January 19-23 is the CFIB’s (Canadian Federation of Independent Business) 6th annual Red Tape Awareness Week.
During the week the CFIB will make several announcements, starting off by announcing the winner of its annual Paperweight Award, citing the most egregious example of government red tape on small businesses. My guess is that CASL will win that.
My personal view is that government does a better job of talking about reducing red tape than actually accomplishing it.
The idea that any of our law societies could sanction ABS – business structures that permit fee-sharing, multi-disciplinary practice, and ownership, management and investment by persons other than lawyers – has prompted vociferous debate about whether the legal profession should change. Benchers, legal ethicists, personal injury lawyers, and academics dominate the debate, with some arguing that if there’s no prospect of benefit to the public, we shouldn’t adopt ABS, versus others who argue that if the access to justice crisis continues, we shouldn’t maintain the status quo.
Often lost in the debate are the perspectives of those who stand to gain (or lose) the most from these reforms: clients, and new and young lawyers. On December 30, the Law Students’ Society of Ontario left a late gift under the Christmas tree (or threw a lump of coal down the chimney, as you prefer) by delivering a ringing endorsement of ABS in Ontario.
The LSSO believes that a form of ABS is “integral to the future of relevant, accessible, and responsive legal services in Ontario.” The barometer for change, they say, must be the public interest and access to justice mandates of our governing bodies. In their submissions (available here), the LSSO urges LSUC to consider that “any assessment of a fundamental reshaping of the legal services landscape ought to be looking for opportunities to narrow the gap between rights afforded and rights that can be exercised affordably.” In their view, the legal profession will not survive – in any form – if it fails to meet the terms of its social contract with the public.
The Law Students’ Society of Ontario speaks for students at all seven Ontario law schools – Lakehead, Windsor, Western, Osgoode Hall, Toronto, Queen’s, and Ottawa. Acknowledging that their perspective is made up of those who are just embarking on their legal careers, the LSSO says:
“We urge the Law Society to give due weight to the perspective of this constituency. Aspiring and young lawyers are a group whose practices and career trajectories will experience enduring impacts from any fundamental reforms to the delivery of legal services. Our generation in the wider population will live the consequences of regulatory inaction.”
The LSSO’s submissions have prompted the response of “so people who have never practiced law want a liberalized ABS regime.” A response that is disappointingly predictable, and dishonest to boot. The debate needs to move beyond a measurement of people’s qualifications. Instead, the debate needs to be about next generations of the legal profession, and their ability to meet the needs of the public.
LSSO concludes their submissions by telling us that “a profession that is unwilling to consider proposals for business model modernization, to venture outside of its consultancy model, to enact innovation-positive policy, and to question its bricks, mortar, and mahogany from time to time will eventually lose its distinction.” Which leads to the question: what is the future for new and young lawyers in Canada? And why should they care about Alternative Business Structures? Most importantly, how can they take up more room in this debate? Join us on January 21 between noon and 1pm for a #cbafutureschat, hosted by the LSSO’s Douglas Judson, on why ABS matters to prospective lawyers.
Lawyers are notorious for publishing their websites and then abruptly forgetting about them. Unfortunately, outdated content can quickly diminish a lawyer’s credibility. Do not let an apparent lack of attention to detail or an appearance of being “behind the times” cause you to lose potential clients.
I challenge you to set a resolution for your practice to review your content for expired, outdated, or inaccurate information. This article can help you get started.Examples of Outdated or Expired Content
If you published your website at least a year ago, I guarantee you have at least one update you can make to your website copy. If you are not sure, then consider these three common areas where outdated or expired content appears:
One of the most reliable ways to ensure you keep your content updated is to run a content audit on your site.
A content audit is an all-encompassing view of your existing website copy. There are many benefits to running an audit — one of which is ensuring you have an eye on pages that may require updating in the future. The simplest way to run an audit is to first create a full inventory of your site.
The easiest method of capturing your audit in one place is to create a usable content inventory within a single spreadsheet. This spreadsheet should include at least the following items for every page on your site:
The quickest way to gather most of this information is to run Screaming Frog, a free SEO-tool (available for Windows, OS X, and Ubuntu). Once you download Screaming Frog to your computer and run your website, it will automatically report out the main SEO-related items on your site (e.g., URL, Title, H1, description, etc.). From there, you can pull out the relevant data into an Excel spreadsheet or a Google Drive spreadsheet.
At that point, you will need to sit down and spend some time going page-by-page on your website. Review all the content on each page for outdated SEO practices, inaccurate statements, irrelevant content, and other potential content issues. Mark down in your spreadsheet what each page is about and highlight pages that require updates.
This process will take some time if you have a large website. The time spent is well worth it, however, as this audit will help you understand what holes exist in your content, what updates you need to make, and which steps you can take to improve your content to take your site to the next level.Ensuring Your Content Remains Up-to-Date Moving Forward
It is important that you use your content audit to track your ongoing website activity. Update the inventory spreadsheet as you update your website. And implement an editorial calendar that will help you remain aware of your content as time progresses.
This calendar can be as in-depth as you want it to be. For instance, you could include dates for when you want to run your next content inventory, weekly, or biweekly dates to publish out new blog posts, and as-needed updates to make as you prepare for speaking engagements or CLE presentations.
