functional. The dissenting judge however felt that the function of the uniform was to identify a cheerleader as a cheerleader, and thus the design forms part of that function.

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 08/26/2015 - 06:00

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. The Manufacturers Life Insurance Company v High Park Medical & Rehabilitation Centre Ltd, 2015 ONSC 5169

[9] Finally, I note that in my endorsement, I limited the parties to three pages of submissions on costs. I also required the defendants to deliver a Costs Outline for comparison purposes. I expressly directed that case law was not to be provided but that references to cases would be made by hyperlinks embedded in parties’ pdf submissions. The defendants’ first submissions were 11 ½ pages in length. They provided no Costs Outline despite being directed expressly to do so. They included pdf copies of cases rather than hyperlinks to CanLII. Scanning and emailing pdf copies of case law is one of the biggest wastes of the profession’s collective time. Everyone has free access to CanLII and most in the business have subscription access to at least two other major online reporting services. The time spent to scan cases adds no value. Moreover the proliferation of unindexed pdf copies of the same case is valueless. The use of limited email space by space-hogging pdfs is singularly wasteful. Of more note perhaps is the defendants’ repeated showing that they simply do not care to follow the Rules or the Court’s directions. As the defendants are already paying costs on a substantial indemnity basis, I do not see that any further response is required at this time.
(Check for commentary on CanLII Connects)

2. Byrnes v Law Society of Upper Canada, 2015 ONSC 2939

[3] Mr. Byrnes was retained on March 6, 2005, in a matrimonial file to act for Mr. Rasheed. Mr. Rasheed is a man of modest means who was earning approximately $42,000 a year at the time and had limited assets. Mr. Byrnes asked Mr. Rasheed to sign an irrevocable direction to hold Mr. Rasheed’s share of the funds from the sale of the matrimonial home in trust for Mr. Byrnes. On August 3, 2005, following the sale of the matrimonial home, Mr. Rasheed received an interim bill of $19,260 inclusive of GST. On August 26, 2005, Mr. Byrnes sent Mr. Rasheed a bill in the amount of $21,654.85 (including GST and disbursements) for services rendered from March 7, 2005 to August 26, 2005, (which included the amount charged for the interim bill). Mr. Rasheed contested the bills, but continued to retain Mr. Byrnes.
(Check for commentary on CanLII Connects)

3. Onex Corporation v. American Home Assurance Company, 2015 ONCA 573

[55] American Home submits that the trial judge used direct evidence of the parties’ subjective intentions to overwhelm the language of the policy, and in effect, granted rectification by giving effect to those subjective intentions. The appellant notes that the respondents did not seek rectification in this case and, in any event, submits they could not have possibly satisfied the strict test for rectification.
(Check for commentary on CanLII Connects)

The most-consulted French-language decision was L.S. c. Kama Sutra inc., 2014 QCCQ 8713

[1] Le demandeur demande le remboursement du prix payé pour une poupée gonflable achetée de Kama Sutra inc. Il invoque en sa faveur la garantie de durabilité prévue à l’article 38 de la Loi sur la protection du consommateur[1] (« L.P.C. »).

[2] Kama Sutra inc. ( «Kama Sutra ») refuse de rembourser le prix du bien invoquant principalement l’usage abusif et une réparation inadéquate.
(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

Categories: Teknoids Blogs

States That Require a Bona Fide Office

The Lawyerist - Wed, 08/26/2015 - 06:00

Although most states have come around — a mere five years or so after everyone else —  to being comfortable with lawyers storing data in the cloud, that semi-forward thinking is not extended to being comfortable with lawyers not having an office. A few state bars have issued ethics opinions explicitly affirming your right to go virtual, but several still retain the “bona fide office” rule, which says you have to have an actual physical office in order to practice in the state.

And then there is the weird middle ground: many states track the language of Model Rule 7.2, which states that if a lawyer advertises, they must “include the name and office address of at least one lawyer or law firm responsible for its content.” A cautious reading of that would be to assume that state requires you to maintain an actual office. A less cautious reading would be to assume that state only wishes you to provide some sort of address on your advertising materials.

Here’s where all fifty states (and the District of Columbia) stand on the issue right now.

