What’s Equivalent to a Handwriting Expert for E-Signatures?

The Lawyerist - Fri, 11/13/2015 - 12:07

Any debate over the validity of e-signatures is silly. Of course e-signatures are valid. You can agree to a contract with any clear manifestation of intent.

Party of the first part: If you agree to be bound by this contract, give me a wink and a nod. Party of the second part: <winks and nods> Party of the first part: Done. Judge: All good.

The hard part is proving someone agreed to a contract when they deny it. That, it seems to me, is when “wet” signatures have an advantage over e-signatures. You can bring in a handwriting expert to testify that the signature matches the witness’s other signatures. You can bring a pen expert to testify that the ink matches the witness’s favorite brand of pen. You can test the coffee stains on the contract for DNA.

How do you do that with an e-signature? With a proper e-signature service, you’ll get lots of circumstantial information generated by the computer on which the signature was made. Here’s what we get from HelloSign, for example.

But look closely. There’s an IP address, an email address, and some time stamps. There is no proof of who was using the computer at that IP address, or of who was logged into that email account. And if that seems unimportant to you, how many of you — not to mention your clients — share a user account on the same computer? How difficult would it be for you to sign into your spouse’s account? Or a family member’s? How often do you see Facebook posts from a friend, spouse, or someone who sat down in the computer lab to find the previous user still logged in?

I think it is a lot harder to effectively forge someone’s signature with a pen than it is to access someone else’s email account using their computer.

Does this mean e-signatures are no good? Of course not. Most of the time the debate is over the form and interpretation of the contract, not over whether someone signed it. E-signatures are perfectly fine when everyone agrees they signed the document. But in the narrow case where a party denies signing the document, I can’t see how an e-signature is equivalent — much less superior — evidence to a wet signature.

I’m not positive I’m right about this. Maybe I’m missing something. If I am wrong or missing something, or if I’m overstating the problem, I’d like to hear about it in the comments.

Featured image: “a signature and a fountain pen on yellow paper” from Shutterstock.

What’s Equivalent to a Handwriting Expert for E-Signatures? was originally published on Lawyerist.

Categories: Teknoids Blogs

Will Facebook Overprotect Privacy?

slaw - Fri, 11/13/2015 - 07:12

According to the English media, Facebook is thinking of generating an automatic warning to a member who posts a picture of a child to a publicly-accessible page on Facebook.

Is this a serious over-reaction to the threat that the kid – or the parents – face from such a posting? How many people are actually affected by predators of any kind using online pictures? What proportion are those victims of the numbers of people whose pics are on FB?

Is this a tactic by FB to appear to be concerned about privacy when its entire lucrative business model is built on selling its members’ personal information in various ways?

Categories: Teknoids Blogs

Proper Deposition Objections

The Lawyerist - Fri, 11/13/2015 - 07:12

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself.

Related “Six Steps to Better Depositions”

Preparing your client

First things first. You must prepare your client for the deposition. Start by reviewing the case with your client, along with the questions you anticipate will be asked. Practice asking questions you think the deposing lawyer will ask — especially the hard questions you hope will not be asked.

If you are representing the plaintiff, review the complaint and walk through the facts alleged. Discuss the defenses raised and how the plaintiff might respond. Examine the damage calculations.

If you represent the defendant, reflect on the facts alleged in the answer. Discuss the defenses, and particularly the reasoning and factual support for each of them. If your client brought a counterclaim, cross-claim, or third-party claim, make sure your client understands the damages, including how they were calculated.

No matter which party you represent, carefully walk through the discovery responses. Play devil’s advocate with your client and challenge him or her with the hard questions.

Remember, the purpose of a taking deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible; the standard is could the information you are seeking lead to admissible evidence? So, information you cannot seek in trial can be fair game in a deposition and that is the beauty of depositions.

Remind your client of the following:

  • Answer only the question asked. For example, if you are asked what day it is, answer “Tuesday,” not “it is Tuesday and it’s my daughter’s birthday today and the sun is out.” (At the deposition, make sure you are sitting close enough to your client that you can kick him under the table if he is talking too much. I have had to do that during many depositions!)
  • If you do not understand a question, ask for clarification.
  • Do not get upset or otherwise react to the questions. Body language can be very revealing.
  • Do not look at your lawyer for help.
  • Don’t be afraid to say “I don’t know.” Do not speculate or guess.
  • Ask to take a break if you need one. (Be careful of what you discuss during the break; it is probably discoverable once the deposition resumes.)

Depositions can be tedious, but they are so important in litigation. Deposition testimony can make or break a case. It is sworn testimony that can be used to impeach at trial. It can expose the relative strengths and weaknesses of each party’s case. It can lead to crucial admissions or denials of liability. Through deposition testimony, you can truly push for quantification of damage claims.

When I was preparing to take my first deposition as a new lawyer many years ago, I sat down and read a book about deposition techniques. I was surprised to learn that very few objections are proper in a deposition. After observing several depositions, I discovered that many lawyers have not learned this. Lawyers often make deposition objections that are improper and interrupt the flow of information. And there are lawyers who have learned which objections are proper, but who make improper objections simply to interrupt and to intimidate opposing counsel.

Making improper deposition objections does interrupt the flow of the deposition, so you may think it hurts the lawyer taking the deposition. It can also interfere with your client’s concentration, and it can lead to a loss of credibility for the lawyer who continues to object.

No matter how opposing counsel behaves, keep your cool at all times. This is not always easy. If the other lawyer starts yelling, note his tone of voice on the record. (So the court reporter can take down your comments, say something like “let the record reflect that Mr. Jones is shouting” out loud.) If the lawyer gets out of control, you may wish to dictate a play-by-play of what is happening (“Mr. Jones is now standing up, leaning over the table, pointing his finger in my face and continuing to scream”). Above all, stay calm, make a clear record, and get the judge on the phone if necessary.

