There is no question that none of us like paying our PACER fees, particularly given that navigating the site often still feels a lot like you are back using Netscape Navigator. That said, most of us grudgingly agree that using the site (and paying the fees) is quite literally the cost of doing business as attorneys. However, PACER fees can be prohibitive for non-profit legal providers who have minimal budgets and cannot pass costs along. Those fees get even more problematic for nonprofit groups that use PACER for broader research.
Several of these nonprofits have now sued the government, alleging that the PACER fees are higher than they are allowed to be by law and are basically subsidizing other projects.
The groups cite the E-Government Act of 2002, which authorizes PACER fees necessary “to reimburse expenses in providing these services.” The suit says that millions of dollars in PACER online access fees have been diverted to other courthouse projects instead. The system was once a dial-in phone service and became an Internet portal in 1998. Fees began at 7 cents per page, rose to 8 cents, and now sit at 10 cents.
“Rather than reduce the fees to cover only the costs incurred, the AO instead decided to use the extra revenue to subsidize other information-technology-related projects—a mission creep that only grew worse over time,” the suit (PDF) claims. Citing government records, the suit says that by the end of 2006, the judiciary’s information-technology fund had accumulated a surplus of $150 million with $32 million from PACER fees [PDF]. When fees were increased to 10 cents a page in 2012, the amount of income from PACER increased to $145 million, “much of which was earmarked for other purposes such as courtroom technology, websites for jurors, and bankruptcy notification systems,” according to the suit.
You can read the entire complaint here.
New Lawsuit Says Gov’t Shouldn’t Profit from PACER was originally published on Lawyerist.com.
Retired judges who return to court as counsel pose a serious threat to the perception of judicial impartiality, an issue that recently caught the attention of the Law Society of Upper Canada.
On January 28, the Professional Regulation Committee made a series of policy amendments to the Rules of Professional Conduct that deal with retired judges returning to practice.
Under the old Rule 7.7-1.4, judges who previously served on the Superior Court of Justice were permitted to appear in court as counsel after a three-year “cooling off” period. With the new amendments, retired Superior Court of Justice judges who want to return to practice will have to obtain approval from a panel of the Hearing Division of the Law Society Tribunal.
The changes were intended to improve perceived unfairness in the courtroom. However, in my view, the changes simply cannot remedy an inherently unfair procedure.
The Committee identified significant issues that are raised when retired judges return to practice.
The Committee considered that judges often do not feel comfortable presiding when a retired judge is counsel. As a result, judges may recuse themselves when a former judge appears in their court. This causes delay and inconvenience to litigants in a legal institution that is already prohibitively expensive.
Where judges do not recuse themselves, there may be concerns about the quality of service that is provided to clients. The outcome of a case may suffer if a retired judge who is acting as counsel is required to argue a position that is contrary to his or her judicial decisions. Conversely, the outcome of a case may be affected if a former judge cites his or her own precedents to advance a position.
Arguably, a panel of the Hearing Division of the Law Society Tribunal can address each of these concerns. A panel can limit recusals and conflicts of interest by refusing to grant a retired judge approval to return to practice.
However, a panel is not able to remedy a lack of public confidence in the administration of justice. The overriding concern is that when a retired judge appears as counsel, the appearance of impartiality is always eroded. In the mind of a litigant, an opposing party who is represented by a judge will always have an unfair advantage.
The problem is that judges occupy the highest strata of the legal profession. An appointment to the judiciary is widely recognized as a prestigious accomplishment, one that is rewarded with a considerable salary and security of tenure. Not surprisingly, when judges retire from the bench, they want to maintain their esteemed reputations. Members of the public and the legal profession are also reluctant to deny former judges recognition for their accomplishments.
The Committee was confronted with two examples that provide evidence of this reality. In one case, opposing counsel referred to a retired judge who was appearing as counsel as “His Honour”. In another, counsel cited his experience as a former judge in advertisements, presumably to showcase an advantage to prospective clients.
As a result of this reality, the return of a retired judge to court as counsel is irreconcilable with impartiality. Judges, opposing counsel and litigants will always recognize when a former judge is appearing across from them. Even if this recognition does not impair the decision-making of judges or the positions taken by lawyers, opposing litigants will perceive an imbalance.
Ian Binnie, former justice of the Supreme Court of Canada, stated, “You always have to consider in these cases the position of the losing party; are they going to go away from court thinking they got the raw deal because the other side had a former judge? Even if that’s not the reality, that will be the perception and I don’t think the courts want to give that impression.”
Lawyers have unique responsibilities as members of a professional community. As our Rules of Professional Conduct state, “A lawyer shall encourage public respect for and try to improve the administration of justice.” Part of this obligation includes a commitment to ensuring the appearance of fairness in the eyes of the public. In accordance with our ethical obligations, we cannot permit retired judges to be reinstated as counsel if doing so threatens the appearance of fairness.