StateOffice RequirementAlabamaNo clear prohibition against having a virtual law office.AlaskaA bona fide office is required. Under rule 7.2 of the Alaska Rules of Professional Conduct, any attorney advertisement "shall include the name and office address of at least one lawyer or law firm responsible for its content."ArizonaNo clear prohibition against having a virtual law office.ArkansasNo clear prohibition against having a virtual law office.CaliforniaNo clear prohibition against having a virtual law office. California has sanctioned virtual law offices from a technology security perspective, but has not otherwise addressed the issue.PennsylvaniaPennsylvania has issued an ethics opinion that states that virtual law offices are permitted.DelawareDelaware requires a bona fide office in the state and suspended an attorney for two years for maintaining only a virtual office.New YorkNew York has issued an ethics opinion that it is permissible to use a virtual law office address to satisfy the "principal law office address" requirement in the New York rules if the attorney is a New York resident. If the attorney is licensed in New York but resides elsewhere, New York statutes currently require the nonresident attorney to maintain an office, although a current lawsuit may change that.ColoradoA bona fide office is required. Under rule 7.2 of the Colorado Rules of Professional Conduct, any attorney advertisement "shall include the name and office address of at least one lawyer or law firm responsible for its content."North CarolinaNorth Carolina has issued an ethics opinion that states that virtual law offices are permitted.FloridaA bona fide office is required. Under Florida Rules of Professional Conduct 4-7.12, all advertisements must include "the city, town, or county of 1 or more bona fide office locations of the lawyer who will perform the services advertised."GeorgiaUnclear. Rule 7.2 of the Georgia Rules of Professional Conduct states that "any advertisement shall include the name, physical location and telephone number of each lawyer or law firm who paid for the advertisement and who takes full personal responsibility for the advertisement." However, the rule goes on to say that in the absence of a bona fide physical office, the lawyer may disclose the full address to the Georgia Bar instead.HawaiiNo clear prohibition against having a virtual law office.IdahoA bona fide office is required. Under Idaho Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."IllinoisA bona fide office is required. Under Illinois Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."IndianaA bona fide office is required. Under Indiana Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."IowaA bona fide office is required. Under Iowa Rules of Professional Conduct Rule 37:7:2, all advertisements must include "the name and office of at least one lawyer or law firm responsible for the content."KansasNo clear prohibition against having a virtual law office.KentuckyNo clear prohibition against having a virtual law office.LouisianaNo clear prohibition against having a virtual law office.MaineA bona fide office is required. Under Maine Bar Rules Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."MarylandNo clear prohibition against having a virtual law office.MassachusettsNo clear prohibition against having a virtual law office.MichiganNo clear prohibition against having a virtual law office.MinnesotaNo clear prohibition against having a virtual law office.MississippiUnclear. Mississippi Rules of Professional Conduct Rule 7.2 states that an advertisement "shall disclose the geographic location by city and state of one or more offices of the lawyer or lawyers whose services are advertised or shall state that additional information about the lawyer or firm can be obtained by contacting the Mississippi Bar at a number designated by the Bar and included in the advertisement."MissouriNo clear prohibition against having a virtual law office.MontanaA bona fide office is required. Under Montana Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."NebraskaA bona fide office is required. Under Nebraska Rules of Professional Conduct Rule 3-507.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."NevadaNo clear prohibition against having a virtual law office.New HampshireA bona fide office is required. Under New Hampshire Rules of Professional conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its content."New JerseyNew Jersey's Rules of Practice explicitly allow for virtual law offices.New MexicoNo clear prohibition against having a virtual law office.North DakotaA bona fide office is required. Under North Dakota Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."OhioA bona fide office is required. Under Ohio Dakota Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."OklahomaA bona fide office is required. Under Oklahoma Dakota Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."OregonA bona fide office is required. Under Oregon Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."Rhode IslandA bona fide office is required. Under Rhode Island Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."South CarolinaA bona fide office is required. Under South Carolina Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."South DakotaA bona fide office is required. Under South Dakota Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."TennesseeA bona fide office is required. Under Tennessee Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm assuming responsibility for the communication."TexasNo clear prohibition against having a virtual law office.UtahA bona fide office is required. Under Utah Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."VermontA bona fide office is required. Under Vermont Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."VirginiaUnclear. Rule 7.1 of the Virginia Rules of Professional Conduct states that all advertising must include "the name and office address of at least one lawyer responsible for its content; or, in the alternative, a law firm may file with the Virginia State Bar a current written statement identifying the lawyer responsible for the law firm’s advertising and its office address." However, a 2013 ethics opinion seems to consider the possibility of virtual offices.WashingtonA bona fide office is required. Under Washington Rules of Professional Conduct Rule 7.2 all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."West VirginiaNo clear prohibition against having a virtual office.WisconsinA bona fide office is required. Under Wisconsin Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."WyomingA bona fide office is required. Under Wyoming Rules of Professional Conduct Rule 7.2, all advertisements must include "the name and office address of at least one lawyer or law firm responsible for its contents."Washington D.C.No clear prohibition against having a virtual office.ConnecticutNo clear prohibition against having a virtual office

Featured image: “woman handcuffed to her desk at work” from Shutterstock.

States That Require a Bona Fide Office was originally published on Lawyerist.

Categories: Teknoids Blogs

Quality in Legal and Professional Publishing

slaw - Wed, 08/26/2015 - 06:00

“Quality”. It’s one of those nouns and/or adjectives that everyone uses to describe their own output standards but for the most part is applied to whatever level – high, medium or low, that they are willing and/or able to offer. In many respects, though, that’s a good and desirable thing as more often than not there are no objective standards of quality such as those of the International Organization for Standardization (ISO). In any case, sensibly, the word should be preceded by “optimum”, “appropriate” or suchlike as quality cannot be divorced from competence, price, speed, brand and many other factors.

That said, given the nature of the markets for those products and services created and delivered by legal and professional publishers, one might think that quality in all aspects of their endeavours should be a key factor. Yet increasingly I have a sense, perhaps nothing more than that as I read and listen, often from certain consultant charlatans that feed off the industry, that in a world in which commoditised content is prevalent, maybe the achievement of optimum quality standards is seen as not enormously important. I believe I sometimes detect mild sneering from such types at the idea that there needs to be specific investment in achieving and nourishing quality; for them “not bad” is the more likely goal. Further evidence of different forms of devaluation of depth and quality abounds, in my view, however honest and genuine are the opinions.

Now to be more specific, for present purposes I am seeking to focus on content quality, that is, what is produced out of the minds and endeavours of expert authors and editors. It should go without saying that for a publisher or any such business, the maintenance of quality should prevail in all that it does, including marketing, customer care, process software and tools, metadata, search engine taxonomy, data analytics, to name a few. Equally, the excellence of other factors should not be used to disguise any reduction in that of the written word.