Improper deposition objections

  • Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is too far afield, though, a relevance objection may be warranted. The line is hard to draw here. It boils down to a judgment call on whether the question is likely to lead to admissible evidence.
  • Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if your client is asked “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. If you are taking the deposition, you can determine based on the answer whether you should take Jane’s deposition, and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial. Remember, the reason you can’t ask someone else what Jane said at trial is that you need to be able to cross examine Jane to determine her credibility. (There are, of course, exceptions that I won’t discuss here.)
  • Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence. For example, it is permissible to ask “If you had known X, how would you have behaved differently?” However, be careful here, as this could be a proper objection depending on the question. Do not let your client speculate and object if the question calls for speculation. You may want to let your client answer if she knows how she would have behaved if she had known X.
  • Calls for an opinion. Foundation does not need to be established to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion.Q: “Do you think that the brakes were in working order on the Toyota?”
    A: “No.”
    Q: “Why not?”
    A: “When I drove it 2 weeks before the accident they were acting funny.”

    The lawyer taking the deposition can obtain information that may not otherwise have been received in written discovery and the answers can lead to discoverable evidence.
  • Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. The lawyer cannot say that she does not understand the question. It is up to the deponent to ask for clarification. “If you know” and “if you remember” are coaching objections. However, you may ask, “Who is she?” when the deponent uses the word “she” unclearly in a question. That is not speaking or coaching, because it does not suggest the answer. Objections must be stated succinctly in a non-argumentative and non-suggestive manner.

Do not let yourself get bullied by an opposing counsel who is making improper objections. If several improper objections are made, there are a few ways to respond. You can ask, for example, why the objections are being made, as they are not required for the record. Be prepared for that to lead to an argument.

If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition.

Inform the deponent that unless her lawyer instructs her not to answer, that she should answer the question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)

Proper deposition objections

  • Privilege. This is the big one. It must be made or it is waived. This covers any privilege, such as attorney-client and physician-client. Object if your client is asked what he said to his lawyer. Of course, the deposing lawyer can properly ask “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is also the one case in which you should instruct your client not to answer. If the opposing lawyer continues to attempt to invade the privilege, you can threaten to terminate the deposition. If the privilege questions continue, terminate the deposition.
  • Form of the question. This objection is usually asserted to make a clear record. Form questions fall in several categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require that the type of form objection be stated as well. Form questions are waived if they are not made during the deposition.
    • Compound. If the question is compound and the person answers yes, what portion of the question are they agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question at a time.
    • Confusing. I know I stated above that it is improper to ask for clarification, but it depends. If the question is truly confusing, an objection may be proper.
    • Calls for speculation. A form objection should also be made to a question that calls for the witness to speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
  • Mischaracterizes earlier testimony. This is also to make sure there is a clear record. For example, if the deponent earlier stated he was not sure of his speed, and was then asked: “So you testified earlier that you were speeding …” it is proper to object as mischaracterizing earlier testimony. The deponent said she did not know how fast she was going; she did not admit she was speeding.
  • Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than he gave earlier in the deposition. If you don’t make the objection and your client does provide differing information, your client loses credibility. And the testimony can be used for impeachment at trial. The opposing lawyer may not realize that he asked the question earlier, and making the objection can throw him off and make him doubt himself.
  • Calls for a legal conclusion. Deponents are there to testify about facts, not legal conclusions. If the deponent is a lawyer, it may be a proper question, depending on the circumstances. Otherwise, it’s not.
  • Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, describe the specific conduct that is objectionable for the record, and further state on the record that you will terminate the deposition if the behavior continues. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed or bullied. As with privilege, if the lawyer does not stop the harassment, terminate the deposition.

Many lawyers underestimate the importance of depositions. Whether you are defending or taking a deposition, knowing how to make and respond to objections, will lead to a more effective and productive deposition.

Originally published 2013-10-15. Last updated 2015-11-13.

Proper Deposition Objections was originally published on Lawyerist.

Categories: Teknoids Blogs

Innovating Tribunals & Being Open

slaw - Fri, 11/13/2015 - 07:00

Two recent situations have led to calls for international accountability mechanisms. The responses to these calls differ widely. Why is this interesting? They show the potential of a more open justice innovation approach. And the costs of not doing so.

The first situation is the tragic downing of flight Malaysian Airlines flight MH17 over Ukraine on 17 July 2014, which led to 298 deaths. Politicians from the counties that suffered most losses – The Netherlands, Australia, and Malaysia – where quick to capture the public sentiment and announced: those responsible will be held to account. This was given international force in Security Council resolution 2166 (2014) in which the Council demanded “that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”. The Dutch Safety Board led an international investigation into the loss of the plane that led to a final report. A key conclusion is that the plan was in fact shot down, and that the weapon was a “9N314M-model warhead carried on a 9M38-series of missiles, as installed on the Buk surface-to-air missile system”. The Safety Board investigation did not deeply investigate the exact place from which the missile was fired; it did say that the area from which the flight path of the missile could have commenced measures around 320 square kilometres in the East of Ukraine. This is where Russian backed rebels were active.

The second situation concerns wildlife crime. From 2007 to 2014 rhino poaching in South Africa alone increased by almost 12.000%. The first third of 2015 has already shown an increase of 18% compared to 2014. The numbers regarding elephants are not much better: the results from a recent survey showed that in Tanzania alone as much as 85,000 elephants are likely to have been killed between 2009 and 2014, a decline of 60%. In Mozambique, poachers killed half of the elephant population in five years. At the moment, trafficking in rhino horn and ivory is more lucrative than trafficking in cocaine. It is not limited to rhino horn and ivory: lizards, snakes, tigers, birds, pangolins, fish stocks are also part of this global trade. Trafficking wildlife is part of the business model of violent groups like the Lord Resistance Army, which commit atrocities at a large scale. It fuels corruption, money laundering, exploitation of vulnerable groups and tax evasion, and destroys the essential trust that is a foundation for prosperous and sustainable communities. National accountability mechanisms are failing spectacularly.

In the first situation the Dutch prosecution service – with the participation of international partners – is conducting a criminal investigation. However, it is felt that a purely national procedure will not suffice. So efforts are under way to set up an international accountability mechanism. But it is hard, even for a relative insider like me, to know what is going on in that process. It is closed, political, and led by ministries and diplomats. There are no real communications to the outside world. From what can be picked up, existing tribunal models are the point of departure. Using the Yugoslav Tribunal precedent, an attempt was made to pay the legal basis for the tribunal in a Security Council resolution. That, at least for now, failed because of a Russian veto. The thinking about the procedure for the new accountability mechanism appears to be based on precedents like the Special Court for Lebanon or the Lockerbie tribunal. Over the year after the crash, we don’t have the accountability mechanism yet.