The trick with a content calendar is that you need to hold yourself accountable to the dates you set. It is far too easy to push off these tasks to “another day” and let them fall by the wayside altogether. If you feel you may fall into this routine, reach out to a colleague to help hold you accountable, have this task as part of one of your staff’s requirements, or outsource the work to your website marketing company. Just make sure you stick to it.Writing Generalized Copy Is Not the Answer
Make sure you take time to write compelling, relevant content for your website. Then follow up that initial investment by staying on top of your content through ongoing audits.Free Content Audit Resources
You do not need to start from scratch to get the content inventory and audit process rolling. Here are several free resources to help you:
Take a look at these free tips and tools, find the ones that work for you, and get started.
Featured image: “Digital Online Update Upgrade Office Working Concept” from Shutterstock.
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. Szakacs v. Clarke, 2014 ONSC 7487
 For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.
 One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. She effortlessly put the “rage” in “outrageous,” even going so far as to arrange for the board of directors of the housing co-operative where she lives to send a letter to the respondent, advising him that he is “no longer allowed on the property” and that “the Niagara Regional Police will be notified” should he be spotted, thus thwarting all access pick-ups and drop-offs. A letter also was sent to the police. These letters were prepared and delivered while the trial was in progress and they were not justified by any change in circumstances or by any evidence that I heard. Such meanness is unusual, even in the dysfunctional world of family litigation. The no-trespass letters raise questions: What evidence did the housing co-operative possess? Was this an attempt to obstruct the work of the court? Does this court have jurisdiction to quash the letters?
2. R. v. Pal-Deng, 2015 ONCJ 2
 While I am strongly inclined to believe that the defendant merely tried to oblige or convenience the complainant, the only legally critical conclusion I need reach to compel an acquittal – and one founded on the defendant’s testimony and the buttressing CCTV evidence – is that I have a reasonable doubt regarding any inculpatory alternative. A physical gesture of assistance or support is not an assault in the presenting circumstances. Nor is a momentary accidental touch. In the result, the defendant is found not guilty of both counts on which he was arraigned. Indeed, the probative impact of the videotaped evidence is so compelling that I would have reached the same verdict had the defence elected not to call evidence.
 Finally, I feel compelled to note that absent the CCTV evidence the result may have been tragically different. The complainant is a sympathetic witness who has no redress, financial or moral, for the very real trauma she suffered on March 6th. The two independent witnesses each testified in a straightforward and facially guileless and impartial manner that enhanced their credibility. The defendant, on the other hand, is a culturally challenged and unsophisticated individual who, if understandably, appears to have some difficulty appreciating the basis for his prosecution. It is of profound concern that justice could so easily have miscarried but for the good fortune that the very physical exchange at issue was preserved on videotape. It is of at least equally profound concern that the defendant spent many months in remand custody for offences for which factually exculpatory evidence has long been in the possession of the state.
3. Clayson v. Martin, 2014 ONSC 7506
 The parties have conducted a lengthy trial before Timms J. over a period of some 20 days in court ending June of 2014. Justice Timms indicated at the conclusion of the evidence that he had considerable prior demands upon his schedule in terms of reserve judgments and that the parties regrettably could expect a long period of reserve before he would be in a position to release his decision and reasons on the trial.
 I pause parenthetically to note that, in the province of Ontario, there was a notorious and critical shortage of judges in the Superior Court in 2014 which materially, significantly, and in some cases such as this one, grievously affected the ability of the courts to administer timely justice. Justice Timms, like others in the Central East Region were labouring under continually increasing demands on their time to be in court and were unable to spend the time that they needed to turn around decisions in cases such as this one.
The most-consulted French-language decision was Médecins (Ordre professionnel des) c Lacombe, 2015 CanLII 130 (QC CDCM)
 En ce qui concerne la consultation initiale du Docteur Desjardins en vue de la rupture des membranes, elle semble appropriée en l’espèce mais le fait que l’intimé avait une patiente qui ne collaborait pas, qu’il a été incapable selon son témoignage d’obtenir la correction de la malposition fœtale(OIPD) et un arrêt de descente, celui-ci aurait dû consulter beaucoup plus rapidement Docteur Desjardins pour que cette dernière procède aux manœuvres d’extraction fœtale au lieu de persister à faire administrer de manière intempestive du Syntocinon.
 Quant aux remarques concernant l’intervention chirurgicale pratiquée par Docteur Desjardins, ces dernières bien qu’intéressantes et instructives concernant les constatations faites qui peuvent fournir cette réponse, le Conseil ne doit pas analyser la preuve sous l’angle du rétroscope.
* 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
The end of the year is budget season. For librarians, part of the budgetary process is looking at our collections, calculating how much it will cost to keep each service, print or electronic, and then deciding if the cost of the service reflects the value we get from that service.
When I look at what the value of an item is for my library, I consider a number of variables:
Value is a very individual thing. What is valuable to one organization may not be valuable to another. Even within an organization, one person’s “can’t live without” resource is another person’s “why are we spending money on this?” item.
Furthermore, the value of materials does not remain static. The value of a resource to an organization can change if the organization loses (or gains) a working group, a publisher introduces a competing resource, or the cost of the resource increases.