Being of my gender and generation and a relatively uncomplicated person, I am inclined to respect the often-held view that the guidelines for understanding and resolution of many human dilemmas lie within the wise parables to be found in books and films about American crime families with roots in Mediterranean islands. In the same vein, all examples of model business practice can be derived from the automobile industry; utter 3, 5 or 7 Series and many people understand the quality metaphor. With certainly the latter truth in mind, it’s hard to imagine a modern Lexus, Jaguar, Mercedes-Benz and others that do not trade on actual or perceived optimum quality standards that are guarded by those manufacturers. These are simply obvious quasi-facts. Whether or not these truths are self-evident in professional publishing seems to be a matter for debate. If there is a significant absence of content quality I believe that negative consequences follow, yet the admission of it is unlikely to form part of the marketing and PR messages that are distributed. It would be comforting to imagine, however, that brands such as Sweet and Maxwell, Carswell, Tolley, Indicator-FL Memo and CCH remain synonymous with quality. Susan Munro in her excellent Slaw article Pulled in Both Directions, rightly makes the point, of course, that sometimes publishers over-engineer their output, providing the highest quality research capability, when such a standard can be more of a hindrance than a help. In his equally superb article, The Curse of Loose­-Leaf Law Books, Louis Mirando presents an analysis of where the quest for short-term profit in holding on to obsolete formats can be an enemy of quality and value. Gary Rodrigues takes the quality arguments further in Loose Leaf Pain No One’s Gain by encouraging a return to the drawing board on the important legacy content and advises those who are who interested in developing the legal heritage to leave it to others to do.

It may be that the publishers are focused on optimum quality to the extent that the demands of the market are relatively low. I was somewhat surprised and disappointed, having asked a practising lawyer that I know to describe what he thought to be key quality standards from legal publishers who serve his needs. He struggled and hesitated in his response and after being pressured concluded that what he needed was good sign-posting to relevant source material, leaving him, based on his own experience, to work out solutions that benefited his clients. He seemed to have little need for the learned reflections and analysis presented by expert authors as delivered via their hefty tomes. Maybe I asked the wrong sort of lawyer as he, while being an accomplished practitioner in his field, is a knockabout criminal defence hack with little need for theory and sophisticated legal strategies. But if he represents the mainstream, then legal publishers are at their best when they are simply able to compile, structure and present commoditised content and have little that they can do to differentiate one from another. This may as well be the case as we see evidence of some legal publishers abandoning altogether the editorial process. Someone as close to me as my sister, Professor Sonia McKay, reported that she recently contributed as an author to a law book published by one of the UK’s well-known legal publishers. Within the process, their people did nothing by way of editorial intervention on the manuscript. One has to wonder though, in such circumstances, what the role of the publisher has become if it does not engage in editing and as is generally the case, does little by way of marketing? It may be reduced to a low added-value print facilitation and distribution provider in which in-house quality standards are not applied at all to the core aspects of the product.

My impressions were somewhat strengthened by another conversation, this time with an internationally renowned lawyer and writer of very many respected works in his fields of expertise. His view was that he has to live with the dilemma of personally maintaining and updating his huge back catalogue as it cannot be entrusted, partly for reasons of quality, to lesser minds. As to the role of the publisher, well, at best a necessary evil. In his case, he sees his publishers doing nothing to add value to his work in editorial terms and he is merely grateful if those with whom he ought to have regular contact remain in post long enough to provide some form of continuity.

I have a suspicion, however, that the management of optimum or maybe even high quality standards for content may be directly driven by controlling costs when revenue is difficult to grow, or worse, rather than in order to meet market needs. Where the trend is to outsource to third-parties those services that support the intellectual process of writing complicated material, the idea of establishing, monitoring and maintaining high standards that are unique to the publisher is difficult. Where recruiting and training the right people is left to others, who are perhaps abroad and not specialist in national law and procedure, as well as in matters of secondary and quasi-legal sources, citation, indexing and suchlike, quality standards may have to be relegated in terms of priority.

Alternatively, it might simply be that things cannot and should not be as they have been and the future is simply different. Initiatives from publishers such as those intended to drive efficiency and streamline lawyer workflow, deliver technology that seeks to transform the way that the legal profession writes about the law, platform innovation to revisit eBook access strategy and other platform improvements may help to ensure that professional advisers and the clients they serve continue to operate in a quality environment.

Finally and thinking, probably of necessity, more about quantity than quality, the news of the acquisition by Lexis Nexis of Jordan Publishing, subject to prior review by the UK’s Competition and Markets Authority, comes as no surprise. It was both predictable and predicted, the only questions being, up to now, as to who would be the purchaser and if they would go for the whole of the Jordans Group rather than just its publishing unit. Meanwhile, Euromoney has sold its China Law & Practice to ALM. Of lesser significance perhaps is of Wolters Kluwer’s acquisition of Effacts, a Netherlands-based provider of legal management software. Still, it is clear that there remains enthusiasm for acquisition by the major names in legal markets, despite the imminent round of restructuring. It makes me continue to wonder, however, which UK targets below the level of the big three but also from within them will be next to go. Among those that spring to mind are Groupe Editions Lefebvre Sarrut, Informa Professional Services – Legal, Tax and Accounting, CCH in the UK, Bloomsbury Professional, Globe Business Media and Justis. Maybe Thomson Reuters or Bloomberg will buy them all, before exiting the sector.

Categories: Teknoids Blogs

Of Late Summer Updates: Lavaboom Deadpools as Tutanota Rises

slaw - Tue, 08/25/2015 - 20:10

As the end to our summer doldrums draws close, I’m dusting off my RSS feeds and finding some updates on a topic that I touched on earlier this year: the webmail encryption services coming out of Germany.

Back in March I wrote Of German Email Encryption Tool Tutanota and Other PETs, which mentioned a number of new players in the Privacy Enhancing Technologies space that seemingly could make lawyers better at client confidentiality. Not a bad thing, eh?

In a breach-a-day world even lawyers without a particular passion for technology issues are beginning to take note of email encryption. The fact is, whether the threat is black-hat data thieves (were you aware that intrusion against law firms has been on the rise over the last decade?), or the more cloak and dagger stuff that Snowden has repeatedly warned us about, it’s clear that encryption (and cybersecurity more generally) is no laughing matter.

But as recent events in the encrypted email startup space show, this does not mean earnest attempts won’t unravel into farce once in a while. Strangely (and sadly from the perspective of how hard it is to build trust, and how easy it is to fuel cynicism), this seems to have happened with the rather spectacular flame-out by one company I mentioned in my March post… although for reasons I’ll mention, the intrigue is deeper than it may fist appear.