Retired judges should be prohibited from returning to court as counsel altogether. It is difficult to imagine any exceptional circumstance where the appearance of a retired judge as counsel would not taint a litigant’s perception of impartiality. Retired judges should be permitted to provide strategic and practical advice, but should be kept out of courtrooms, where justice must be seen to be done.
The Law Society of Upper Canada should be commended for recognizing that the return of retired judges to practice poses a threat to the administration of justice. However, the problem cannot be fixed by regulatory oversight. The appearance of a retired judge as counsel will always erode the appearance of impartiality. Lawyers and their regulators have an obligation to eliminate this possibility.
Cathleen Brennan is a third year law student at the University of Windsor, Faculty of Law. She will begin articling at Gowling WLG’s Toronto office in August 2016. This piece was written for the op-ed assignment in Professor David M. Tanovich’s Legal Profession class.
Finding clients, meeting with clients, and getting clients to retain your law firm is part of the daily grind for most attorneys.
Many attorneys resort to hard-sell techniques — emphasizing how awesome they are, recent successes, or industry awards — and neglect to actually connect with potential clients.Your Skills are Still Number One
Let me be clear: The number one thing a client wants is results. If you can not or do not establish your problem-solving skills, nothing else matters. That said, your personality still counts.
Most clients are also savvy enough these days to know that more than one attorney can help them. When a potential client comes to your office, they have likely decided that you have the skills and experience to help with their problem. What many potential clients are trying to decide is whether they want to work with you.
At this point, potential clients are no longer trying to decide if you can help them; instead, they are trying to decide if you are the right attorney to help them. And for some potential clients, that means they want to know who you are, not just what you can do.Small Talk is an Essential Skill
I teach “beginner” practical skills to first year law students — things like client intake and handling client meetings . By far the most common mistake is a complete and utter lack of small talk skills. Law students just treat the fake client like a piece of meat and start chomping away.
Actual people need a little more of a warm up. People hire lawyers because they have problems that are causing them stress. And for many people, all they know about lawyers is what they see on TV (or from a prior bad experience with a lawyer). Establishing a comfort zone and a comfort level with your potential client is critical.
If you do not take the time to small talk, you will never establish a comfort level with your client. Instead, you may come across as a busy lawyer who only talks about fees. This will give your potential client you only care about the bottom line.Add Personality to Your Office
Nobody is going to ask you about your law school diploma, and they probably won’t ask about any awards hanging on your walls.
To keep it simple, decorate your office with items that are important to you. For instance, behind my desk are two canvas prints: one from my wedding day and another picture of my two little kids. I put them there because those are the most important things in my life. Having these pictures makes it easy to connect with potential clients, because it’s usually the first thing people ask about. This always leads to me asking about their kids. And if there’s one way to create a connection with people, it’s talking about their kids.
That does not mean you need pictures of kids to engage in small talk. Maybe you are passionate about something else such as marathon running, quilting, collecting old medicine bottles, or winter camping. Everyone has a hobby or something they do when they are not being a lawyer. Those interests will help you connect with clients.Your Personality Counts, Maybe More Than You Think
Maybe you’re the greatest attorney in the world, and you have carte blanche to act however you want. If you are, I doubt you’re reading this post.
For everyone else, remember that your personality matters. Clients want someone to help solve a problem. But lawyers aren’t robots, so don’t act like one.
Originally published 2015-04-10. Last updated 2016-04-22.
Featured image: “Man with a paper-bag on his head working on the laptop” from Shutterstock.
Not so long ago I had the great pleasure of being invited by the eminent lawyer, Professor Philip R. Wood, to discuss a book that he had nearly completed at that time, specifically as to which publisher might be most appropriate for what he had in mind. I was fascinated by what he described and was delighted to be able to point him in the direction of Hart Publishing, part of Bloomsbury Professional and in turn Bloomsbury Publishing. He was kind enough to include a reference to me in the book’s acknowledgements page.
Philip Wood CBE, QC (Hon) is head of the Global Law Intelligence Unit and a special global counsel at Allen & Overy in the City of London and a distinguished legal academic. I had the honour some years ago at Sweet and Maxwell of commissioning and managing his first two of many law books, The Law and Practice of International Finance and English and International Set-off. Both books were, in our terms, phenomenally successful and, for me, the whole experience was hugely memorable. For these reasons, while I cannot be said personally to be disinterested or entirely objective in reviewing his new book, that need not detract from its excellence.
His recently published work is more of a labour of love, if not necessity and although addressing many issues of law, should not be defined as a law book in the traditional sense. The author describes in his preface those factors which gave him little choice but to write the book which had been long on his mind. Lawyers and others with an interest in the law owe him a great debt for what he has produced.