Loose-leafs are an obvious example of where value has shifted. A number of loose-leaf services still include legislation although it is freely available online and is generally more current. In the past, when consolidated legislation was harder to come by, this legislation was a valuable part of the loose-leaf service. Nowadays, including legislation in a loose-leaf lessens rather than adds value; the loose-leaf takes up more space in the library (when library space is shrinking) and releases take more staff time to file.
Electronic resources are another area where value has changed. In the past expensive electronic services could be justified since all or most of the costs were recovered, but this is decreasingly the case. I have been told by a number of people that clients do not want to pay for database costs (or other law firm costs) since they feel that they should be considered overhead and included in the hourly rate. However, these resources still have to be paid for; if they are being treated as overhead, do lawyers feel that they represent value for money, and if clients are being charged for them, can we justify their use to the clients? The argument that vendors make when they sell us these services is that these databases will make lawyers more efficient (effectively saving the client money by reducing lawyer time spent on a file) and improve the quality of research (which in turn improves the quality of the work done for the client).
Sometimes you need to be creative in order to get the most value for your money. David Whelan talks about this in his article on How to Deal with Legal Publishers; he argues that you can increase the value of the services you are purchasing by not just automatically renewing what you already have:
“I try to … closely monitor what is being used and what isn’t and renegotiate the content as frequently as I can. When you start talking about different slices of information and swapping in some and swapping out others, you’re no longer just talking about price increases in lockstep. You may still experience an equivalent percentage increase, but you will be fine tuning your collection.”
Librarians (and their library users) should not be wedded to the “we’ve always had this” mentality, but this is easier said than done. As Sarah Sutherland said in her recent SLAW article, “most people value the cost of losing something higher than than the cost of gaining something.”
When making changes to the library collection, librarians need to be able to clearly convey why a resource has lost its value. Whether resources are treated as overhead, or charged back to clients, it is important that librarians understand the value of items to their users and are able to articulate the value of these resources to other stakeholders.
No matter where you live in Vancouver, odds are pretty good there’s a dog nearby with the name Charlie.
How do I know this random tidbit? It’s thanks to CartoDB, a (mostly) free cloud-based mapping tool. While browsing their online gallery, I came across a user-generated map of popular dog names in Vancouver, created using open source data.
The product concept is pretty simple: CartoDB will take geo-location data, along with other connected contextual data, from an Excel spreadsheet or CSV file; and then turn those pieces into an professional-looking, interactive map.
We recently used CartoDB for a client project at Stem, where we plotted reports of medical device problems (metal hip replacements) on a map of the United States. The map showed which devices were implanted, where, and what symptoms were reported. While the data set was admittedly simple, with the finished product we were able to demonstrate the geographic spread of the problem at hand.
The map creation process wasn’t difficult – at least with our KISS-level usage of the product. The work was conducted in three phases: data importing (selecting the CSV or XLS file from the local computer); georeferencing the data (a simple tool, converting addresses or “City, State” combinations into latitude & longitude); and then applying one of the visualization wizards to customize the display. A few labels were then added, leaving us with a final product that was sharable via a limited view-only public account, or embeddable as an iframe within a website.
With visuals and imagery becoming an increasingly powerful part of communication, it’s worth highlighting a tool like this. Firms often have this kind of geographic-friendly data with the potential to be anonymized, making CartoDB a very powerful tool in all sorts of law-related settings. Product liability reports like the ones our client used are an obvious example, but there are likely to be a host of others.
A free account will get you unlimited tables and up to 50MB of data; plenty for most projects. Premium plans (that allow for private maps) start at $29/month.
I have a bit of a writing habit. I am not alone. Over the years, I have tried to determine why I enjoy putting words on a page or screen for others to read. It could be shameless need to promote my ideas, it might fulfill my outgoing introvert soul, and it could be that it helps me solidify the Why for my daily work life.
Why does anyone do what they do?
A Handbook for Corporate Information Professionals, edited by Katharine Schopflin and containing a chapter on internal and external marketing by info pros that I contributed is now available from Facet Publishing in the UK and the American Library Association on this side of the pond.
The Canadian Association of Law Libraries conference program will include a panel session on writing and publishing. Follow the conference tweets: @callacbd2015: Registration for the 2015 CALL conference opens next week! http://t.co/5coFriajB1
Today’s guest is Paul Floyd, a business lawyer for lawyers — and a very successful one. Paul may not have an edgy website, but he is a good lawyer who gives good advice, which means he has an enviable law practice without all the virtual offices, alternatives billing arrangements and iPads actually I can’t remember the last time I saw Paul without his iPad.
Among other things, Paul helps lawyers sell their practices, and I wanted to talk to Paul about valuing a practice because I felt like I never got a straight answer when I have asked how to do it. Paul finally explained it so I could understand: the best way to value a law practice is not to value it. That sounds mysterious, but it’s not. Paul explains why it doesn’t really make sense to try to come up with a value for most law firms, and what makes some more valuable than others.Question: How Do You Calculate Flat Fees When Starting Out?
This question comes from our forum. Aaron and I offer our own suggestions for coming up with flat fees early on in your legal career.
(By the way, we know that Aaron’s mic is too echo-y in this segment. We didn’t have a chance to fix it before we finalized this episode, but the echo should be gone by Episode 3.)Listen and Subscribe
To listen to the podcast, just scroll up and hit the play button.
Thanks to Ruby Receptionists for sponsoring this episode of our podcast.