Until about five days ago Lavaboom appeared focused on seizing their piece of the email encryption market with a secure email client that boasted end-to-end encryption and a zero-knowledge architecture. Lavaboom now seems to have gone volcanic… and not in the good way.

I noticed some strange posts from @LavaboomHQ last week, which had me thinking the account might have been hacked. A pair of tweets blurted out that the encrypted email service would be unceremoniously shuttering, leaving only 7 days for users to grab their data and find a lifeboat. In (fittingly?) cryptic fashion, Lavaboom’s tweets hinted obscurely as to the cause of its sudden implosion. Something about financial problems. I poked around and found TechCrunch’s story on the whys and wherefores surrounding the German company’s sudden decision to swan dive with zestful dereliction into the deadpools of the neverafter. Between the TechCrunch story, this ridiculously embarassing thread on Reddit (which precipitated the initial alarm and ongoing mortification), and the aforementioned twittering, one is led to conclude more or less that:

  1. Reddit is a full blown nightmare—especially if your dream is to avoid utter humiliation when your PET startup goes 100% FUBAR.
  2. Lavaboom had at one time secured funding of around €280,000, but ultimately couldn’t tame its burn-rate.
  3. Lavaboom mismanaged not only its money, but its relationship with a key developer—a teenager who appears to be the only person who really knew how the whole system worked.
  4. The whole Lavaboom operation is now so utterly bankrupt that it barely has the wherewithal to keep the doors propped long enough for 25,000 users to salvage their data.

The surface story is one of intemperate youth, poor management, and bickering, or ultimately a severe caution for those who would dare experiment with forward-seeming services like Lavaboom. The story looks to be that ordinary financial troubles and vague other problems (ego, betrayed trust, a “criminal investigation”, disillusionment) caused the service to fall off the rails—where it was probably inevitably bound. It’s a disappointing story on a number of levels, not the least being that it sets us all back a distance in the quest for better privacy.

It feels disappointing because an example like Lavaboom makes us ask, “How can the status quo not remain dubious and not roll eyes in the direction of such bumbling amateurishness? Why would we ever trade our tested tools for some flash in the pan service that can’t even keep the lights on!”

Lavaboom’s Canary Warrant

However, there could be something more to this story. There is some indication that the service’s Canary Warrant—specifically Lavaboom’s failure to update theirs—offers a clue. It’s a turn in the Lavaboom story which, if accurate, should make us concerned not just for the stability of one company, but for the integrity of any client data a lawyer wants to use encryption to protect.

The term “canary warrant” is defined by the Electronic Frontier Foundation as “a colloquial term for a regularly published statement that a service provider has not received legal process that it would be prohibited from saying it had received. Once a service provider does receive legal process, the speech prohibition goes into place, and the canary statement is removed.” This includes legal processes like warrants and national security letters respecting private data.

In addition to the original Reddit post that TechCrunch referred to, there are a few other threads that indicate a canary warrant problem may have cropped up. A short time before the company announced its bad news, someone else on Reddit noticed that the Lavaboom canary warrant had expired, suggesting a “possible compromise”. At first the ex-developer at the centre of the fuss, Piotr Zduniak, hinted that it was mere laziness on the company’s part, however in the last 24 hours he has written more posts that seem to indicate there may be more to it than “mere laziness”. On of his posts implies that the canary warrant is related to the shutdown, while another post outright says the warrant “was not updated on purpose.

The website www.canarywatch.org (operated in part by the EFF) still listed Lavaboom as having a “Current Canary”, but it was only last checked on June 17, 2015.

Implications for the integrity of lawyer-client privilege

What worries me about Lavaboom is not so much that some inexperienced people tried to launch an encryption service and failed at it. It’s vexing that this kind of blunder might become associated with other PET services and hamper their adoption by legal professionals, but it’s not the critical factor.

What’s more concerning in my view is the possibility that yet another encryption tool (remember what happened to Lavabit?) may have been compromised and gagged by state actors who would stop at very little to crack into the encrypted communications pipe. What is most concerning is that this will be the risk for any encryption tool, and that it will be commonly justifiable for state agencies to strong arm encryption service providers if the service is publicly open to all, be they lawyer or suspected terrorist.

The solution, I’m beginning to feel, is that law societies themselves should consider banding together to support and offer encryption. Our regulators could offer to be curators of encrypted email and data services for lawyers, all as an extension of the public’s interest in client confidentiality and the Rule of Law. Do readers of this blog agree that a coalition of law societies—armed with strong professional ethics, fierce advocacy, and a long standing obligation to protect privilege—has the best chance at fending off one of the biggest threats to client confidentiality, the state surveillance agencies?

A note about Tutanota

I should add that Tutanota.de, the other German service mentioned in my older post, has gone quite the other direction from Lavaboom. In addition to adding smartphone support, Tutanota recently launched (on July 31, 2015) premium services that allow use of the Tutanota platform with a custom domain and even Outlook 2010 with Microsoft Exchange or Outlook 2013 with IMAP or Microsoft Exchange. Pricing is surprisingly modest.

 

 

Categories: Teknoids Blogs

Computing Opportunities

slaw - Tue, 08/25/2015 - 17:59

One of the things that drives me crazy is the sure knowledge that there are things that would benefit me that I don’t take advantage of. An expiry date on a fuel discount coupon, a limited time offer that I decide to late to accept, seat sales that I miss the deadline for.

Sometimes we miss efficiency opportunities because we don’t think hard enough about how something that we are doing will be re-done or repeated. For example, some not too old precedents that I recently unearthed had *** rather than a programmed form field wherever text needed to be replaced in the document. There are a couple of options to make the reuse of those precedents easier in the future: write or record a macro that will find *** and leave it selected so that when you “find” it you can simply type the replacement text OR find all of the *** and replace with a form field so that the next person can jump to the “blanks” in the precedent using the F11 keyboard shortcut. Both of these are relatively simple solutions that make better use of existing technology.

