When the new tort of the intrusion upon seclusion first emerged in 2012 in Jones v. Tsige, many of us wondered how exactly it would be invoked in litigation. Many of us assumed reasonably that this would be an additional head of damages claimed, given the modest amount recognized by the court as reasonable for privacy breaches.
Since that time we have seen this tort employed in several cases with varying success. One of the more intriguing applications is where these small heads of damages can be advanced in the aggregate, namely in through class proceedings.
The ideal scenario for this type of situation to emerge would be a large institution, like a government or facility with significant records, to disclose en masse the personal information of members of the public. The type of information would also have to be the type of information the court considered reasonable to create the type of distress or anguish necessary, in the areas of finances, health, sexual practices, employment, or personal correspondents.
In less than two years we have seen these class actions emerge, and more recently, observed their presence in the area of medical records as well. The sheer volume of health information collected, used, and disclosed by health practitioners makes the health sector particularly vulnerable to this type of liability. Health records are particularly vulnerable to privacy breaches, and can be particularly sensitive, because they may also contain other private information such as sexual practices or personal thoughts through counselling notes.
The first medical records class action is Hopkins v. Kay, which was successful on a summary judgment motion earlier this year, where Justice Edwards stated,
 With the click of a mouse, personal health records can be accessed by those who have a legitimate interest in properly treating a patient – or they can be accessed for an improper purpose.
The second case involves a privacy breach at Rouge Valley Centenary for $412 million.
These cases have the potential to be successful on the basis of intrusion upon seclusion without reliance on other heads of damages at all, which completely transforms the risk assessment for employers and administrators. The health sector has identified this area as a significant operational issue which will require additional training, investment and review to minimize or eliminate vicarious liability as much as possible.
I explored these issues with some individuals earlier this week, and I am making the brief paper I used available here: New Tort of Intrusion Upon Seclusion and Electronic Health Records.
Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week’s summaries concern:
Civil Rights – Criminal Law – Indians, Inuit and Métis – Contracts – Practice
R. v. Pardy (T.) 2014 NLCA 37
Civil Rights – Criminal Law – Crown – Government Programs – Statutes
Summary: The accused was charged with first degree murder, using a firearm in the commission of an offence, and, being a person authorized to possess a firearm (a handgun), having possession of the firearm in an unauthorized place. He was issued a Legal Aid certificate to be represented by a lawyer from the private bar. On the eve of the commencement of the calling of evidence in his …
Nunavut Tunngavik Inc. v. Canada (Attorney General) et al. 2014 NUCA 2
Contracts – Indians, Inuit and Métis – Practice
Summary: This action was started by Nunavut Tunngavik Inc. (Tunngavik), a body created to assist in implementing a comprehensive Land Claims Agreement between the Inuit and Canada. The action alleged numerous breaches by Canada of the Agreement. The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan. See  Nunavut Cases Uned. 11 (C.J.). Canada …
One Twitter hashtag for the event was #legalhack
Top 10 Legal Hacks of the Year:
For those readers who don’t follow labour disputes in Quebec, there’s been trouble brewing over the Province’s attempts to reign in municipal pension costs via Bill 3. Because Quebec (and all other provincial) labour laws don’t allow “essential services” unions to strike (not surprisingly, because people could die), police, EMT and firefighter unions have been trying creative ways to get their point across. In the Municipality of Chateaugay (just outside of Montreal), the police force has taken to wearing cowboy outfits (photo credit here):
Not surprisingly, the Municipality protested and filed a grievance. Yesterday, the Quebec Labour Relations Board ruled that it was acceptable for the officers to wear cowboy uniforms as a pressure tactic. While, normal employees would not be permitted to violate their dress code in this way without disciplinary repercussions, essential services employees in Quebec have used these tactics in the past. Montreal police officers have even taken to wearing pink combat pants and jeans to show their “colours” during labour negotiations.
The decision on the Chateaugay Cowboys, published in French here, hinges on the rights of the officers to their freedom of expression and the Administrative Judge’s opinion that the cowboy uniforms would not cause confusion for citizens or create any safety or security issues. Perhaps even more interesting (and maybe troubling) was that the CBC reported that police union spent $25,000 of their member’s dues on those uniforms. They must be real gold stars on their chests.