To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes or Stitcher. 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.
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.
Create a playlist to help yourself fall asleep*
Not sure if the experts will say this is a scientifically helpful idea for falling asleep (IMHO it seems better than just counting sheep), but sometimes you will want to listen to music as you (hopefully) fall asleep. But how do you set things up so you aren’t stuck listening to music all night?…
Plan Your Research
I have been reading in the area of Lean Six Sigma lately and have come to the conclusion that good legal research practices and good project management skills have wide overlap. An excellent article from the May 2014 issue of Quality Progress by H. F. Ken Machado titled Plan of Attack: Managing the anatomy of your key projects is fundamental to organizational success has reinforced my conclusion….
Adapt to New Technologies
The CBA’s Practising Ethically with Technology guidelines, published by the CBA Ethics and Professional Responsibility Committee, has identified five areas where lawyers most often face ethical issues using technology….
* Editor’s pick
In September, 2012 I posted a short piece about a tenant who had been evicted from 6 homes in 7 years who was arrested to face fraud charges.
The Toronto Star has reported that Nina Willis was found guilty after an eight day trial that turned into a “spectacle”.
Is there any question as to whether she will appeal?
I wonder if many others, like me, find almost all those uplifting messages posted and spread on social and business media sites, intensely nauseating? Mostly they instruct, or rather order us to have some kind of simplistic emotional feeling surrounding “do something awesome”, “life is like a (any noun will do)”, “17 things that mentally strong people do” or, maybe even more shallow, the command that we “keep calm” followed by something really tedious. However, I could probably live with “keep calm and stop getting childishly over-excited about next to nothing”. Equally absurd is that the people who write or repeat the nonsense, when you actually know them personally, you are reminded that they rarely are true proponents of the supposedly high moral ground they espouse but are as likely to be even worse than the rest of us.
It makes me despair about such people or rather just the lack of real life experience of those who would create or pay any attention to this often deceitful drivel. Few in number I hope, but those unquestioning, never cynical or sceptical enthusiasts exist, ready to parrot whatever lies, myths and breakable promises that are handed down to them. I notice that they rarely are “experienced”, “trained”, “educated”, “knowledgeable” or “interested” in their field or necessarily good at it but almost inevitably “passionate” about what they do, an emotion that, entirely subjectively, I normally tend to associate either with romantic endeavours or uncontrolled criminality, sometimes both. Nothing is described in measured and comparative ways but only in terms of “awesome” and “amazing”, which it rarely appears to be. With, as I perceive it, their beliefs in the authority of whomever is in position, impossible magic, mysticism, myth and acceptance of the correctness of whatever status quo they encounter, while wishing them no harm nor intending to cause offence, I try to keep my distance from them. They just aren’t normally my kind of person. Probably no harm done; life’s rich tapestry and all that.
I haven’t come across an enormous number of such types working in legal and professional publishing, I’m pleased to report, yet I wonder why? Probably having something to do with the relative sanity and comparative rationality of the law is not irrelevant. More than this, it tends to attract somewhat “less is more” kinds of people who value statement of fact over hysteria and dishonesty, and opinion that is informed, maybe objective, even expert. In terms of a view on the world and such issues as social responsibility, quoting a former such colleague, and for those who have some familiarity with British journalism, those in legal publishing might, on balance, be enthusiasts more for The Guardian than The Telegraph. Consistent with the overall demographic base of publishing personnel, the presence of women is more fairly measurable than in some other places and there is more to be done but at least absurd attempts at exercising faux alpha-male traits tend to look somewhat out of place in the industry. Against that, in my own experience, genuine entrepreneurs in legal publishing seem somewhat few and far between, though not altogether missing. Perhaps the legal publishing types are too pleasant, thoughtful and cautious to take great entrepreneurial risks.
Therefore, one of my great attractions to the legal and professional publishing trade is the familiar presence of the good guys of this world. These are the ones who usually think before they speak, listen more than lecture, try to speak and act truthfully, honourably and with integrity and seek to avoid the political shenanigans that are an inevitable part of working life. At the same time, they are the ones who remain determined to make their industry and the products and services it produces exciting, innovative and relevant, rather than otherwise. I have thus far been able to keep close to these sorts and, where possible, avoid their risible management-speak opposites. I believe it serves me well.
I don’t think that the benefits that the good guys bring are minor or personal to me but rather are of massive significance to a successfully functioning legal and professional publishing industry and its customers. For those, and there are many, who would debunk the value of investing in creating and sustaining high quality standards in products and services, the good guys would certainly be off-message, I am certain. Jason Wilson’s comments on current and likely future trends are worth reading. Doing everything that is necessary, yet measured, proportionate and optimal to deliver the mix of great commercial and financial success with quality, customer service and satisfaction, responsibility to and for employees and shareholders requires a balanced approach is far from easy. Those who would take a one-dimensional approach to such challenges are not likely to be in for the long-term, as is evidenced by the revolving door in senior management positions, as the resolution of one set of own goal problems often enhances the significance of others.
For me, for all its pluses and minuses, the joy of being in and around legal and professional publishing is the camaraderie and in some cases long-standing friendships developed with the good guys of the trade. To witness in others professionalism, quickness of mind combined with depth of intellect, the ability to be aggressively commercial while simultaneously intensely caring about those affected by their behaviours and that of others, is a privilege. It is such a pity that sometimes those who are less close to the business, who, as customers or suppliers may occasionally see themselves as victims of the worst of its characteristics, are not always aware of some of the people who are part of it.