Think about the power of the software products that you are using – are you using them to your maximum advantage? Consider learning things that can increase your personal productivity.

  • Rules in Outlook that put unsolicited email in a read it later folder
  • Watch your computing habits; try out a new keyboard shortcut
  • Use spreadsheets when you are dealing with numbers or dates that need to be calculated rather than making manual adjustments
  • Use the spacebar to jump down one screen in your web browser
  • And for the sake of anyone who has to edit a document you create USE auto numbering.

Everyone reading Slaw at this moment carries around more computing power in their pocket than NASA used to reach the moon. We have incredible advantages as individuals to build great things with a little knowledge and the technology that we already own.

How do you think you would score on the Legal Tech Audit?

Categories: Teknoids Blogs

Briefs: Smart Socks, the Death of BigLaw (Again), Accordions, Etc.

The Lawyerist - Tue, 08/25/2015 - 17:51

That political cartoon appears to be an older political cartoon by Jack Ohman while he was at the Oregonian. The archives don’t go back to April 2012, though, which is apparently when it ran in the paper. It seems about right for the current state of law enforcement.

What This Is

Like many people who research and write about the legal industry, I come across a lot of links I can’t write about (in some cases because they have nothing to do with law practice). So a few times a week, I’m going to collect the best ones here, in a series of posts I’m calling Briefs. I hope you enjoy them.

Briefs

Great, now your socks can be hacked. [Fusion]

Apparently there is still some question about whether you can have an all-Mac law office. Related: it’s now possible to communicate with people electronically using something called “email.” Be sure to tune your television dial to the news at 11 for more information. [Attorney at Work]

You cannot copyright a chicken sandwich. Sandwich trolls everywhere cry out in frustration. [Fusion]

The death of BigLaw may have been misunderestimated. [BloombergView]

I’m so conflicted about Lenovo. On the one hand, ThinkPads are among the best computers ever made. On the other, now they come with unremovable crapware. [Bitter Empire]

And now for something completely different:

Briefs: Smart Socks, the Death of BigLaw (Again), Accordions, Etc. was originally published on Lawyerist.

Categories: Teknoids Blogs

Podcast #31: Shantelle Argyle’s Non-Profit Law Firm

The Lawyerist - Tue, 08/25/2015 - 06:12

Shantelle Argyle has a non-profit law firm, something many people talk about but few attempt. Well, the non-profit firm Argyle co-founded doesn’t just work, it’s flourishing. Find out more on today’s podcast after we talk about the ridiculous disconnect between law and science — and by the way, should trials be held virtually?

The Disconnect Between Law and Science

Insane doesn’t mean what the legal system thinks it means. Eyewitness testimony is often worthless. Latent bias has more to do with the outcomes of trials than anyone wants to admit. These are just a few examples of the disconnect between law and science mentioned in a recent article in Wired.

We talked about these problems, and also about one of the proposed solutions: virtual trials, which could eliminate the effect of bias by presenting a jury with neutral avatars in place of the judge, parties, and lawyers.

Shantelle Argyle’s Non-Profit Law Firm

Shantelle Argyle is one of the founders of Open Legal Services, a non-profit law firm in Utah that represents clients who fall into the access to justice gap — those with incomes starting at 125% of the federal poverty line. All clients are represented on a sliding scale, from $60–145 per hour — numbers that allow the non-profit to fund itself through legal fees.

In this episode, Argyle talks about what it takes to start a non-profit law firm, how OLS has become profitable and grown from two lawyers to six in less than two years. She breaks down the fee schedule works, and explains how to go about starting a non-profit law firm of your own.

Thanks to Ruby Receptionists for sponsoring this episode!

Listen and Subscribe

To listen to the podcast, just scroll up and hit the play button.

To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes, Stitcher, or any other podcast player. Or find out about new episodes by subscribing to the Lawyerist Insider, our email newsletter. We will announce new episodes in the Insider, and you can listen to them right here on Lawyerist.

Podcast #31: Shantelle Argyle’s Non-Profit Law Firm was originally published on Lawyerist.

Categories: Teknoids Blogs

Tips Tuesday

slaw - Tue, 08/25/2015 - 06:01

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.

Research

Use Colour
Shaunna Mireau

Today’s research tip is more about research output than gathering. Do not be afraid to use colour to add visual clues to your research output. Using coloured text or tables is not appropriate for pleadings of course, but why not present your client with some visual clues in your opinions? …

Practice

Health Care Practioners: Please Don’t Keep Notes About Your Patients’ Discussions With Their Lawyers
Garry Wise

Today’s tip is for health care practitioners whose patients are involved in litigation. We recognize that it might be natural, and even good practice, for medical practitioners to ask their patients how their lawsuits are going. Particularly for those practitioners who provide counselling, these discussions may be essential to your work. …

Technology

Naming a Top File or Folder*
Dan Pinnington

You’ve probably got a good file and folder naming system all worked out — at least, I hope so. But sometimes when you’re working you want to force Explorer or Finder, depending on whether you’re in Windows or Mac OS, to bring a certain file or folder to the very top of the alpha list but don’t feel like doing the AAA Taxi trick used by the old Yellow Pages optimizers. …

____________________
*Editor’s pick

Categories: Teknoids Blogs

Claims for Damage Caused by Tenants Fall Under Exclusive Jurisdiction of Landlord Board

slaw - Tue, 08/25/2015 - 06:00

A recent Ontario decision has affirmed the principle that all claims for damage caused by a tenant during a tenancy must proceed before the Landlord and Tenant Board (the “Board”) and not in the Superior or Small Claims courts.