In the second situation, a broad international stakeholder group, led by World Wildlife Fund The Netherlands and HiiL Innovating Justice, set up the accountability mechanism. The process took a set of requirements as its basis, which included a clear theory of change based on a deep understanding of the criminality involved and how disrupting that criminality can best disrupt the trade (the ultimate goal) and a good understanding of the surrounding landscape of other efforts to make sure the new initiative leveraged those where possible. Contrary to the MH17 process, a deliberate, open innovation process was initiated, which included many different disciplines and expertise. Ultimately, this process led to the setting up of the Wildlife Justice Commission, launched two weeks ago in the Peace Palace.

Of course, we must guard against comparing the two situations too easily. One thing stands out: the entirely different ways in which the process to get to the best accountability model is organised. The MH17 process is closed, without the involvement of real outsiders and other disciplines. It seems to be leaning on existing models while there is every reason to ask whether existing models are the best way to deal with accountability in this case. To name one point: flight MH17 does not seem to have been shot down deliberately as part of a deliberate plan to wipe out a certain ethnic group or to commit acts of terrorism, but the models developed for such cases are being used as a mould. In addition, the process of setting up the new mechanism is slow: more than a year has passed since the downing and no start date seems in sight.

Innovation is possible, even in the justice sector. Everything we know about innovation tells us that opening up, knowing your market, and looking for odd coalitions, are key components for success. What will it take to break open governments and ministries so that they innovate in accordance with what is now known about making innovation work?

Categories: Teknoids Blogs

How to Prove That a Computer Uploaded Documents to the Cloud

slaw - Thu, 11/12/2015 - 16:36

In R. v Cusick, the Ontario Superior Court upheld a search warrant of a computer where that computer was suspected of having been used to upload child pornography to a cloud storage service.

What one searches for, apparently, are ‘artifacts’ – digital traces of the child porn files that passed through the computer on the way to the cloud. The case notes the difference between uploading from the computer’s hard drive (in which case the files may also still be on the computer) and uploading from a USB drive or mobile device (in which case they may not be, but there may be ‘artifacts’.)

When one has access to the images in the cloud and the artifacts on the suspect’s computer, a link can be sufficient to justify a conviction for possession (and presumably trafficking, if the evidence were right.)

Para 120ff of the judgment have some detail about linking the cloud images to the suspect’s computer.

So … it’s not that easy to hide things in the cloud (not that anyone reading this note would want to.)

Does that make sense to you?

[h/t Barry Sookman]

P.S. How did the police find the images in the cloud, in order to connect them with the suspect’s computer? Apparently Microsoft has developed with a university a photo recognition program and runs that program against all the stuff stored in its cloud service (Skydrive). When it finds a match, U.S. law requires it to report to a national clearing house, which then forwards material originating in Canada to a Canadian counterpart, which in turn forward the information to local police for investigation. R v Cusick deals with how the police developed enough information to justify a search warrant for the suspects’ computers. So in this case, it started in the cloud and came to ground afterwards.

Query: if one encrypted the documents/images that one uploaded to the cloud, could the recognition tool work? One suspects not.

Categories: Teknoids Blogs

My Twitter Digest for 11/11/2015

<CONTENT /> v.5 - Thu, 11/12/2015 - 15:30
Categories: Teknoids Blogs

Manitoba Customer Service Accessibility Standard in Force and Other Accessibility News

slaw - Thu, 11/12/2015 - 09:00

The Manitoba Customer Service Accessibility Standard (CSAS) under the Accessibility for Manitobans Act (AMA) came into effect November 1, 2015. The CSAS requires all of Manitoba’s public, private and non-profit organizations with one or more employees that provide goods or services directly to the public or to another organization in Manitoba, to establish and implement measures, policies and practices to remove barriers for access to the goods or services it provides.

The final version of the Customer Service Regulation can be found here.
There are different timelines for organizations to meet the standard:

  • The Manitoba government must comply within one year: by November 1, 2016
  • The public sector must comply within two years: by November 1, 2017
  • Private and non-profit organizations must comply within three years: by November 1, 2018

According to the Customer Service Standard Regulation:

“accessible customer service standard is provided when all persons who are reasonably expected to seek to obtain, use or benefit from a good or service have the same opportunity to obtain, use or benefit from the good or service.”

An organization’s accessibility measures, policies and practices must also meet the requirements and obligations under the Manitoba Human Rights Code.

This means organizations must:

  • First understand that people with disabilities may have different needs requiring small or large changes or accommodations to how the organization serves customers with disabilities.
  • Review existing policies, practices and procedures for serving customers and make changes to those that exclude or limit participation and access to their goods and services by persons with disabilities. For the purposes of this standard, customer service refers to practices, processes and interactions that lead to the fulfillment of a transaction, exchange or customer requirement or need.
  • Consider how best to communicate with persons with disabilities by making reasonable efforts to ensure that, when communicating with a person who is disabled by a barrier, the communication is done in a manner that takes into account the barrier.
  • Recognize that a person who is disabled by a barrier may use assistive devices to remove or reduce the barrier, and put in place measures and practices that must reasonably accommodate the use of those devices.
  • Recognize that a person who is disabled by a barrier may, when seeking to obtain, use or benefit from the organization’s goods or services, be accompanied by a support person. Accommodation must be made to allow the support person to accompany and enter the premises at the same time as the person with a disability. A person with a disability must be able to have access to the support person at all times while on the premises. If a fee is required, the customer must be notified of the amount in advance.
  • Recognize that a person who is disabled by a barrier may be accompanied by a service animal when he or she seeks to obtain, use or benefit from the organization’s goods or services.
  • Ensure that (a) accessibility measures, policies and practices include a requirement that any aspect of the organization’s built environment intended to facilitate barrier-free access to the goods or services it provides are available for use in the intended manner; and (b) if such an aspect is unavailable for use, notice of the following be given: (i) the reasons why the aspect is unavailable and an estimate of when the availability will be restored, (ii) details of alternate means, if any, available to access the organization’s goods or services. The notice must be prominently displayed on the applicable premises and on the organization’s website, if any, or be given by other means that are reasonable in the circumstances.
  • Make reasonable efforts to ensure that the organization provides a process for (a) receiving and responding to feedback about the accessibility of its goods or services in a manner that is appropriate in the circumstances and is suitable for persons who are disabled by barriers; and (b) documenting its resulting actions and making that documentation available on request.
  • Document the measures, policies and practices it establishes and implements and must provide a copy of the documentation on request, if the organization has 20 or more employees. It must also provide notice that the documentation is available on request. The notice must be prominently displayed on the applicable premises and on the organization’s website, if any, or be given by other means that are reasonable in the circumstances.
  • Comply with the measures, policies and practices that it establishes and implements.
  • Ensure that training about accessible customer service is or has been provided to employees, agents and volunteers who provide goods or services directly to the public or to another organization in Manitoba on behalf of the organization. Training must also be provided to a person who participates in the development and implementation of the organization’s measures, policies and practices. The training must include a review of the purposes and principles of the Act; how to interact and communicate with persons disabled by barriers; how to interact with persons disabled by barriers who use an assistive device or require the assistance of a support person or service animal; how to use any equipment or assistive devices that may be available to assist persons disabled by barriers; and, what to do if a person disabled by a particular barrier is having difficulty accessing a good or service.
  • Ensure that training is provided to a person as soon as reasonably practicable after the person is assigned the applicable duties and ongoing training is provided in connection with changes to the organization’s measures, policies and practices respecting providing barrier-free access to the goods or services it provides. In addition, organizations with 20 employees or more must have the training policy in writing.