Perhaps the legal publishing industry, while the good guys are still there, could do more, instead of spewing out the platitudes of many of its public relations outpourings, to tell its audience about the general and specific range of issues it faces, including changing markets and digital challenges and how it is responding to or anticipating them. Much of what we see from them seems to pretend that the financial realities that some of them face do not exist and that their attention may, in some cases, not be on information publishing. Nevertheless, it’s pleasing when we see announcements of genuinely worthwhile innovation set in a context in which no less an authority than The Economist is optimistic about the future of the publishing industry; for the most part, I would agree. Still, I have no doubt that it could try even harder, honestly and genuinely, to present its more acceptable face and to be the sort of information, content and solutions partner that its customers would prefer to have and of which it is capable. In that context, as ever, the continuing and competitive rise of Bloomberg Law remains interesting.
Perhaps some of these issues will emerge and be further discussed at the 2015 Annual CALL/ACBD Conference taking place in May 2015 in Moncton, New Brunswick, in Canada. During the event, with Jason Wilson, I hope to be a presenter in a plenary session, moderated by Gary Rodrigues on the topic of The Future of Legal Publishing.
The abundance of data being collected on students has been celebrated as an opportunity to “personalize” education. But privacy advocates have long warned that digital paper trails might leave today’s students exposed if their personal information fell into the wrong hands.
The White House announced on Monday that it would be taking up the cause of student privacy, pushing legislation that would “prevent companies from selling student data to third parties for purposes unrelated to the educational mission,” according to a news release.
However, the bill, called the Student Digital Privacy Act, would focus on students in elementary and secondary schools, not college students, according to Obama-administration officials.
In a speech at the headquarters of the Federal Trade Commission, President Obama pitched the Student Digital Privacy Act as a measure to keep companies from misusing data collected in the course of providing educational services to schools.
“We’ve already seen some instances where some companies use educational technologies to collect student data for commercial purposes, like targeted advertising,” said Mr. Obama.
New technologies that encourage the collection and analysis of student data increase the risk to privacy, said the president, citing digital textbooks, online tutoring services, and software that helps instructors track student progress in real time.
Those technologies have proliferated in higher education as well, of course, and the possible hazards have not escaped the notice of federal regulators.
Last year the trade commission sent a letter to a New York court overseeing the bankruptcy of ConnectEDU, a company that collected data from high-school and college students in the course of providing services. In that letter, the regulator warned the judge against letting the company sell that information as part of its bankruptcy proceedings without giving students a chance to have it removed.
Barmak Nassirian, director of federal relations and policy analysis for the American Association of State Colleges and Universities, said the bill drew an “artificial distinction” by focusing on elementary and secondary students, and leaving college students to fend for themselves. “From a privacy perspective, there is really no reason to do that,” said Mr. Nassirian.
A White House official said the scope of the legislation had been influenced by a California law that also focused on elementary and secondary students.
If the Student Digital Privacy Act were to become law—a big if, considering the Republican-controlled Congress—it could still influence higher education. That’s because a lot of data follow students to college, said Michael Abbiatti, executive director of the WICHE Cooperative for Educational Technologies, a nonprofit that supports e-learning collaborations. So much data get “shipped” across that border, said Mr. Abbiatti, that definitions and systems that govern data collection in elementary and secondary schools tend to influence those in higher education.
“The legislation might not mention higher education,” he said. But, if it became law, it would “definitely impact higher education.”
The Law Society of BC recently issued a warning to its members to be vigilant about their firm’s cyber security after a BC firm’s files were held captive by a hacker who encrypted them and tried to extort payment in return for restoring access. There have been similar cases in Ontario in the last year.
…the firm found that its computer system was hacked and paralyzed by a computer virus known as the Cryptowall Virus when the staff showed up for work on Monday, December 29, 2014. Notices appeared on some of the firm’s computer monitors stating “Your files were encrypted and locked with a RSA2048 key.” The firm was advised to contact an address within 12 hours and pay an extortion fee to have the encryption unlocked. The notices further advised that if the firm did not pay the fee within the stipulated time, the fee would double. Finally, without payment, the files would be “irrevocably broken” after 30 days. The firm sought the help of its computer technician and did not pay the ransom or click on links provided by the extortionist regarding payment that may have exposed the firm to other risks. The firm had backed up its information and with the aid of professional technical assistance, was able to resume operations with systems running normally. The firm contacted the police who provided the firm with information about the virus which was likely transferred through an email attachment.
“Ransomware” infections are becoming much more common recently and are usually spread by infected email attachments or website links that trigger a download. Another common type, Cryptolocker, will scramble all the data files on your computer with virtually unbreakable encryption. You learn you are infected when a pop-up window tells you that your data has been scrambled and will be deleted unless you pay a ransom within a very short period of time, typically 48 hours or so. The ransom is typically in the range of $100 to $300 and payable only in Bitcoins, a type of virtual currency that makes payments untraceable. It is a relatively low amount so you have an incentive to pay it as a nuisance; but as you are dealing with criminals, paying it does not guarantee that you will get your data back.