After about a six year tenancy, the tenant fell behind on rent. The landlord brought an application to evict the tenant. The tenant vacated the unit shortly after being served with the application materials and did not attend the eviction hearing.

As part of the eviction hearing the landlord sought arrears of rent, including hydro arrears. The Board terminated the tenancy and awarded payment for arrears of rent but did not award payment of the hydro arrears. No reason was given by the Board as to why they did not award the hydro arrears.

The landlord brought a subsequent proceeding in Small Claims Court for the hydro arrears and for the cost of repairing damage that was done to the unit during the tenancy.

The Small Claims Court judge canvassed the legal authorities and noted that if the subject-matter is expressly or inferentially governed by the Residential Tenancies Act, 2006 (the “Act”) then the claim falls within the exclusive jurisdiction of the Board.

The Deputy Judge held that the hydro arrears constituted “rent” under the Act and therefore the claim in that respect must be dismissed for lack of jurisdiction.

The Deputy Judge also held that the damage to the unit ought to have been discovered by the landlord during the term of the tenancy if he had used reasonable diligence. Given that the damage occurred during, and not after, the tenancy the judge ruled that a claim for compensation for these damages was also under the exclusive jurisdiction of the Board.

The court noted

“While it may be an inconvenience to landlords if the law effectively requires an end-of-tenancy inspection simply to protect against the potential jurisdictional conundrum seen in this case, in my opinion that inconvenience is justified compared to the alternative of routinely causing simply residential tenancy matters to be divided into two separate proceedings before two different tribunals.”

Categories: Teknoids Blogs

Wade Into Windows 10

slaw - Tue, 08/25/2015 - 06:00

The latest Windows operating system has started rolling out. Unsurprisingly, reactions to its new update method and privacy functions are mixed. If you were on Windows 7 like most lawyers, it will be an easy upgrade and – despite the negative early chatter – worth taking advantage of the free upgrade.

The Upgrade and Updates

If you have any version of Windows other than Enterprise or Windows RT, you can get the new operating system free. You may have been invited to register for a copy, in which case you’ll get a notification e-mail. You can also just grab your own copy and install it yourself.

This latter option – using Microsoft’s Media Creation tool – gives you a copy of the operating system installation files. You’ll need a USB drive with as much as 6 GB on it. Once you have it, you can re-use it on multiple PCs. During an upgrade, the installation will look to see if you already have a product key. If you do a clean install, which wipes out everything on the PC, you may need to have your Windows 7 or 8 product key. It’s often on a sticker on your PC; if it’s not, you might want to write it down and tape it there yourself. I like having the USB available since there’s no other way to get back to Windows 10 if anything unexpected happens.

Automatic updates are part of Windows 10 just as they were in Windows 7 and 8. The difference is that you can no longer opt out. This has caused some issues. In larger law firms, your technical team may select which updates to allow. Most lawyers will not have the technical expertise to determine whether a particular patch or update should be applied.

You may want to tweak the settings a bit, though. A couple of Windows Update settings to change:

  • Turn the Automatic Updates off in favor of Notify to Schedule Restart. You’ll still get the updates but your system won’t reboot until you’re ready for it.
  • Change the Choose How Your Updates are Delivered setting. A modern way of distributing updates takes a feather out of Bittorrent’s hat. Windows 10 updates will be distributed by Microsoft but also from other Windows 10 PCs. This will speed up updating but you may feel more comfortable limiting these other PCs to ones that are on your own internal network.

Privacy

No-one wants their private information hoovered up and sent off to a third party. This a particular issue for legal professionals with confidential information on their computers. When you install or upgrade to Windows 10, you will be shown a number of privacy settings. These will be new to Windows 7 users but are similar to ones Windows 8 users have seen. There has been some uncertainty about these settings but the hype appears to be overblown.

There are loads of options to review here. It is much more like using a modern phone, both from the number of options and the ability to see them. I appreciate being able to see what the potential privacy problems are. Turning off some will mean you can’t use some services. Cortana, Windows 10’s voice activated personal assistant won’t work without a location.

The Privacy Settings page isn’t the only thing to look at. I ended up going into Windows Firewall and turning off the rules that allowed a whole slew of Microsoft applications to transmit information. I went through the inbound and outbound rules and turned off the applications that I didn’t want sending information.

Another one that you will want to proactively consider is whether you want your operating system user account to be the same as a Microsoft cloud account. If you do, then the default will include synchronizing your system information to the cloud. There are benefits to using cloud file sync but they need to be balanced with professional obligations. I ended up using my Microsoft account since I already use the OneDrive storage and it also gives you single sign on to Microsoft’s online apps, like Word and PowerPoint. A downside is that my Microsoft account password is in my password manager, which I can’t access when Windows is starting up. I’m looking for an alternative like SAASPass for Mac.

Even if you decide to use (or create) a Microsoft account to work with Windows 10, you can disable OneDrive from syncing any folders. First, you can avoid putting any files or folders in the OneDrive folder. Alternatively, you can right-click on the OneDrive icon on the taskbar, go into Settings and proactively uncheck folders you want excluded from synchronization. If you use Dropbox or Box, there are free apps in the Store that you can install.

A Word About Apps

We are all familiar with apps. They work on Windows 10 the same way they work on your phone. One benefit that they offer is the ability to finally get rid of Adobe’s hack-prone Flash plugins. Ideally, you would uninstall Adobe Flash because of its perpetual patching due to security flaws. I did that and found that some services I’d used no longer worked. They weren’t critical and, in balance, it is better to have dropped Flash than to have access to them.

In my case, these services had Windows 10 apps. Like their tablet-based apps, they didn’t rely on Flash to deliver their content. The Windows 10 apps have given me the best of both worlds.