The Fall of the Priests and the Rise of the Lawyers, in its most readable 273 pages, presents and pursues the proposition suggested in its title, namely that the era of the clerics and religious belief has long-since passed as a means of creating laws to manage behaviour and it is left to the law and lawyers to do a significantly more competent and comprehensive job. Calm and detailed in its forensic analysis, the book in its 19 chapters explores the purposes of morality and law, explaining the historical backgrounds to their evolution. Professor Wood plots the rational and logical route from superstition to a framework for our continued existence. He goes so far even to define the very purpose of our existence, “If we are alone in this universe, we have a unique responsibility to stay alive”. Using a range of sources from classical art, via legal and biblical analysis to economic and statistical data throughout the book, the author shows that it is law, rather than religion that directs behaviours and offers protection to support the means for society to be sustained.
For those who might be initially inclined to disagree, Philip Wood explains that by around 900CE the great religions had more or less settled their moral systems and had little to contribute to the creation of rules that followed in an ever-evolving world. Taking the pace of change in science, technology, population growth, commerce and finance from around 1830 as the pivotal time, nothing that religion could offer has been able to match the complexity of human need and its reliance upon laws. At its best, religion sought to offer bodies of rules in the narrowest and most simplistic fields of endeavour, such as family and sexual morality, food, hygiene, appearance, dress, as well in relation to the basics of murder, theft, honesty and respect. But this is a mere sliver compared to the complexity of laws to embrace the innumerable activities that require to be addressed by law. The lawyers need to go where the priests could never had imagined.
The book takes what is to the atheist a mercifully few number of pages, 53 in all, to explain perfectly acceptably the core characteristics of the key Eastern and Western religions from historical and beliefs perspectives. A publishing business of which I am a director, Dunedin Academic Press, still aiming for brevity, requires around 10 books, 9 authors and over 1500 pages to describe more or less the same mythology, so my gratitude is due. In his chapters on the families of law and a description of what he means by secular law, Philip Wood is not, I suspect, aiming at the most serious legal reader but more at non-lawyers. Still, they are no less for their clarity. He is very much at home when he examines how the scope of law has advanced far beyond that of religions in the development and operation of money, banks and corporations. Here the City of London lawyer is in evidence, where he sees the world from that perspective. His optimism about the role of the lawmakers perhaps slightly underplays those areas in which people’s lives are more likely to be harmed by or oppressed, rather than improved by rules conceived for hypocritical or commercial purposes, although he does address briefly the problem of the enactment of bad or wicked laws. Very much the benevolent capitalist, he opines, “Karl Marx totally misunderstood the role of capitalism. One of the main features of capitalism is a system for sharing the money of the people in an efficient and useful way which is also just……Communism was a system for expropriation by despots”. Discuss! Nevertheless, what is obvious is that religion is in no sense a competitor to the law in addressing these issues.
Professor Wood deals well with the chicken and egg question of the sources of our morality, writing that “morality is not a creation of religion and is not exclusive to religion”. He cites examples of ancient bodies of secular law that were picked up by the religious lawmakers and progressively passed backwards and forwards. On the issue of the ideal of modern separation between Church and State, in my view, some of his examples of where this is not entirely the case are a little too forgiving.
It is interesting that at no time in the book does the author explicitly reveal his own personal position on the absurdities of religious belief, superstition and spiritualism, save for his admission, “If, as I believe, survival is our fundamental aim, then it is to the law that we can turn for the means”. No doubt, however, by the end of the book, the final score shows a clear and deserved victory for the lawyers over the priests. He takes the responsibility seriously, though, writing “because of the role that law plays, lawyers have duties to our societies beyond the normal”. In his penultimate chapter entitled “A Way of Living”, he offers an interesting seven propositions for that purpose. I think, though, that ultimately the subjective nature of them leaves little room for comment by me, save to say that perhaps there is merit in everyone drafting his or her own ungodly body of rules to guide their professional or personal lives.
In summary, Philip Wood has written something of a page-turner with The Fall of the Priests and the Rise of the Lawyers. It strikes me as a “must-read” for lawyers and many others and the book deserves enormous market success. Religious fanatics and fundamentalists probably will not like it. For me, in a book of this nature, the absence of an index is disappointing and ought to have been key in providing signposting to content. It in no way detracts, however, from the value of the core propositions of the work.
The Fall of the Priests and the Rise of the Lawyers is published by Hart Publishing/Bloomsbury. The ISBN for the print hardback version is 9781509905546 but eBook versions are also available. Its price is GB£25 or US$42.
Lessons from Building a Node App in Docker – http://jdlm.info/articles/2016/03/06/lessons-building-node-app-docker.html
This article is by Ian Hu, claims prevention and practicePRO counsel at LAWPRO.
As a law student I struggled with the transformation to become a professional. For years I had survived as an unkempt academic, free to meander about and philosophize high-mindedly about the meaning of life. It didn’t help that I was the youngest of my brothers and consequently the least responsible. See – I still can’t take responsibility for my lack of responsibility in my “youth”. In my hubris, I wanted to be judged on the delusional brilliance of my thoughts alone, not by other people’s standards. Little wonder that despite on-campus interviews with more than a dozen firms, I landed not one job. I suppose it’s for this reason that I never advise aspiring lawyers to “be yourself” – if you were like me, you’d go nowhere. Since I lacked self-doubt, “being myself” was not the problem. I now offer, instead, this advice: be your professional self.