This story serves as a reminder to be vigilant about email attachments and the risks they can pose, as explained in the articles Avoid the Dangers of Email and Would You Take the Bait in a Phishing Scam? from the latest issue Cybercrime issue of LAWPRO Magazine.
And from the same issue, this article explains the importance of Being Ready with an Incident Response Plan.
For better or for worse, Outlook remains ubiquitous (if not necessarily popular) among lawyers. And really, it’s for good reason. Nothing else combines email, contacts, calendar, and tasks in a single place. Unlike some, I’m an Outlook fan. For a while, I even figured out a way to use Outlook 2007 as a matter-based organizer, although Microsoft removed the Activity tab in Outlook 2010.
So I think it is pretty exciting that Microsoft is finally going to build practice management features into Office, specifically for lawyers. From Bob Ambrogi:
Microsoft unveiled a preview version of Matter Center during the International Legal Technology Association (ILTA) conference in August, but has said virtually nothing about it since, apart from what is said on the product’s web page.
Bob thinks it will be launched at ABA TechShow in April. If so, I will be sure to publish a preview as soon as I can see it in action. For much more information, read Bob’s post at LawSites.
From the ABA Journal:
The first practice area in which LLLTs [in Washington state] will be licensed is domestic relations. Cummings and 14 others have taken the required courses and will sit for a licensing examination in March. The state will begin licensing those who pass in the spring.
In addition to Washington, non-lawyers are doing some of the work traditionally reserved for lawyers in New York, and California is actively exploring non-lawyer licensing. Other states are starting to take an interest, as well.
Also in what-used-to-be-UPL news, LegalZoom recently became approved to provide legal services as an Alternative Business Structure in the UK. Expect it to try to figure out ways to do the same thing in the US.
When I first learned about “LII-in-a-Box,” a new legal information service developed by the African Legal Information Institute, I thought it might provide a stand-alone information system that could operate independent of the internet. I thought it might be something that would alleviate poor and intermittent internet connections that make access to online information difficult in under-served communities and countries. Honestly though, what really came to mind was the LibraryBox Project that Jason Griffey has been championing for a number of years now.
LibraryBox is an “open source wifi file sharing device” that consists of a router, a USB drive and some software to make it work. It’s described on the main project website as a “portable digital file distribution tool based on inexpensive hardware that enables delivery of educational, healthcare, and other vital information to individuals off the grid.” Could it be used to distribute legal information? I don’t see why not.
The “LII-in-a-Box” idea is a project of the AfricanLII and appears as a component of their mandate since the LII was founded in 2010. It’s an idea that does a great job of supporting their primary goal to “promote Free Access to Law and Open Justice in Africa” and it facilitates the development of other Legal Information Institutes in Africa.
As noted in their introduction, “most African countries suffer from shortages of IT skills, fast and accessible links to the Internet core, as well as reliable service providers offering advanced hardware for hosting solutions.” The “LII-in-a-Box” aims to solve this problem by providing a turnkey solution that enables “free law publishing projects, usually small entrepreneurial bootstrapped start-ups, to concentrate their initial efforts and resources on delivering much needed sustainable access to the law.”
“… produce a packaged software solution allowing for an easy installation of a localized legal information system. This solution will assist institutions that are not necessarily skilled in the specialized field of legal information systems to deploy and successfully maintain such systems with minimal or no further support from AfricanLII.”
The “LII-in-a-Box” is also an open source venture so it seems possible that someone could morph this into a LibraryBox-esque type project creating something that might be called a “LII-in your-Pocket.”
The specific details of wifi distribution would need to be worked out but LII users could access the legal information collection whenever they were within a reasonable proximity of the “LII-in-a-LibraryBox” implementation.
Updates to the Box could occur whenever a stable internet connection was detected, but a core set of documents would always be accessible to LII users. This set up is reminiscent too of the Occupy “darknet” developed in 2011 that created a “collective network infrastructure … owned and controlled by its users.”
So could a combination of the “LII-in-a-Box,” the LibraryBox and the Occupy darknet lead to the creation of a “LII-in-your-pocket”? Not sure. But however you might spin it the “LII-in-a-Box” is a project worth investigating.
At Above the Law, Elie Mystal points out that most employers still go for prestige, not a practice-ready certificate:
The practice-ready debate isn’t trying to address the problem that law grads are having. It’s trying to address the problem that law schools are having attracting fresh meat.
Lawyers are interrupted a lot, as often as every three to ten minutes. The difficulty of recollecting our time when we are interrupted so often can be more than a nuisance; it can be a real ethical problem if not carefully managed.The Risk of Over- and Under-Billing Amidst Interruptions
Ethical rules require attorneys to accurately account for their time. ABA Model Rule 1.5 requires a lawyer’s fees to be reasonable. ABA Formal Opinion 93-379 stated lawyers may not bill for more time than they actually spend on a matter. The potential ethical problem of billing amidst interruptions is that attorneys inadvertently bill for time spent checking texts or email more than any of us want to admit.[M]ore than almost any other type of worker, lawyers overestimate the amount of time they spend working.
Lawyers aren’t being malicious when they bill for time spent checking email, Facebook, and Twitter. Rather, accurately accounting for time is virtually impossible with all the interruptions we face.