There’s much more to Windows 10 than I have covered here. It’s a positive improvement and small learning curve if you are coming from Windows 7. I’m no more likely to use Microsoft’s Edge browser than I was Internet Explorer, and there’re some hinky aspects (like apps not appearing on the Control Panel uninstall option, but only on the Settings > System > Apps menu). All in all, though, it’s a promising start.

Categories: Teknoids Blogs

Lean Legal: Three Techniques for the Agile Lawyer (Sponsored)

The Lawyerist - Tue, 08/25/2015 - 05:55

The following is an excerpt from the latest informative resource from Clio, read the entire article here.

A growing number of attorneys are turning to a set of project management and process improvement techniques commonly known as “Agile.”

As you might expect from the name, going Agile certainly helps businesses be more nimble and responsive to their customers. However, Agile also has been shown to pay huge dividends in improved productivity, increased teamwork and worker engagement, and higher quality products and services.

Agile is more a philosophy than a methodology. Although the term “Agile” was coined fairly recently, many of its teachings are grounded in age-old wisdom about individual productivity and group dynamics.

While it would be impossible to give a full explanation of these methods in these brief pages, there are several techniques that are common to Agile practices that are easy to adopt but that can pay immediate dividends in productivity, client satisfaction, and the overall health of your practice. I’ll discuss three of them that you can start using today.

Technique #1: Make Your Work (and Your Workflow) Visible.

The simplest way to start experiencing an Agile methodology is to just grab a pack of sticky notes and clear a patch of your wall (windows work too). Make three stickys for your column headers and then write out a separate sticky for each task you can reasonably hope to accomplish today. Those notes go in your “to-do” column with the most important task on top and the least important on the bottom. As you begin work on a task, move it over to the “doing” column (ideally you’ll do them one-by-one, but at least keep it to 2-3). Then as you complete the tasks move them to done. It’s that simple. Then review your completed tasks at the end of the day, maybe populate your “to-do” column with a few things you hope to accomplish tomorrow, and then do it again tomorrow.

Technique #2: Trade in tasks for stories

Agile practitioners most commonly use a set of open-ended sentences known as a “User Story” to describe problems that need solving. In short, a User Story is a snapshot of a particular customer need and the reasons behind that need. User stories follow a simple format:

As a _______________, I need to be able to _______________________, so that I can __________________.

Each blank represents information that you need to capture based on the best information you have about the customer.

Once you’ve developed these high level stories you can use them to inform the work you do in your practice. Family law, for example, a lawyer might replace a task (or set of tasks) having to do with filing temporary orders at the beginning of the dissolution with one or more user stories describing what problems she is trying to solve for her client. The measure of “done,” then, becomes not whether the work was completed but whether the problems have been solved.

Technique #3: Be Retrospective

Where the first three rituals are mainly about planning and doing the work, the Retrospective is about the process for doing the work. It typically follows a three-question format, and everyone on the team is expected to participate (though they are equally powerful for the solo practitioner). The questions are simple:

  • What went well that we should keep doing?
  • What didn’t go well that we should stop doing?
  • What should we try that is different?

The answers to these questions (and the act of addressing them) provide the basis for continuous improvement (a/k/a the Lean concept of Kaizen). By getting into the habit of conducting a periodic retrospective, you and your team are forced to acknowledge both your strengths and your shortcomings. Better yet, it allows you to come up with a plan to capitalize on the former and reduce the latter.

John E. Grant is an attorney and Agile Certified Scrum Master with a passion for helping lawyers and legal teams improve their practices and have fun doing it.

Lean Legal: Three Techniques for the Agile Lawyer (Sponsored) was originally published on Lawyerist.

Categories: Teknoids Blogs

As Coursera Evolves, Colleges Stay On and Investors Buy In

The Chronicle Wired Campus - Tue, 08/25/2015 - 03:56

Three years ago everyone was talking about Coursera, which had begun partnering with some of the world’s most elite colleges to offer free courses. There was overheated hype, as pundits speculated that it could be a magic bullet to bring down college costs. And there were tough questions, as people wondered what the goal was for partner colleges, and how the Silicon Valley company could make enough revenue on free courses to survive.

Today the MOOC hype has dissipated, but the company’s leaders say Coursera has found a way to make money, and that partner colleges have found a clear reason to participate. Those answers, the company announced on Tuesday, were enough to convince investors to give a fresh infusion of $60 million in venture-capital funds.

Richard C. Levin, the company’s CEO and former president of Yale University, said in an interview that the new investment would be used to further expand the company’s reach to students outside of the United States, and that it would extend the company’s “runway” to try new experiments.

So far the secret to bringing in revenue, or what Mr. Levin called a “product-market fit,” has been professional development. The company has created a series of courses that add up to mini-degrees that students can earn quickly, and pay a small fee to certify that they successfully completed them. “It’s mostly people in their 20s and 30s who are interested in learning more skills and making themselves prepared for better jobs,” said Mr. Levin.

For more stories about technology and education, follow Wired Campus on Twitter.

But he insisted that the company is not pivoting to focus only on professional development. He said Coursera is still committed to offering liberal-arts courses as well, and that one thing the new investment will be used for will be to look for ways to make those courses more sustainable. “About half our content is career oriented and half isn’t,” he said. “One of the things we’re thinking about would be premium content on top of [the free materials] in liberal -arts courses.” He declined to elaborate.

Investors were most concerned about whether colleges would stick with the project and continue to build courses, said Mr. Levin. But he said only one college has dropped out of the partnership, which claims 120 colleges worldwide, and that “increasingly, we’re part of the universities’ strategy.”

The biggest win for colleges: “In a way, we’re kind of a lead generator,” he said. “There are many universities that are very well known in U.S. that are not very well known abroad, and the visibility they get through Coursera is in a way a very efficient way to reach new students.”

Rice University, for instance, reports that it is getting more applicants — and higher-quality applicants — for its computer-science masters’ degree after offering a CS course on Coursera, he said.