One of the marks of a professional is the ability to have situational awareness. By this I mean understanding where you are, who is around you, and what everybody’s expectation is. Can you play the role expected of you in a given situation? When you are about to meet a client, can you: understand the purpose of the meeting and prepare for it, arrive on time, dress appropriately, bring a notepad/laptop, greet the client properly, exchange pleasantries, build rapport, and listen and respond well? It is difficult, to borrow from Aristotle, to act appropriately at the right time, to the right extent, with the right motive, to the right person.
Cultural competence boils down to the same thing. Understanding how to fit in can help you succeed, whether it’s a Bay Street law firm or a small rural practice. Did you know that the average lawyer, regardless of firm size, scores in the top ten percentile on measures of skepticism? This is a profession that does not take exaggeration well. I am reminded of the young lawyer who appeared in court for the first time, advising that opposing counsel had acted with a vexatious and abusive hand by submitting a factum a few minutes late. The judge, fair but not unkind, responded by asking if the young lawyer had read and understood the factum, and if more time was needed for a reply. The young lawyer conceded that he understood the factum, was not surprised, and did not need to draft a reply. With the exaggerated position exposed, the young lawyer retreated.
Mindfulness also emphasizes awareness in the present. Being open and receptive to what is around you can make you a better professional. Clients come to lawyers with life problems which are then pegged into legal pigeonholes. Listening to their real concerns and uncovering their goals can ease communications between clients and lawyers. Listening, not speaking, is the heart of conversation. As communication failures are the number one source of malpractice claims, it seems communicating effectively is not as easy as one might think.
The journey from student to lawyer can be a time of tremendous growth. For many of you the opportunity to expose yourself to challenging situations, and to rise to the challenge, can be a fruitful and satisfying endeavour. It helps to be open, receptive, and aware.
From the opinion:“Upon termination, a lawyer needs to be in a position to accurately determine the fees earned to date. That requires lawyers to keep time records reflecting actual time spent in the representation.”
The lawyer in this case had plenty of other issues, but every law student knows it takes more than a time sheet to determine the reasonableness of a lawyer’s fee. And what’s the point in billing flat fees (which at least some clients do want) if you still have to reduce everything to time in the end? [MyShingle]
Kansas Supreme Court Says It’s Unethical Not to Track Your Time was originally published on Lawyerist.com.
On April 14, 2016, the Ontario government introduced new legislation to launch the Ontario Retirement Pension Plan (ORPP) legislation. Bill 186, Ontario Retirement Pension Plan Act (Strengthening Retirement Security for Ontarians), 2016 will ensure that if the Canada Pension Plan (CPP) is not enhanced, Ontario can proceed with the ORPP. However, the Ontario government says it remains committed to working with the federal government to enhance the CPP.
Bill 186 also establishes the details of the plan design, the rules on participation and contribution and benefits levels.
The plan will begin enrolment for employers on January 1, 2017, with contributions beginning on January 1, 2018. Large and medium employers are not required to start contributing before January 1, 2018 and small employers are not required to start contributing before January 1, 2019.
Employees are required to contribute in respect of employment for which the employee does not participate in a workplace plan that is comparable to the ORPP. However, employers may opt into the ORPP in respect of employees who participate in a comparable workplace pension plan.
When Bill 186 is enacted into law, the Ontario Retirement Pension Plan Act, 2015 will be repealed.
Employers that fail to comply with the rules under the Ontario Retirement Pension Plan could face administrative monetary penalties of up to $10,000, according to Bill 186.
Specifically, Bill 186 defines in the law the plan design details, including participation, contributions, benefit types, and plan sustainability that were discussed in fact sheets in 2015 and 2016. Bill 186 also ensures employers and employees across the province have the information needed to prepare for implementation.
The government will continue to formalize additional plan design details, including those that have been previously announced, in regulations expected this summer and in future legislation.Overview of the Legislation provided by the Ontario Ministry of Finance
Participation and eligibility: Workers between 18 – 70 years old: By 2020, every eligible worker aged 18 to 70 in Ontario would be part of the ORPP or a comparable workplace plan. A member would be required to stop contributing when they reach 70 years of age.
Self-employed and non-crown federally-regulated workers: Individuals who work in industries such as banks, telecommunications, railway and air transportation would not be eligible to participate at this time, due to the current structure of federal income tax and pension rules. The province is currently in discussions with the federal government to support the participation of federally-regulated employees and the self-employed in the ORPP.
First Nations: On-reserve First Nations employers and their employees would have the option to opt-in to the ORPP.
Religious exemptions: Individuals who object to participation in the ORPP on religious grounds may apply to the ORPP AC for an exemption. Future regulations will lay out the criteria for a religious exemption which would follow a similar approach to CPP.