Furthermore, an organization that holds a public event must take reasonable measures to ensure that:

  • Notice of the event is given in a manner that is accessible to persons disabled by barriers
  • The event is held in a meeting space that is accessible
  • The physical and communication needs of persons disabled by barriers are met on request and
  • Notice is given that persons disabled by barriers may request that relevant supports be provided

A “public event” includes a public meeting, a public hearing and a consultation process required under an enactment.


On December 5, 2013, the Manitoba government passed The Accessibility for Manitobans Act (Bill 26). The law enables the establishment of accessibility standards to achieve accessibility for Manitobans disabled by barriers in various areas of daily life.

The standards will require persons and organizations to implement measures, policies or practices or do such things as are specified in the standard in order to identify and remove, and prevent the erection of, barriers for persons with disabilities with respect to the following key areas:

  • The Customer Service Standard addresses business practices and training requirements to provide better customer service to people with disabilities
  • The Employment Accessibility Standard will address practices related to employee recruitment, hiring and retention
  • The Information and Communications Standard will address barriers to accessing information-information provided in print, in person, on websites or in other formats
  • The Built Environment Standard will deal with access to those areas outside the jurisdiction of The Manitoba Building Code, such as sidewalks, pathways, parks and other aspects of the environment that that are designed and constructed
  • The Transportation Standard will address barriers Manitobans might encounter while getting to work or school, shopping, socializing and other aspects of daily life

The AMA standards are similar to what is already established in Ontario under the Accessibility for Ontarians with Disabilities Act (AODA) and its associated regulations. However, Manitoba has already planned for accessibility standards for education and the health sector.

Each standard will outline specific requirements and timelines for organizations that have a responsibility to eliminate barriers. Non-compliance may result in administrative fines and penalties.

The Manitoba government is working with representatives from the disability community, as well as public and private sector organizations to develop accessibility standards. The first standard that was developed and is now in force is the Customer Service Standard.

What comes next?

Nova Scotia and British Columbia are proactively working to increase accessibility for persons with disabilities and thinking of implementing accessibility legislation in the process. New Brunswick, Saskatchewan and Newfoundland and Labrador are holding dialogues on various issues designed to increase the participation, inclusion and employment of persons with disabilities.

Several interested stakeholders are calling for a national Canadians with Disabilities Act to cover the key areas stated above, but also to standardize the requirements across the federal government instead of the patchwork of multiple tools employed in multiple policy areas. For example, Canada is in the process of establishing new web accessibility standards, which will come into force on April 1, 2016. Not all Canadian government bodies need to follow the new standard; they only apply to the government agencies identified in Schedules I–III of the Financial Administration Act. Second, not all web pages have to be made accessible and not all at the same time. In addition, Transportation Canada already has responsibilities for removing undue obstacles to the mobility of persons with disabilities from federal transportation services and facilities.

The new Liberal government has confirmed that it intends to enact a Canadians with Disabilities Act and has appointed Carla Qualtrough, a person with low vision, the Minister of Sport and the Minister for People with Disabilities.

It will be very interesting to follow the progress of this issue at the federal level as this will likely involve a broad-ranging nationwide discussion of disability and accessibility. Moreover, a national Canadians with Disabilities Act could provide a blueprint for similar legislation across the country. I find it very reassuring that our governments are acting or starting to act on this issue that will affect more and more Canadians over the coming years. It seems like a sign that we are capable of taking proactive steps to address important societal matters and issues before they become too big to manage.

Categories: Teknoids Blogs

Sample File Opening Checklist

The Lawyerist - Thu, 11/12/2015 - 07:12

Client onboarding is the process by which you bring a new client into your firm. If you don’t have a client onboarding process, you should.

You should welcome new clients, set expectations for the attorney-client relationship, teach them anything they need to know about working with you, and complete the administrative tasks necessary to open their client file. A little effort up front makes for a positive experience, makes it less likely you will miss things, and makes it more likely your client will become a promoter.

The backbone of your client onboarding process is your file-opening checklist. Here are the things you should check off as soon as possible after a new client signs your retainer agreement. (I’ll be using MyCase as an example of how to implement a file-opening checklist in your practice-management software.)

Welcome Your New Client

Your client welcome package can be digital or physical. Either way, you should give it to your client as soon as possible after they sign your retainer agreement. You could hand your client a folder, send them an email, or mail them an actual package.

At a minimum, you should include a copy of their retainer agreement, your preferred contact information, and any tasks you need the client to complete. If you want to do something a little extra to make new clients feel welcome, you might include a care package with a thoughtful gift.

Align Expectations

Give your clients a roadmap to their legal matter. This could be a conversation (that you will probably have to have more than once) or it could be a timeline you prepare for them.