What are your thoughts? A reasonable use of freedom of expression in face of an inability to strike? A waste of money? Maybe I’m old fashioned, but as a veteran of the Canadian Armed Forces, I can’t even fathom putting on a costume to pressure my leaders to do something. I hope that now that the Bill has been passed, all police officers will go back to their regular, professional uniforms.
Email disclaimers are a pointless waste of bandwidth even when lawyers use them, but at least lawyers are actually entitled to some privileges in general. Law students? Not so much.
But hey, law students are pretty terrible people as a general rule (case in point; and yes, I include my former-law-student-self in the terrible people group), so it’s no surprise that some are apparently tacking confidentiality clauses onto their emails. To protect emails discussing study groups, I guess?
As Bitter Lawyer points out, there are some obvious problems with this strategy. Left out of its analysis, however, was this, the most important question:
What sort of foundation will most effectively conceal the red mark you get when someone finally gives you the smack on the forehead you so richly deserve?
Featured image: “angry businesswoman is slapping across the businessman’s face” from Shutterstock.
Referrals from other attorneys are a key source of clients for many law firms.
There is a difference between good referrals and other attorneys trying to dump a problem client or a bad case on someone else.
The next time you are considering referring a potential client (or current client) elsewhere, make sure you are doing the right thing.Your Legal Community is Small
I practice in the Twin Cities, which is the sixteenth biggest metropolitan area in the country. That means there are a lot of people here and there are a lot of lawyers. That said, I am consistently surprised at how small the legal community feels.
Part of that is because I practice a niche within a niche. Part of that is because legal communities are generally closely held. And in case you haven’t figured this out yet, your reputation as an attorney and a person travels fast. Like it or not, your reputation is known by a lot more people than you think.
For that reason, I am always shocked to hear about a lawyer doing something that most lawyers consider bad manners or bad business. For example, opposing counsel that consistently burn bridges with the other side. Or an attorney who constantly refers lousy cases or problem clients to other attorneys. Word travels fast, and reputations are hard to shake. Especially when there is a pattern of behavior.
To be clear: I’m not saying that you can, or should, have the ability to recognize great cases in other practice areas. But every attorney can spot a potentially bad case, and they can usually see a problem client coming. You are doing more harm than good if you are referring those clients to other attorneys that you hold in high regard.
I also would refrain from the apparently prevalent custom of sending bad cases to someone you don’t like. You are not required to provide a specific referral to another attorney. You can simply say that you don’t have a referral, or refer them to the bar association. Here are a couple of clients and cases you should not refer.1. A Bad Case or a Case With Major Issues
This usually happens in one of two ways. One, a case within your expertise that you don’t want to take because of a major issue. Or two, a case that is not in your practice area, but you still know enough to realize it’s a not a great case. Under either scenario, those are probably not the type of cases you should be referring to people you know.
There have been a few times in the last year where other attorneys have tried to refer me a case that is clearly not a good case. Heck, they usually pitch it as “rock-solid” or “can’t miss” case. Attorneys don’t refer rock-solid or can’t miss cases to other attorneys unless there is a very legitimate reason. If it’s a close colleague of mine, I believe them. If they say there’s a conflict, I believe them. If they tell me “I’ve got too much going on” or “I just can’t deal with this particular case right now” that’s a big red flag. It’s probably just a bad case.
If you are a solo attorney, you know what I’m talking about. The only way I’m referring a great case to someone else is because of a conflict. That’s it. If I’m already swamped, I will put in more hours and take the case.2. The Problem Client
Here are my two (non) favorite referrals from other attorneys. One, a client looking for a free attorney to handle a case that I don’t handle (and the other attorney knows this). For example, I’ve had attorneys call me and say “I know you practice consumer law, but I’ve got a business client I’m trying to help with a lease, and I don’t handle that. They can’t afford to pay anything, but I figured I’d give you a call.”
In other words: the other attorney doesn’t do free work for their own client, but they expect me to (for a practice matter I don’t handle). Frankly, the more I write about this, the more I wonder about this other attorney.