Was that Facebook break ten or twenty minutes? Did we spend five minutes or twenty minutes writing that email? These distractions happen so often that we have trouble even remembering them all. This is not a small issue: the onslaught of Interruptions is so great that the couple of minutes spent dealing with interruptions here or there add up over the days and weeks.
Lawyers can also easily lose track of calls, emails, and short periods of time spent on matters. That leads to a failure to capture and bill time actually worked. While it is not an ethical issue to underbill, this obviously harms your revenue stream.
A big part of the problem is that humans are terrible at accurately reporting how long they spend doing tasks. One study showed that people underestimated how long they spent watching TV by about 4.3 hours per week, as compared to data collected from their TV monitors. Another study found that college students overestimated the time they spent on Facebook by about two hours a day.
There is no reason to believe lawyers are any better at estimating how long they spent dealing with a matter in the face of distractions. In fact, some evidence suggests that lawyers might be even worse than other people at reporting how long they work. An analysis of the American Time Use Survey examined the disparity between estimated and hours spent working and actual hours (as measured by real-time time diaries, considered by many the gold standard in self-reported time). The analysis found that, more than almost any other type of worker, lawyers overestimate the amount of time they spend working.How to Ensure Accurate Timekeeping While Facing Interruptions
Ensuring accurate timekeeping requires a healthy dose of self-awareness and possibly some difficult habit changes.
The first step is to take an honest look at how you are spending your time. Once you are aware of where your attention actually is, you can direct where you want it to be. If you experience a lot of distractions, classify them into two categories:
If you are interrupting your own work, try to figure out what triggers you to self-interrupt. What is going on right before you interrupt your own work? Perhaps you feel bored so you visit Facebook. Or you feel nervous that you’re missing out on important information, so you open your email. According to Charles Duhigg, author of The Power of Habit, most habits are part of a loop that begins with a cue. If you can identify your cues — the prompts or feelings that cause you to interrupt yourself — you can start to change the habit of self-interrupting.
Once you are aware of your triggers, you can begin developing more productive responses to the cues. For example, if you distract yourself when you hate the task at hand, perhaps you should force yourself to go ten more minutes, and bill accurately for that ten minutes. Then you can give yourself a real break. If you check Facebook when you have writer’s block, think of using writers’ prompts or other tools to break through. You’ll not only finish the task sooner, but you’ll also be able to more accurately bill.
External interruptions require a different approach. If you have an assistant, you can ask him or her to monitor your calls and emails for you. Tell your assistant to interrupt you only for true emergencies. If you don’t want to or can’t rely on an assistant, a well-crafted out of office message or voice message lets people know that they shouldn’t expect an immediate response from you.You can explain that you are working on high-priority projects and will respond to messages at certain times.
It’s a good idea to explain your clients why you may not be immediately available (absent emergency) during certain times of day. More likely than not, clients experience many of the same distractions you do and will understand the value of uninterrupted time. This allows you to be responsive when necessary and still maintain interruption-free times.Using Applications to Reduce Distractions
There are a lot of applications designed to help you minimize distractions. These may help you become more aware of how often you’re interrupted. That said, these apps don’t address the root causes of your interruptions — your boredom, fear, or whatever is driving you to self-interrupt. But if you need to force yourself to get a task done without getting distracted right now, these will apps will help you get the job done. And over the long haul, these apps can help you understand your triggers better so that you can develop lasting solutions.Strict Workflow
Although this Chrome extension lacks some design polish, it more than makes up for that in practicality. Strict Workflow blocks popular time-sucking websites such as Facebook, Twitter, and Reddit for a default of twenty-five minutes. And to keep you focused, Strict Workflow blocks you from editing your list of blocked sites until the timer is up.SelfControl
SelfControl is an open-source mac app that works much like Strict Workflow, but really sticks it to those who go to extreme lengths to check their Facebook messages. Even if you uninstall the app and restart your computer, SelfControl will continue to block your websites until the allotted time is up. Extreme, I grant you, but effective.Focus out Distractions
If you find yourself glued to your smartphone when you should be writing a brief, this Android app will block all your other apps for a duration of time that you set. This app is also free and has no ads.
The final trick to crafting accurate-as-possible bills is to enter the time contemporaneously to the work. The sooner you enter your time, the more likely you are to be accurate. You’ll never control or eliminate interruptions completely, but you’re more likely to remember how long you spent on a matter when you worked on it this morning than when you worked on it two weeks ago.
The ethics risks of billing in distraction flood zones depend on how severe the distractions are and the billing practices of each attorney. But what’s clear is that more focused, less distracted workplaces are better for your client’s pocket and for your personal sanity.
Featured image: “Closeup portrait serious businessman signing contract without looking at document” from Shutterstock.
What is it about social media that make them such a hot topic these days, even for lawyers, as this new book demonstrates? I suggest it’s all the people. Other areas of technology can be dry or technical or mystifying, other areas of law can be the realm of big corporations or telecoms or governments. Social media combine cutting-edge technology with real human beings just doing what we do – spouting ideas, going places, making pictures, telling stories. The topic is more about us than most of the others in law or technology.
Social media do not have all their own law, however. The usual laws that apply to people doing anything apply to them online and on social media. Social media law sits on top of Internet law, since all social media rely on the Internet to work, and Internet law in turn branches into commercial, IP, privacy, labour and other fields.