Tell your clients how often they should expect you to check in, and commit to returning their calls and emails within one business day. If you don’t want clients to expect you to respond immediately after hours, make sure they know that at the outset of your relationship.

Also, make sure you and your client are on the same page when it comes to the outcome of the representation. If you are pursuing one goal and your client is hoping for another, they are probably going to get angry.

Talk to Your Clients About Computer Security

Make sure your client knows how to get access to your secure communication portal, and make sure you follow up as necessary to get them up and running with it.

Since clients’ comfort level when it comes to technology may vary, you might want to help them set up their login credentials in person. It would also be a good idea to discuss basic computer security with them. Make sure they know not to open correspondence from you on their work computer, and show them how to set up their own, password-protected account on their home computer so their family cannot access your communications and other information about the case.

Administrative Tasks

Finally, you obviously need to take care of the administrative bits, like making sure you have scanned all the documents from your new client, entered all the relevant contact information into your practice management software, given them a receipt for any retainer, etc.

Get it All Done

The key to making sure your client onboarding process goes off without a hitch is to use a checklist. Every. Single. Time. The good news is that your practice management software should have templates that let you build your file-opening checklist once and reuse it on every new case.

Here is what your file-opening checklist might look like if you use the Workflows feature of MyCase:

Click to enlarge.

Now, all you have to do when you open a new case is apply the Workflow.

If you do that every time you open a new case, you will never miss a step.

Featured image: “Businessman working with documents” from Shutterstock.

Sample File Opening Checklist was originally published on Lawyerist.

Categories: Teknoids Blogs

Public Interests Versus Private Interests

slaw - Thu, 11/12/2015 - 07:00

In August of 2015 Gerard Comeau of Tracadie, New Brunswick, was the defendant in a trial following an agreed statement of facts. In October of 2012 Comeau bought 14 cases of beer in Quebec which he brought into New Brunswick where he was stopped by the police. Comeau was charged under the New Brunswick Liquor Control Act with illegally importing beer into New Brunswick. The beer was cheaper in Quebec than in New Brunswick. Comeau was fined $292.

At trial Comeau argued that the limitations in the New Brunswick Liquor Control Act were unconstitutional because s. 121 of the Constitution Act, 1867 provides for free interprovincial trade.

Section 121 states:

“121. All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Professor Peter W. Hogg in his book Constitutional Law of Canada states at page 681: “The purpose of s. 121, supplemented by a common external tariff and common citizenship, was to make Canada a common market. S. 121 certainly preclude customs duties between the provinces. The question whether it goes further and precludes non-fiscal impediments to inter provincial trade has not been definitely decided.”

At Comeau’s trial a witness, Professor Andrew Smith of the University of Liverpool (U.K.) stated “The Fathers of Confederation wanted a comprehensive economic union. They wanted unfettered trade between the provinces.”

Economic unions can be in the public interest. This is because trade creates wealth (see Adam Smith, The Wealth of Nations).

The public interest can be defined as the welfare or well-being of the general public. The public interest in economic unions consists in the higher standard of living brought about by trade. The U.S.A. is probably the most successful economic union in world history.

On August 31, 2015 Prime Minister Stephen Harper stated that laws that prohibit people from taking alcohol across provincial borders are “ridiculous.” See The Canadian Press.

At Comeau’s trial a Crown witness (Tom Bateman from St. Thomas University in Fredericton) referred to several provincial policies that limit free trade between provinces. Bateman referred to the creation of marketing boards that restrict the ability of farmers to freely sell their products. Marketing boards are cartels that fix prices and limit competition. Lack of competition affects productivity – see footnote.

Should the public interest in interprovincial free trade be restricted by the limitations imposed by provincial governments?

I submit that provincial legislation protecting the interests of farmers and the interests of the sellers of alcohol should be subordinate to the public interest in free interprovincial trade.

FOOTNOTE: Prof. S. Charlebois of the University of Guelph reports in the Globe and Mail, October 14, 2015, that 100 kilograms of milk costs $72 to produce in Canada versus $35 in the U.S.A.

Categories: Teknoids Blogs

The Future of Automation in Litigation: Plotting Obsolescence to Survive

slaw - Wed, 11/11/2015 - 21:14

“The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify the inefficiency.” – Bill Gates

I predict that the first components of a litigation file to be completely automated are the drafting of:

  • Common Pleadings (e.g. Statement of Claim for “slip and fall”);
  • Affidavit of Documents; and
  • Discovery Plans for common actions.


These documents are rule based, and computer programs love rules. I envision a computer program asking questions at the beginning of the file based on the type of action, e.g. when did the accident happen? What were the injuries? Based on a formula, the program would then produce a checklist/timeline for the action, notice letters, and pleading. As the file progressed, the program would then organize all client documents according to materiality, relevancy, and privilege into an Affidavit of Documents. Following examination for discovery, the program would create an undertakings list and assist in answering undertakings, and so on, leaving the role of the lawyer forever changed.

As automation in litigation becomes common, disputes between lawyers will change. Lawyers will argue about the legitimacy of the formula used in drafting legal documents. In response, there will be a whole new body of law on what makes a formula credible and ethical.

Should lawyers be afraid of automation?

No. “To survive every industry must plot its obsolescence of what now produces their livelihood.” – The Formula By Luke Dormehl

Categories: Teknoids Blogs

Potential Legal Battle to Ensue Over Transit Employees’ Right to Strike

slaw - Wed, 11/11/2015 - 17:58

The Canadian Charter of Rights and Freedoms (the Charter) guarantees that everyone has the “freedom of association” (section 2(d)). The Charter’s guarantee of freedom of association has often been leveraged to protect employees’ rights in the labour relations context. According to recent media reports, the union that represents the Toronto Transit Commission (TTC) employees is looking to rely on section 2(d) to combat provincial legislation that declares the TTC an essential service and prohibits its employees from striking.

In January 2015, section 2(d) was successfully used to persuade a majority of the Supreme Court of Canada to declare Saskatchewan’s Public Service Essential Services Act (“PSESA”) as invalid. The PSESA included similar prohibitions against striking for those employees working for “essential services,” as defined in the legislation. At paragraph 51 of its decision, the Supreme Court of Canada held that the ability of employees to strike is essential to meaningful collective bargaining and that, in the circumstances of that case, the right to strike was constitutionally protected under section 2(d) of the Charter.