Definition of Ontario employee: A person would be considered employed in Ontario if they report to work, full- or part-time, at an employer’s establishment in Ontario. This also applies to a worker whose salary or hourly wages are paid from an Ontario-based employer, but who is not required to work at an employer’s place of business (e.g., work from a home office).
Employer duties: Employers would be required to pay contributions on behalf of each of the eligible workers employed in Ontario, and also to collect and remit contributions from those workers.
Employer and employee contributions: Employees and employers would each contribute 1.9 per cent of the employee’s annual earnings up to $90,000 (2017 dollars). The full contribution rate would be phased in over time based on the size of the business.
Contributions held in trust: All contributions would be held in trust and invested for the benefit of the members of the plan, and would not form part of general government revenues.
Benefit types: The plan would offer two benefits: a retirement benefit paid for life and a survivor benefit (payable to a surviving spouse, beneficiary or an estate).
The ORPP is designed to provide plan members a 15 per cent income replacement rate after 40 years of contributing to the plan. A member would be eligible to begin collecting a benefit at 65, with actuarially adjusted benefits as early as 60 or as late as 70. The ORPP would begin paying benefits in 2022.
Indexation: The amount of money an individual receives from the ORPP after they retire would depend on how many years they contribute to the pension plan and their salary throughout those years. Pension benefits, contributions and the maximum earnings threshold would be indexed to inflation.
10-Year guarantee period: The member and their spouse can choose to waive the survivor benefit and get a full pension with a 10-year guarantee period. If the member dies within 10 years of retirement, the remaining value of their pension, up to 10 years after retirement, will be paid to their spouse.
Comparable plans: The ORPP would be mandatory for employees and employers without a comparable workplace pension plan. Comparable workplace pension plans are registered pension plans that meet a minimum benefit/contribution threshold:
Should future pension plan innovations address the principles of comparability that the government has identified, the government remains open to examining those plans for comparability. A plan’s comparability would be assessed at the “subset” level of employees within a pension plan. A subset of members could exist where a pension plan provides for different contribution rates or benefit structures for employees, based on:
Contribution waves: Contributions to the ORPP would occur in waves, starting on January 1, 2018, depending on the size of the employer. Employer size would be based on the number of T4s that were issued to Ontario employees in 2015.
Opt-in: Employers that have comparable workplace pension plans would be able to opt-in to the ORPP starting in 2020. This includes if a decision to opt-in is made as part of a collective bargaining negotiation. An employer that elects to opt-in must do so for all of its employees.
ORPP administration corporation (ORPP AC): This bill will enable the ORPP AC to continue implementing the ORPP. The ORPP AC is the independent, arms-length organization that will administer the ORPP, including investing in opportunities that maximize returns for plan members. Its broad responsibilities include enrolling members, collecting and investing contributions in trust, administering benefits, and communicating with employers, members and other beneficiaries. The ORPP AC will determine where and how contributions are invested.
Plan sustainability: The government has designed the ORPP to be sustainable over the long term. This act would establish a formal funding policy to guide the actions of the ORPP AC and the government in the event of a funding shortfall or excess.
To support transparency and accountability regarding plan sustainability, the government is committed to introducing legislation this fall that would establish an Office of the Chief Actuary. This office would provide the government and the ORPP AC with expert and impartial advice and guidance.
Compliance and enforcement: This bill would establish the ORPP AC’s compliance and enforcement framework to encourage employers and plan members to comply with ORPP legislation, address issues of non-compliance, and create a way to resolve disputes.
The compliance and enforcement framework would apply to all stages of the administration of the ORPP, from the employer verification process to the collection of contributions and the payment of benefits.
The ORPP AC would be permitted to administer fines. Employers who fail to deduct or remit contributions would be charged interest on late payments.
Review period: The ORPP would be reviewed five years after its full implementation to help ensure the plan is meeting its intended objectives. Subsequent reviews of the ORPP would occur every 10 years.
Michele Hollins, former President of the Canadian Bar Association said “Studies have shown that lawyers may have the highest rates of depression among various occupational categories…many in our profession think that it makes good business sense to keep concerns to themselves.”
About 20% of the legal profession suffers from clinically significant levels of substance abuse, depression, anxiety or some other form of psychopathy. Lawyers suffer from major depressive disorders at a rate 3.6 times higher than non-lawyers who share key socioeconomic traits. In 2010, the Ontario Lawyers’ Assistance Program reported that 42% of their calls were related to mental health issues.
The research to support Hollins’ claim is there but an effective response is not. Despite the link between one’s mental health and the ability to self-assess for issues of competency and other professional standards, there is no formal training in law schools to prepare future lawyers on the matter.
Under the Rules of Professional Conduct, lawyers are expected to be self-aware and are obliged to be “alert to recognize[ing] any lack of competence for a particular task and the disservice that would be done to the client by undertaking that task.” The Rule is clear but how to ensure that lawyers have the mental capabilities to self-identify any mental ailments is not.