Paul Lomic, a civil litigator, has assembled an experienced group of Toronto practitioners to tell us about the law of social media and to show lawyers how to practise it, with forms and precedents. The result is a pretty useful introductory guide that should help orient those who have not thought much about it, and refresh the perspective of those who have. The style is accessible, the law is accurate (though of course in this field more than most, subject to change) and the precedents a good cross-section of what one is likely to need. Besides their printed versions, the precedents come on a CD to make them easier to use.
One of the principal uses people make of social media is to communicate with the world – starting with family, friends and co-workers. It is not surprising that much of the focus of the book is on the impact of these self-directed communications. Three early chapters deal with employment issues, including why and how employers should establish social media policies and how both employers and employees can get into trouble without them. Such policies come up again in the chapter on defamation and in the chapter on intellectual property. Clearly social media make it harder than it used to be to get employees to control their speech.
Another chapter deals with social media and marketing, with special attention to games and contests on different platforms. The privacy chapter provides a very thorough and expert discussion of several aspects of the field, though it does not particularly set out the impact of privacy rules on social media users apart from anyone else. It includes a review of Canada’s anti-spam legislation (CASL), which reappears in the following chapter on e-commerce. A final chapter touches on civil litigation, where social media affect discovery, admissibility of evidence, and the decorum of the courtroom, among other impacts.
Not everything about the legal operation of social media is special, however. Some chapters of the book focus on broader Internet law issues, like e-commerce, as noted. That chapter mentions briefly the evolution of mobile commerce, noting the difficulty of doing full disclosure of terms and conditions of sale, as required by consumer protection laws, on phone screens. It does not explore commercial aspects of the social nature of the media, or the uses of mobile devices as payment systems. The chapter appends a couple of contracts for use of a web site, though the main text does not explain why an online merchant would want or need to impose the conditions on a user or test the realism of asking a consumer to click his or her agreement to several pages of fairly dense text. The site conditions themselves are not controversial.
Many social media rely on dealing with data in the cloud, and a separate chapter sets out the basic issues in cloud computing, and offers models of contracts with cloud service providers. The degree to which such agreements are in practice negotiable may be changing as the field becomes both more competitive and more sophisticated. Having a reasoned checklist and source of potential clauses will be useful.
The book gives nearly 200 pages to a discussion of domain name issues and a large number of precedents, from registration to dispute resolution. It is not as clear as it might be whether the topic has much connection with social media. It is clearly Internet law, but the subject may occupy more space in this discussion than the topic takes in a normal online practice, much less one with a social media focus. That said, the discussion is well-informed, accessible and interesting.
Social Media and Internet Law seems to be aimed at the middle ground between whose who want a deeper examination on the purely legal questions, such as Barry Sookman’s several-volume treatise or the standard textbooks – since the individual treatments of the subject here are relatively brief, though accurate – and those who simply want to find a relevant form. For the latter, O’Brien’s Encyclopedia of Forms (11th ed.) has four volumes of forms on computers and information technology, including many forms on e-commerce and the Internet, cloud computing, and web development and use. LexisNexis’s Canadian Forms and Precedents has a chapter in its Commercial Transactions section on Internet and E-Commerce Agreements, essentially a very detailed ‘commentary’ followed by checklists and forms.
However, the treatises and the forms books can be pretty imposing and pretty expensive. Mr. Lomic and his colleagues have provided a point of access to the social media field and its legal context that will no doubt be welcome to a number of practitioners.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Cut Your Library Nose Off to Fight for Space
File this one under different perspective. There is a tension in courthouse libraries. Keep in mind that, in most cases, whether the courthouse law library is funded by the local or regional government or by membership dues, the library is almost always run by the local bar and/or bench in North America. This means that you have competing interests over what the library is supposed to be and what it is supposed to do….
Forty hours on privacy
I will be teaching, for a third consecutive year, DRT-6929E-A, a privacy law course at the University of Montreal Law Faculty. The class is offered to Masters degree students and takes place every Monday from 4 to 7pm, January 12 to April 13, 2015. I have been teaching since 2009 (e-commerce law from 2009 – 2013) and every year, I really look forward to teaching. Here’s a summary of my 40 hour privacy course…
Le 21 novembre 2014, la Cour supérieure a infirmé une décision de la Commission des relations du travail (CRT) qui avait refusé de se prononcer sur la continuité de l’entreprise de l’employeur – une résidence pour personnes âgées – au motif qu’elle avait épuisé sa compétence. Il s’agit de l’affaire Turcot c. Commission des relations du travail….
Last month, the Supreme Court of Canada (“SCC”) delivered a single-paragraph oral judgment in the matter of R v Day, 2014 SCC 74, dismissing an appeal from the Supreme Court of Newfoundland and Labrador Court of Appeal (“NLCA”), 2014 NLCA 14 [Day]. The SCC’s affirmation of the appellate court’s decision seems to indicate that it is willing to accept minimal corroboration of an informant’s tip as the basis for a lawful unwarranted arrest….
Ontario Condo Law Blog
Top 10 condo law cases of 2014
Happy New Year. Our picks for the top 10 condo law cases of 2014 is an all-Ontario batch, with half being important Court of Appeal rulings. Some of them highlight the dire need for significant revision to our condo law….
*Randomness here is created by Random.org and its list randomizing function.