While the Saskatchewan decision certain gives some support TTC employees’ argument, the outcome of any legal challenge will ultimately depend on a court’s analysis of the specific legislation at issue. Freedom of association is not absolute; if the Ontario legislature can demonstrate that its essential services legislation is reasonable and justified in the circumstances, then a court may uphold the law and the TTC employees’ will remain unable to strike.

Categories: Teknoids Blogs

My Twitter Digest for 11/10/2015

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Categories: Teknoids Blogs

A Duty to Be Tech-Savvy?

slaw - Wed, 11/11/2015 - 13:25

Bob Ambrogi blogged this morning that two more U.S. states have adopted amendments to their legal profession rules of conduct that include technological competence as part of a lawyer’s overall duty of competence, bringing the total number of states having adopted this duty to 17. The duty first appeared in the ABA Model Rules in 2012, as Comment 8 to Rule 1.1, as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

States that have moved in this direction have taken a variety of approaches, mostly variations on the Model Rule Comment, as Ambrogi explains here.

In Canada, we’ve not yet moved in that direction. Indeed, a search of the Federation of Law Societies Model Code of Professional Conduct reveals that the word “technology” appears only one time, and that’s in the Preface to the Code:

The practice of law continues to evolve. Advances in technology, changes in the culture of those accessing legal services and the economics associated with practising law will continue to present challenges to lawyers. The ethical guidance provided to lawyers by their regulators should be responsive to this evolution. Rules of conduct should assist, not hinder, lawyers in providing legal services to the public in a way that ensures the public interest is protected.

The evolution of how lawyers practice law is indeed ongoing and advances in the arena of technology do continue to present challenges to lawyers. Some choose to face those challenges head on and become familiar with the tools that technology offers, but others respond to the challenge of technology by attempting to ignore it, pleading ignorance or running from it.

There is no question but that lawyers find themselves in a world in which technology increasingly impacts how they go about doing their business. It reaches well beyond office tools and practices into firm and client communications, information and document management, evidence gathering and document discovery, marketing and client development.

One could argue that a failure to understand current technologies to the extent required to assess risks and benefits, as required by the ABA Model Rules demonstrates a lack of competence. The Commentary to the Federation Model Rule on Competence (Rule 3.1-2) sets out that:

[6] A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should: (a) decline to act; (b) obtain the client’s instructions to retain, consult or collaborate with a lawyer who is competent for that task; or (c) obtain the client’s consent for the lawyer to become competent without undue delay, risk or expense to the client.

[7] A lawyer should also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other nonlegal fields, and, when it is appropriate, the lawyer should not hesitate to seek the client’s instructions to consult experts.

I wonder if most lawyers recognize that a lack competence for a technological task required in the representation of a client places them in a position where the retainer should be refused or a competent lawyer retained or such technological competence should be gained without undue delay, risk or expense to the client. And in some cases, this means that experts will need to be brought in to consult.

Generally I’m not inclined to address emerging issues through the creation of more detailed ethical and regulatory requirements. In most cases, a principled approach that provides appropriate guidance will suffice; however I find it troubling that the ethical guidelines for lawyers in Canada don’t even address in the most general way, the need to lawyers to keep abreast of the technology tools commonly used in legal practice and business environments.

Whether we go the route of the ABA and a growing number of states or craft our own Canadian response, it’s time we acknowledge the increasing ubiquity of technology in all aspects of legal practice and determine how best to ensure that lawyers are competent in its use. It may require an amendment to the definition of competence or maybe we need to dedicate some mandatory CPD hours to these issues. Ambrogi concludes with a challenge to lawyers:

You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology. Even if your state has yet to adopt this change, it is only a matter of time before it does. Don’t be a Luddite who fears or resists technology. Neither do you have to become a geek. Make an effort to understand the basics of the technology you use. Get on social media, if you’re not already. Ask questions. Learn. When it comes to technology, there is no more burying your head in the sand.

I have to agree. This is an area in which career-long learning is required. Change is ongoing and complacency won’t win the day. To remain relevant, efficient, effective and competent, lawyers must keep abreast of changes in technology, whether law societies require it or not.

Categories: Teknoids Blogs

James Bond, Spectre, and the Surveillance Society

slaw - Wed, 11/11/2015 - 09:20

I don’t normally do movie reviews, but Spectre, the latest James Bond movie, has a cautionary tale about the surveillance society that is worth commenting on. It deals with the undemocratic / totalitarian / dystopian aspects of ubiquitous surveillance.

Some reviewers have been critical about the movie, but my view of Bond movies is that they are more about entertainment than plot and character development.

Some elements of the movie are uncomfortably real – like its spin on the five eyes network . After I saw it I wondered what Ed Snowden would think. This is what Wikipedia has to say about Snowden’s thoughts about five eyes.

The former NSA contractor Edward Snowden described the Five Eyes as a “supra-national intelligence organisation that doesn’t answer to the known laws of its own countries”] Documents leaked by Snowden in 2013 revealed that the FVEY have been spying on one another’s citizens and sharing the collected information with each other in order to circumvent restrictive domestic regulations on surveillance of citizens.

The Intercept has a good article about the movie entitled Only Edward Snowden Can Save James Bond

From The Intercept article:

Knowing everything about everyone is actually of limited use to the good guys. But it’s hugely useful to the bad guys — be they extortionists, terrorists, or power-mad bureaucrats. And if it’s collected, somewhere, be assured the bad guys can get their hands on it.

While Bond is pursuing his super-villain, his boss M wages a losing bureaucratic war with C, who’s more of an NSA/GCHQ type. M inevitably describes the massive surveillance network that C is building as “George Orwell’s worst nightmare.” In response, C literally laughs at M’s devotion to the quaint notion of “democracy.” Subtle it ain’t, but the central point — that ubiquitous surveillance is an inevitably totalitarian tool, not just inappropriate for democratic society, but actively inimical to it — is often underappreciated in the current debate.

The movie also shows us what kind of hero we need to prevent such a dystopian future — and it isn’t Bond. It’s Q, who bears a striking resemblance to Edward Snowden.