As for solving the problem of the high price of traditional undergraduate education: “Right now that’s not what we’re doing.”

Jeffrey R. Young writes about technology in education and leads a team exploring new story formats. Follow him on Twitter @jryoung; check out his home page, jeffyoung.net; or try him by email at jeff.young@chronicle.com.

Categories: Teknoids Blogs

Everybody Else is an Idiot

3 Geeks and a Law Blog - Mon, 08/24/2015 - 20:01

I’ve written multiple posts in praise of allied professionals, specialists, and experts who are increasingly vital to the delivery of competent legal services. But just as lawyers are not alone in the legal supply chain, lawyers are not alone in bearing responsibility for its deficits. As we head into ILTACON, I want to restore some balance to The Force by pointing out that we are all (author included) predisposed to myopia and stay-off-my-lawn syndrome.
Three extreme anecdotes:
  • A CIO I know feels like he serves in the clandestine services: our failures are known, our successes are not. He is so fed up with criticism from his lawyers that he reflexively dismisses any complaint as rooted in a toxic mix of technophobia, change aversion, and ignorance. He has developed a bad habit of publicly complaining that his lawyers are endangering sensitive client information by copying it to their unencrypted personal devices. Yet, if you relax the man with a few libations, he will admit that the frontline lawyers have a point. For years, he has been unable to get the budget he needs to upgrade the firm to a mobile but secure digital work environment. Lawyers who need to take work home or on the road often have to choose between security and actually getting the work done. Unsurprisingly, they choose the work. But the CIO does not totally understand why. Since security is part of his mandate, it trumps all else in his mind.
  • A lawyer I know was handling a sizable matter involving a high volume of PDFs. Among other things, she needed to be able to redact information and compare two versions of the same document. She determined that her best option was to upgrade to her PDF software to the Pro version. But when she approached the office manager, she was told that such an upgrade was impractical because the partners in her practice group had no use for the additional features. The firm had a policy that partners are the first to get upgraded hardware or software. Information technology was treated as a perk rather than a tool--as if the soldier should never be armed with a higher caliber weapon than the general or the professional video editor must limit herself to the hardware and software the company CEO needs to send email.
  • A knowledge manager I know was disheartened that her new KM system was being ignored by the lawyers. She understood why they were not yet using it for research. First, it had to be populated with tagged documents. But she could not fathom why the lawyers were not taking the time to tag documents and populate the system. After all, the system was purchased for their benefit. And, if used properly, the system would make their lives easier. She did not recognize the incentives that ran counter to her program. She did not comprehend the tradeoffs between billable and nonbillable time. She did not see the free-rider problem of expecting a lawyer to take the time to update a searchable database with information that the particular lawyer would never need the database to find. Instead of trying to overcome some fairly common (though still challenging) collective action problems, she spent her time wondering how lawyers could be so smart in some areas and so very dumb in others.
Specialization is one of the hallmarks of sophistication. Specialization drives economies of scale. But specialization can also lead to diseconomies of scale as work becomes siloed and communications overhead explodes. It is not easy to collaborate for real. Lawyers do themselves and their clients a disservice if they fail to recognize the value that can be provided by allied professionals in technology, project management, pricing, marketing, knowledge management, research, professional development (including training), etc. But allied professionals do themselves and their clients a disservice by not understanding what the lawyers actually do and why.
There are lawyers who recognize the potential contribution from allied professionals. And there are allied professionals who genuinely comprehend the lawyers’ perspective. But, in general, there is a failure to communicate that both sides are responsible for remedying. All of us are susceptible to making the fundamental attribution error: We disagree because we explain our own conclusions via detailed context (e.g., arguments, analysis, and evidence), and others' conclusions via coarse stable traits (e.g., demographics, interests, biases [, job title, credentials]). While we know abstractly that we also have stable relevant traits, and they have detailed context, we simply assume we have taken that into account, when we have in fact done no such thing. (Overcoming Bias) Just as I recommend structured dialogue between law firms and their clients that includes nontraditional stakeholders, I am also in favor of internal dialogue between lawyers and allied professionals. Given how law firms and departments are typically structured, the responsibility is ultimately on the lawyers to be willing to work differently. There are already too many mandates for allied professionals to change everything while making sure that the lawyers don’t have to change anything. But, when the opportunity presents itself, allied professionals need to be able to comprehend the lawyers’ perspective, understand the tradeoffs the lawyers face, communicate with the lawyers in terms the lawyers understand, and offer viable solutions that minimize the disruption to client work. Neither side should assume that the other is petty, parochial, or obtuse. And both sides need to work at not appearing petty, parochial, or obtuse.
I plead guilty to every crime outlined above. Even recognizing my own shortcomings, I can’t say that I’ve found a great message. But I am evolving. As someone who genuinely wants legal professionals to work differently, I was seduced by stark statements like, “if you dislike change, you’re going to dislike irrelevance even more.” I was attracted to the self-certain rectitude and the sense of inevitability. And, in the long run, I do believe that the only thing that we can say for certain about the future is that it will be different. But the long run can be a quite long. In the mean time, there are minds to be change and real gains to make. I have therefore concerned myself with being able to articulate positive cases for near-term change like deepening relationships, return on investment, profit, and quality of life. The core message remains the same. But finding a framing that resonates with my intended audience has improved its salability.
While I enjoy going to ILTACON to figure out what’s coming in the next decade, I have to say the most valuable sessions and conversations for me are those in which people explain how they got their organization to embrace the advances of the last decade. I can’t think of any such story that is primarily one of shoving an innovation down everyone’s throat. There are always holdouts. But they are holdouts from a new consensus that only exists because of buy-in and effective change management. The hard work of collaboration is really hard. But it is also necessary.



Some people are idiots. But not many. Mostly, we are hard-working, well-meaning people who all bear some responsibility for our failures to communicate.


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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).
Categories: Teknoids Blogs