My other (non) favorite referral is the client with an actual case, but the attorney couldn’t work with them. Those calls usually go something like “Look, they’ve got a solid case, but the client is really high maintenance and has totally unrealistic expectations. I figured maybe you would be a better fit for them.”
In other words: the other attorney wants out of the case, but they don’t want to look bad and want to send the client somewhere else. This other attorney also has such little respect for me that they think I will take any/every case that walks in my door.
It’s a pretty simple rule: if the client is not an individual you want to represent, then simply decline representation. Sending them to someone else is a bad idea in the long run. I have a very good memory about attorneys who have referred me cases. I even have an excellent memory about attorneys who tried to dump their problem clients on me.When in Doubt, Give the Referral a Heads Up
Referrals from other attorneys are a huge part of my practice and a huge source of business for many attorneys. Whenever someone calls/e-mails me with a legitimate referral, but they have lingering doubts about the case, I tell them to send the person my way.
To be fair, these are people that have consistently sent me good leads, not people that consistently try and dump their problem clients on me.
When I refer a case to someone else, but I have doubts about the case, I give the other attorney a heads up. Just a friendly “just referred you a potential client. It sounds like it could either way, but I figured you would know better than me.” In some situations, I will even follow up with them to see if the case worked out. It’s not because I’m looking for a referral fee (I don’t request or accept them), it’s because I want to make sure I’m not wasting their time by sending them bad cases.
Good lawyers want to help other lawyers by sending them good cases and good clients. Before you try and dump a problem client on another attorney, be sure to think about the long-term implications.Updates:
Featured image: “bored couple at dinner oblyed to listen to a mexican musician” from Shutterstock.
Things, as we all know, have minds of their own, typically modelled on the brains of mischievous or downright malevolent trolls. We, their users, have minds too — though at times you wouldn’t know it. And with our superior intellect, we have devised ways to compel things to do our bidding or, if they don’t want to, at least to behave a trifle more . . . usefully. (The wise reader will have spied the flaw in all of this: namely that our ways — our modifications or mods — too often depend themselves on more things. But today at least we’ll avert our superior intellects from this and pretend that there is no problem.)
The instances of these mods are too numerous to catalogue. But a few examples will make clear what I’m talking about. Take fabric, for instance. Fabric is notoriously willful, wrinkling, folding, sagging, tearing and generally coming undone no matter how much we might stomp our foot in command. Thus fabric modders. The steam iron is a well-known modder of fabric (and one that will at the least opportunity deposit a splotch of rust juice on the object being disciplined — but we agreed we weren’t going to look in that direction). Then there are those devices meant to compel fitted sheets to in fact stay fitted, only one of which is demonstrated in this video.
A lesser-known cousin was brought to my attention recently: it’s a brilliant device meant to frustrate the tendency of men’s shirts to rise of their own accord at the waistline and threaten to come untucked. The elastic suspender-like device attaches at one end to the tails of the wayward shirt and at the other end to the tops of the often-times shirking socks: bingo! two fabric mischiefs frustrated at one go. Lest you think I’m merely funning, I invite the brave to click on this link to see this mod in all its high tension glory. (Give no thought to the consequences of a structural failure, I implore you.) The eager among you may purchase these beauties from a company modestly known as Sharp & Dapper.
Not all things misbehave aggressively. Some are quite passive in their malevolence, simply failing to provide what is wanted in the moment. Here our modding must be to supply the lack and — take that! — afix it to the truculent thing. You may find a product known as Sugru to be useful in this respect. It’s a coloured putty substance that, once moulded to your specs, glues itself to almost any surface, where it then hardens into a firm silicone stiffness. No towel hook on that sullen cupboard door? That outdoor water tap handle positively Spartan in its lack of concession to comfort? Sugru might be the solution to these and a host of other withholdings by things.
Then there are those things that could try harder but . . . won’t. I’ll give you only one example here, but it’s a doozy. You’re in a parking lot and you can’t find your silver (or black) car among the myriad other silver (or black) lookalikes. Aha, you say, using that superior intelligence we mooted earlier: I’ll use my key fob to flash the lights and maybe get the horn to beep. The signal just doesn’t reach far enough. Option one is to drop the device to the (undoubtedly) concrete floor and step on it sharply. The temptation to punish recalcitrant things is very strong and only natural. May I, however, suggest option two, to wit: a modification of the lazy fob?