The Law Society’s current mental health programming includes telephone counseling services and Continuing Professional Development training. While the focus has been to proliferate the use of mantras such as “healthy lifestyle” and “work life balance”, serious attention has not appropriately been given to the risk the issue places on lawyers as a self-regulated profession.
Mental illness is disproportionately represented at disciplinary hearings. A CBA report exposed that drugs, alcohol, or “psychiatric” illness was present in almost 50% of the cases categorized as serious disciplinary proceedings. Some numbers suggest that 40% to 75% of disciplinary actions are against lawyers who are chemically dependent or mentally ill.
Even in the absence of any altruistic desire to address the high rate of mental illness, the Law Society must do something to safeguard its role as regulator. As a self-regulated profession, the risk of lawyers’ mental incapacities is too great to continue viewing it in an individualistic manner. The Law Society needs to reframe the discussion as a professionalism issue or risk upsetting public trust in lawyers’ competencies.
Depending on disciplinary measures alone is an ineffective way to safeguard the profession. Often by the time the issue is brought to a hearing, the reputation of the profession has already been damaged. What is needed at this point is greater attention in evaluating and assessing the profession’s response to the vast amount of evidence indicating that there is a problem.
The prevalence of mental illness in the profession conjures questions on whether the profession attracts personalities that are prone to such issues or if the profession itself causes them. There are many important questions the profession must ask itself but the focus here is whether the binary approach to mental health and legal ethics is effective or even accurate.
Over the past 20 years, law schools began placing greater importance on professionalism and implemented compulsory legal ethics components to the curriculum. In the same manner that mental health is discussed now, legal ethics was for a long time, simply an elective course, a subject matter to consider but not an integral part of the legal education system.
The legal profession must be proactive in considering how to reverse the current trend so that mental illness is not overly represented in disciplinary cases. The effect of mental health issues on the profession is not simply evident at the disciplinary stage, but can also manifest itself in daily client interaction and is also likely to disproportionately affect lawyers working in social justice fields. Law Schools should consider how to integrate mental health awareness in the curriculum just as it did with legal ethics. In fact, the two subject matters are inseparable.
A lawyer’s obligation to adhere to the Rules requires the ability to self-assess one’s behavior against the standards set by the Society. Perhaps, our instruction should reach further and aim to provide students with tools to self-assess for mental health issues and instruct preventative strategies. If mental health issues are this pervasive in disciplinary matters, then it would be illogical not to consider them at the same time.
Lindsay Carbonero is a third year law student at the University of Windsor. During law school, she was awarded the Justice Saul Nosanchuk Social Justice Fellowship. As an articling student, Lindsay hopes to continue her involvement with Women’s Legal Education and Action Fund (LEAF) and youth mentorship programs in her community. This piece was written for the op-ed assignment in Professor David M. Tanovich’s Legal Profession class.
If you outsource your legal marketing to an agency, you must ensure it adheres to the rules governing legal advertising.Your Advertising Must Not Mislead “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”
While there are specific rules in each state governing legal advertising, the overarching principle is encapsulated in the first sentence of Model Rule 7.1: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”
It is much harder to know the impact of a potentially misleading ad than it is to know whether a contract paralegal’s work fulfilled the lawyer’s duties of competence and diligence. If an advertising agency or platform does not follow the rules of professional conduct, the potential harm to the general public is unquantifiable.
Generally, to be subject to attorney advertising rules, the communication must be made by the attorney for the primary purpose of soliciting business. If someone else says something about you or your services, the advertising rules do not apply because you did not say it. If you put out a statement publicly, but the statement is not intended to solicit business (a tricky point heavily analyzed by regulators), it will not be subject to advertising rules.
But an ad you purchase on Avvo or a pay-per-click ad you place on Google is a statement made by you for the primary purpose of soliciting business, and it is advertising. Under Model Rule 5.3, you must supervise the service publishing and maintaining the ad to ensure compliance with your ethical obligations. The advertising service may not permissibly violate the rules any more than you may, so if your ad is holding you out as an expert in an unfamiliar area of practice, you have a real problem.You Cannot Control Many Digital Advertising Platforms
On your website, blog, or social media platforms, you can often quickly revise your ad to ensure compliance with your state’s ethical rules. However, with many digital advertising platforms, your ability to ensure the ad is just as you want it to be and remains that way is extremely limited.
Consider an ad on a directory site like Avvo.com.1 With Avvo, you can advertise your legal services to specific subscribers using keywords. You can even edit the tagline of your ad and your profile based on the keyword. But it is important to remember you have no actual control over the programming of the site. For instance, if you are a personal injury lawyer, it is possible that an error made by your preferred advertising platform will start showing your ad in response to searches for trusts and estates lawyers—potentially putting you in the crosshairs of Model Rule 7.1.You Cannot Delegate Everything
The ABA Model Rules make it clear that even when you engage non-lawyers to perform functions in your practice (be it trust accounting, money management, legal research, or administrative functions), they cannot commit acts you are not permitted to commit. The clearest statement of this is Model Rule 5.3, Responsibilities Regarding Non-Lawyer Assistance, which imposes a duty to ensure non-lawyers are not violating legal advertising rules. You are responsible for a non-lawyer’s violation of the rules if you knowingly order or fail to remedy the violation.