When it comes to surveillance data, it’s hard to know who the bad guys really are. Depending on what it is used for, it can be those who should be protecting us. And if you think this information can’t get into the wrong hands, take a look at this article about the lack of security in an FBI database.

Categories: Teknoids Blogs

Fight Over Access to Justice in Washington Turns Ugly

The Lawyerist - Wed, 11/11/2015 - 07:12

Many state bar associations are wrangling with how to close the access-to-justice gap. In 2001, Washington’s state supreme court set up a Practice of Law Board to study the issue, as well as deal with the unlicensed practice of law. The Board proposed allowing Limited License Legal Technicians to perform limited legal services, which became law back in 2012.  But due to a long-running feud between it and the Washington State Bar Association, which included controversy over LLLT’s, four of the Board members resigned yesterday.

The resigning members of the Board laid out their concerns in a letter to the Washington Supreme Court (pdf), which accuses the Washington State Bar Association of systematically undermining their mission to help provide legal access:

The Board’s mission is laudable and we could have accomplished much to help increase the availability of legal services to the public if we had been allowed to do our job. Instead of advancing our mission during the past two years, we have spent more time and energy responding to and fending off the Washington State Bar Association’s efforts to undermine and eliminate our Board.

The letter details the twists and turns in its ongoing fight with the state bar over eleven pages, and ends with this:

The treatment of the Practice of Law Board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers: oppose their mission; cut their budget; withhold meaningful staff support; personally attack and seek to oust the volunteers who disagree with you; conduct secret meetings to discuss the future of the group without informing its volunteer members or inviting them to participate; dismiss or reject out of hand the volunteers’ concerns; and replace the group’s members and leadership team. There is no surer way to demoralize a group of volunteers and undermine their good intentions.

In a statement to the ABA, the Washington State Bar Association said the letter was full of “significant misinterpretations and misunderstandings.” It seems that everyone agrees that we need to fill the access-to-justice gap, but no one can agree on how.

Featured image: “Stock image of person wearing business suit and boxing gloves isolated on white” from Shutterstock.

Fight Over Access to Justice in Washington Turns Ugly was originally published on Lawyerist.

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 11/11/2015 - 07:00

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

For this last week:

1. R. v. Morris, 2011 ONSC 5142

12. The defence argued that, because the police did not believe Mr. Morris had committed an HTA infraction, they did not have an HTA-related purpose for stopping Mr. Morris’ vehicle. In so arguing, the defence pointed to Officer Ciric’s candid statement that, but for the “Caution”, he would not have pulled over the car. Because the stop was neither “random” as was the case in Hufsky, Ladouceur, Brown v. Durham and Nolet, nor based on an alleged HTA infraction, the defence argues that the cases that support a police right to pull over a car where the existence of both HTA purposes and criminal investigatory purposes is shown (e.g.: Brown v. Durham, Nolet) have no application. Put simply, on this argument, there could not have been a dual HTA/criminal investigatory purpose because there was no legitimate HTA basis for the stop. Mr. Rippell argued that the stop was a “ruse” and was thus based on an improper purpose. Consequently, the defence submitted that the stop violated Mr. Morris’ right to be free from arbitrary detention, and that the subsequent search must be considered unreasonable.

(Check for commentary on CanLII Connects)

2. Carter v. Canada (Attorney General), 2015 SCC 5

[1] It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.

[2] The question on this appeal is whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and security of the person (s. 7) and to equal treatment by and under the law (s. 15). This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.

(Check for commentary on CanLII Connects)

3. R v Wagar, 2015 ABCA 327

[4] Having read the Crown’s factum, portions of the trial transcript and having heard Crown counsel’s arguments, we are satisfied that the trial judge’s comments throughout the proceedings and in his reasons gave rise to doubts about the trial judge’s understanding of the law governing sexual assaults and in particular, the meaning of consent and restrictions on evidence of the complainant’s sexual activity imposed by section 276 of the Criminal Code. We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment. There were also instances where the trial judge misapprehended the evidence.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was R. c. Rondeau, 1996 CanLII 6516

Dans ce contexte, la mise en liberté provisoire ne doit pas être refusée à toute personne qui risque de commettre une infraction ou de nuire à l’administration de la justice, si remise en liberté, mais uniquement, comme l’expose le par. 515(10) C.cr., s’il y a une «probabilité marquée» qu’elle commette une infraction criminelle ou nuise à l’administration de la justice et, enfin, seulement «si cette ‘probabilité marquée’ compromet ‘la protection ou la sécurité du public» (R. c. Morales, p. 737). Comme le législateur exige que la détention soit nécessaire pour la sécurité du public, «elle n’est (donc) pas justifiée si la détention est seulement commode ou avantageuse» (R. c. Morales, p. 737). Répondant à l’objection que ce critère repose sur l’hypothèse que l’on puisse prédire la récidive, alors que la chose est impossible, le juge en chef Lamer, au nom de la cour, dans l’arrêt Morales, souligne que la prévisibilité exacte ne constitue pas une exigence constitutionnelle et qu’il suffit d’établir la probabilité de dangerosité, qu’expriment les mots «probabilité marquée» au par. 515(10) C.cr.. Le risque sérieux de récidive visé par le législateur au par. 515(10) C.cr. n’est que l’un des éléments pertinents à la solution du litige, soit de décider si la détention est nécessaire pour la protection ou la sécurité du public.

(Check for commentary on CanLII Connects)

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

Categories: Teknoids Blogs

A Handful of Open Source Assessment & Feedback Tools

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  • Rogō, a complete assessment authoring, playback and management system, developed by the eponymous project at Nottingham University, and deployed in three other institutions
  • OpenMentor, a system that analyses tutor feedback on assignments, developed at the OU, now deployed in two other institutions by the OMTetra project
  • QTIWorks, a full-featured, QTI compliant assessment and test player, developed at Edinburgh University, now deployed by the QTI-DI project
  • Uniqurate, an online, QTI compliant assessment and test authoring tool developed at Kingston University by the eponymous project, and coupled to QTIWorks

Source: Assessment & Feedback tool development lessons | Wilbert Kraan

Of most use to CALI is likely to be Rogo, written in PHP backed with MySQL and LDAP for user management.