Rule 5.3 is written in the context of in-house assistance, but comment 3 to Rule 5.3 clarifies that it also applies to non-lawyers who provide services you contract—including document management companies and contract paralegals: “When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.”How to Ensure Advertising Compliance
Practically speaking, you are not required to look over the shoulder of your service providers, nor do you need to know how the back office work is done. Instead, you must make reasonable efforts to ensure that advertising complies with attorney advertising rules. If your address must appear on your advertisements, you need to make sure that when you design your ad with a design agency, your address appears.2 If your state prohibits the use of certain words like specialist, you need to work with the design agency to ensure that the word does not appear.
Then, once the ad is live, you are responsible for monitoring how it continues to appear. Reasonable diligence in monitoring the way your ad is presented is required to make sure you continue to remain in compliance.
You can also ensure compliance using other media you do control, such as your website. For example, if a banner ad or a Google Adwords ad contains only a few words (which cannot possibly contain every disclaimer required by your state’s rules), the ad will link to your website, where you can ensure that all requirements are met.
Bottom line: Advertising through a service in which you abdicate some level of control over your presentation does not relieve you of your ethical obligations. You remain responsible for monitoring your public statements to remain compliant.
Featured image: “Advertising Advertisement Branding Commercial Concept” from Shutterstock.
Hiring Someone to Run Your Legal Marketing? Here’s What You Need to Know was originally published on Lawyerist.com.
With technology investments, approved budgets quickly become historical artifacts as changing project requirements and unexpected turns lay waste to the best laid plans. While the answer isn’t to close your eyes and keep your wallet open, it surely can’t be the opposite – to limit funding to such an extent that viable paths to improvement or success are foreclosed before the first dollar is spent. Yet in a 2016 federal budget that forecasts a $30 billion deficit, a mere $1 million has been allocated to investment “in information technology infrastructure upgrades to safeguard the efficiency of the federal court system”.
To put that in perspective, a $30 billion deficit means Canada will be adding $1 million dollars to its debt load every 17 minutes. You can debate whether the spending levels or priorities in the budget are good or necessary, but you can’t argue with the fact that the amount allocated to modernizing the federal court system attaches a very, very, very, very, very low priority to the stated goal of making a “A More Efficient Federal Court System”.
Here’s the full text on the subject from the 2016Federal Budget:
A MORE EFFICIENT FEDERAL COURT SYSTEM
Canadians expect a justice system that is accessible and efficient. The Courts Administration Service is an arm’s-length federal organization that provides support to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada and the Tax Court of Canada. Federal Courts judges prepare files, conduct hearings and write decisions at locations across Canada. Budget 2016 proposes to provide $7.9 million over five years to the Courts Administration Service to invest in information technology infrastructure upgrades to safeguard the efficiency of the federal court system. Budget 2016 also proposes to provide up to $2.6 million over two years on a cash basis to help relocate the Quebec City Federal Courts facility, thereby ensuring continued Federal Courts presence in Quebec City.
Of the $7.9 million to be allocated to this purpose over five years, $1M comes in year 1, $2M in year 2 and $3M in year 3.
Assuming limited opportunity to reallocate existing funds, this kind of financial outflow would suggest a likely pathway where:
Of course, this allocation of funds assumes successful project management and that efforts do not fall prey to the typical challenges of government IT projects. Oh…and let’s not forget that because we are talking federal courts, everything has to be perfectly bilingual.
Looking at courts and tribunals, and the governments that fund them, across the country, we don’t have to dig too far to find parallel stories. The need for modernization of court services infrastructure is apparent to anyone with passing familiarity with the system. Even among those working inside the system and wanting to see improvement, the reality of “tech” being a low priority is hard to escape. Consider this statement of the obvious, offered in the context of a CBC article on the Ghomeshi trial, from one of Canada’s more tech-friendly and forward looking justices:
Most courts don’t have the bandwidth or infrastructure to support video broadcasting, and it would be a costly venture, said Ontario Superior Court Justice Fran Kiteley, who is also the co-chair of the Canadian Centre for Court Technology.
If deciding among “improving the service at the counter so that people don’t have to stand there three or four hours, or improving the working conditions of the people behind the counter, or having more judges to get the cases to go faster … as opposed to the fibre optics that you have to do in order to let the public fully in the door — it’s not going to be a really challenging decision what you’re going to pay for,” she said.
When money comes to the courts in dribs and drabs, or when tech projects of any sort are stacked up against other priorities, it’s hard to see from where the opportunity for serious planning for transformative change will come.
My feeling is that the funds and the vision will necessarily need to come from the private sector.
In my next post, I’m going to explore some ideas and describe some of the new players capable of bringing change. If you can’t wait until then, I encourage you to check out the #legalX and RyersonLIZ websites. These Toronto-based legal tech incubators are just the tip of the iceberg when it comes to private sector efforts to modernize legal practice, improve access to justice, and, yes, modernize the courts.
It is disheartening how many lawyers in litigation practices persist in the view that self-representing litigants (“SRLs”) are a problem that needs a solution.
I’ve written about this here before (see Shifting the Burden) and really my views haven’t changed, except in that there is more evidence than ever before that the needs and motivations of those who “choose” to represent themselves in litigation are complex and that this choice is made at their peril and often at significant personal cost.
Why rehash an old story (and indeed it isn’t new)? Because I spent two hours of my day today listening to tips for family lawyers dealing with self-representing litigants and frequently found myself dismayed by some of the attitudes and biases seeming to underlie the advice given.
I know I shouldn’t be surprised that lawyers tend to assume that only they should do the work they do. After all, lawyers do have a monopoly on delivery of most legal services. It naturally follows that this makes lawyers a little edgy about a layperson who is so bold as to attempt to represent themself in a litigation process.
Nor should it surprise me that lawyers are self-protective. Our law societies and insurers have effectively convinced us that we need to be risk averse and protect ourselves against all potential claims and complaints.
It also shouldn’t surprise me when judges take similar stances; after all, they were practicing lawyers at one point too and are currently focused on getting through heavy workloads with a minimum of annoyance while balancing the rights of both represented and self-represented parties to a fair and just hearing. Theirs is a significant challenge, made more so by the growing presence of SRLs in every court across the country.
But what caught my attention today was the extent to which the legal profession views SRLs, more than anything else, as obstacles to overcome in the efficient and effective operation of the justice system. The presenters’ tips were rife with obstacle avoidance techniques – whether through insistence on written communications through snail mail, obtaining transcripts of every court proceeding, avoiding negotiation, blocking persistent emailers or in extreme cases, getting a non-communication order against a threat-making SRL.
While there was prudent advice given (e.g. be respectful, don’t bully, document oral communications in writing), on the whole I left disappointed by the views and attitudes expressed. I can only imagine how much worse it feels when you’re an SRL on the receiving end of this point of view.
And perhaps that is the problem. Few in the legal profession can imagine what it feels like to be a self-representing litigant.
One of today’s presenters noted that dealing with an SRL is very stressful for lawyers. I suggest it is even more stressful for the litigant without a lawyer. SRLs find themselves in the midst of a complex and hard to navigate system, trying to interpret forms and documents often written in what seems to be a foreign language, while dealing with powerful lawyers and judges about often personal and life-altering issues.
The challenges facing the SRL are so much greater than the challenges lawyers face in dealing with them. I’m not sure whether lawyers really recognize that, and if they do, whether they give it adequate weight. There is always a significant power imbalance when a self-representing litigant enters a court proceeding opposite a party represented by counsel. We have all the tools at our disposal while they flounder and do their best with the limited resources available to them.
In this context, lawyers’ fear of SRLs seems a little out of proportion. While there are exceptions (the very few vexatious litigants and assorted serial litigants often the subject of lengthy decisions from the courts), the potential dangers most SRLs present are minimal and can be easily addressed simply through prudent risk management processes.
Until affordable legal services are available to all who want them, lawyers need to accept that SRLs are a fact of the modern justice system and not an aberration or obstacle.
Legal Services Corporation (LSC), the largest organization that funds legal aid programs, announced yesterday that Microsoft has committed $1 million of funding and resources to build out what LSC is calling “legal portals” – basically, online resources that will direct low-income people to legal providers.
As its first step, the LSC’s portal project will create pilot websites in one or two states, with the aim of creating a template that can be replicated elsewhere. Pro Bono Net, a nonprofit that promotes innovative uses of technology to increase access to justice, will also work with Microsoft and LSC.
“The current system of accessing legal services is confusing, opaque and inefficient for many people,” said LSC president James Sandman in a statement. “The goal of the portals is to simplify the process by providing a single, statewide point of access to effective help for people needing civil legal assistance.”
While this may seem somewhat attenuated or small in scope, it is important to remember that access to justice only works when people can easily find resources. A patchwork of government services, courts, non-profits, and private corporations can be prohibitively hard to navigate. LSC says that it hopes to have the first programs up and running within two years.
Microsoft Commits $1 Million to LSC for Access to Justice was originally published on Lawyerist.com.
One-third of the more than 25,500 lawyers in private practice in Ontario are sole practitioners. as a solo, it’s great to have the freedom that comes with being your own boss, but you also have full responsibility for all aspects of the operation of your law practice. Do you have what it takes to be a sole practitioner? See this self-assessment quiz to answer that question.
The chart helps identify your strengths and weaknesses and gives you a better idea of whether you’re cut out for solo or small firm practice. Ask yourself whether you possess some or all of the skills listed below. Rate your skills by circling the appropriate number, using a scale of 1-5, with 1 as low, and 5 as high.
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