Categories: Teknoids Blogs

Soon You Can Access Harvard’s Case Law Collection For Free

The Lawyerist - Tue, 11/10/2015 - 14:43

Harvard is renowned for an almost pathological level of copyright maximalism over the precious precious Bluebook. Rightly so, because forcing law students everywhere to buy that monstrosity nets them seven figures per year. However, it looks like they’ve decided to be a little less tight-fisted about their collection of case law, which is apparently enormous.

Home to the country’s most comprehensive collection of U.S. case law, second only to the Library of Congress, Harvard is partnering with technology startup Ravel Law to digitize its legal library — more than 200 years’ worth of cases — making it fully and freely searchable.

The digitization effort involves slicing up books and feeding them into a 12-foot-high scanner, which is a thing I didn’t know existed but now I really want. After everything is digitized, Ravel will get to work and make it all searchable and do all their cool data-mapping tricks with it, although only the searchability part of that will be free.

Ravel aims to offer up the massive store of legal information to the public but also to provide greater value to small firms with limited resources and large firms looking for a competitive edge. While Ravel’s search function will be free to use, it charges for subscriptions to its suite of analytical tools, which will soon be augmented by data from Harvard’s library.

Better still: Ravel will fling open the archives, cool tools intact, for scholars and researchers right away and make the database free for commercial entities after eight years.

Featured image: “Free comic book inscription pop art retro style” from Shutterstock.

Soon You Can Access Harvard’s Case Law Collection For Free was originally published on Lawyerist.

Categories: Teknoids Blogs

Lawyer Hires Internet Tough Guy to Silence Internet-Tough-Guy Lawyers

The Lawyerist - Tue, 11/10/2015 - 14:11

Trying to get websites to take down pages that make you look bad is inherently problematic, but it’s even harder when your approach is to go around threatening lawyers who are well-known for not backing down in the face of threats. Florida lawyer Gary Ostrow apparently wanted to put some unfortunate things behind him, like this comical-if-it-weren’t-probably-unethical press release and some mentions of his brushes with the law.

In order to try to clean up his Internet reputation, Ostrow hired an Internet tough guy named Patrick Zarrelli, who spent yesterday threatening Mark Bennett, Scott Greenfield, Brian Tannebaum, and probably others. He’s spectacularly bad at it, and he’s just making things worse for Ostrow. For example, here is the voicemail he left with Tannebaum:

Of course, Bennett, Greenfield, and Tannebaum just posted Zarrelli’s emails and voicemails — as they should — along with a healthy dose of their own posturing and now the blawgosphere smells like a high-school locker room and I can’t breathe.


Update. It turns out Ostrow is an Internet tough guy, too:

"You have no fucking idea what's coming your way, my friend. Have a nice fucking life." —Ostrow, when asked to confirm that Zarrelli was his

— Mark W. Bennett (@MarkWBennett) October 30, 2015

I have a feeling we’ll be hearing about this for a while.

2015-11-10. Apparently, according to TechDirt, Zarrelli has filed a criminal and/or a bar complaint against me:

Featured image: “Portrait of two smiling muscular men flexing biceps” from Shutterstock.

Lawyer Hires Internet Tough Guy to Silence Internet-Tough-Guy Lawyers was originally published on Lawyerist.

Categories: Teknoids Blogs

Problems With Bitcoins as Money?

slaw - Tue, 11/10/2015 - 10:17

As you know, the Canadian Senate Committee on Banking, Trade and Commerce published earlier this year a report on Bitcoin and other digital currencies. Bradley Crawford, author of the leading banking law treatise in Canada, has recently written a commentary on that report and on digital currencies generally. That comment – quite critical of the Senate’s report – will be added to his treatise later this month.

He raises one issue that seems to me particularly important to those who promote the use of digital currencies in commercial exchanges: the transfer of control of units of Bitcoin (or equivalent) does not at law discharge the legal obligation for which it is transferred. The transferee is not in the position of a holder in due course of a negotiable instrument. Thus the transferor might still be held liable on the obligation for which the transfer was made – not, probably, by the transferee directly, but by an interested third party like another creditor or a trustee in bankruptcy. (This is my formulation, not his – see below for his words.)

This may be inevitable unless (or until) bitcoin and its equivalents are recognizes as money or currency – something that Mr Crawford thinks is inappropriate for a number of reasons set out in his treatise.

Do you have clients that do transactions using Bitcoin? Does this strike you as a problem? If not, why not?

P.S. here’s an extract from Bradley Crawford’s text (with his permission) ( §4:50.30(2)(d)(iii) of the treatise, forthcoming)

The most significant [difficulty) is the fact that transfers of control over units may not be effective to transfer title to the value represented by the unit. This appears not to have occurred to the [Senate] Committee. At any event, it is not mentioned at any point in the Report. For example, in the definition of “cryptocurrency”, it is asserted that:

Transactions are recorded on a public ledger, which is shared across a peer-to-peer network, and the validity of transactions is verified through cryptographic techniques.

It is important to note that the only information recorded about a transaction transferring a bitcoin is related to the history of that particular unit. It carries, or accesses the public record of, information identifying the transactions in which it has been transferred. It neither carries nor accesses any information whatsoever about any other element of those transactions. Accordingly, the verification of their “validity” to which the definition refers is similarly limited to the pedigree of the unit(s) transferred.

More significantly, the Report fails to note an important adverse consequence of its acceptance of digital currencies as a new currency. As no decentralized, convertible digital currency now in use is legally qualified to be recognized as money, transfers do not expunge the rights of prior claimants to ownership. The transferee, even though receiving the unit in a transaction at arm’s length, in good faith and for value, has only a claim to ownership, not legal title. And that claim might not be prior in right to the claim of some prior owner wrongfully deprived of it.

If the information about the history of the unit that is contained in the public record is adequate to enable a prior claimant to trace it, and to establish their prior right, a court would be obliged to order its return to its prior owner. Now, it is unlikely that any litigation would be initiated with respect to a single unit, but a claim to trace and recover the approximately 900,000 bitcoins stolen from the Mt. Gox exchange in Tokyo is not only plausible, but conceptually feasible under Canadian law, if they can be identified.

Forms of value that trail viable legal claims behind them like comets are unfit for use as currency in any economy.

Categories: Teknoids Blogs