Hold the fob and key against your head and try again. You may be surprised to find that the weak signal is now amplified by all the water in which your superior intelligence resides, allowing it to reach two or perhaps three times the distance it did when slacking. Doubt me? It’s all spelled out and demonstrated in this great video by Professor Roger Bowley.
Canadians do not have access to justice. Access to justice is of foundational importance to Canadian society; access to justice is essential to the social and economic wellbeing of civil society. The civil justice system is too complex, too slow and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve. The system is in crisis. The reforms to date are inadequate; change of a fundamental nature is required. An overhaul of the current system is required.
These propositions, all drawn from recently published reports on access to justice, have been advanced so often and restated by so many academics, researchers and leaders of the bench and bar that they have become truisms of justice in the twenty-first century. The breadth of their scope and significance of their implications has, however, has overshadowed two collateral observations: that none of the federal, provincial or territorial governments have thus far committed the magnitude of resources necessary to adequately support the effort needed to achieve fundamental change; and, that insufficient impetus has thus far emerged from the bench and bar to compel such a commitment.
The present situation is, with the greatest respect, staggering. We have at hand a crisis on a national scale, affecting a system that costs governments billions of dollars a year to maintain, and yet we as a society are unwilling to allocate the few millions of dollars that are necessary to tackle the problem as aggressively as it requires. To be sure, there are individuals and groups engaged in justice reform across the country, however the groups are poorly funded, poorly supported and reluctant to engage in a foundation-up reimagining of the justice system, and the individuals are on the verge of burnout as they struggle to carry projects off the sides of their desks. Why are justice reform initiatives not better resourced?
There are, I suggest, three main causes of our apparent reluctance to meaningfully address access to justice and the present crisis within the system.
Firstly, lawyers are largely invulnerable to the sort of traditional capitalist forces that impel change. Although the effects of the 2008 economic downturn were felt sharply by the corporate lawyers of Bay and Howe Streets, most civil litigators barely noticed the recession. Those of us who charge by the hour continued to charge by the hour and experienced none of the competitive market conditions that would have encouraged a reduction in our rates or a reevaluation of our billing models; indeed the legal fees surveys published by Canadian Lawyer show that our rates have continued to increase, often at a pace beyond that of inflation. With no shortage of clients willing to pay our rates, what possible motivation could there be apart from altruism to adopt the alternative service structures known to promote access to justice, such as flat-rate and limited-scope retainers, or work on a barter basis? Behaviour, after all, follows incentives.
Of course it deserves to be mentioned that lawyers are not actually engaged in a traditional capitalist market: we enjoy a statutory monopoly over most legal services and our potential competition is artificially suppressed. This arrangement is, in essence, a social compact in which the quid pro quo for exclusive rights is the provision of reasonably sufficient services such that society’s reasonable legal needs are reasonably met. I suspect that the consequence of failing to hold up our end of the bargain will be deregulation and the introduction of much more affordable competitors, whether we greet such measures with grace and magnanimity or not.
Secondly, although most judges and lawyers would agree that the efficiencies of the civil justice system have deteriorated over the past ten years as the number of cases and litigants without counsel have skyrocketed while budgets and the rate of new judicial appointments have stagnated or declined, few would likely say that the system has become intolerable. Our judges are at or reaching their maximum capacity; the continued decline of the system is not going to have much more of an impact on their workload despite its impact on their job satisfaction. Most lawyers are continuing to make a very good living and are turning away new clients. Apart from the aggravation of increasing delays in the time required to take a matter to hearing or trial, we are little inconvenienced by the deterioration of the system.
Although the decline of the justice system is causing some degree of discomfort for the two critical groups with the greatest power to promote change, it has not yet become so uncomfortable that the Bastille is in danger of being stormed. (On top of this, the senior lawyers who are the most influential among the bar are doing quite well under the current system, are least inconvenienced by the status quo and are, as a result, are singularly without motivation to pursue change.) As so often happens, the people who bear the brunt of the problem – court staff, legal aid agencies, front-line advocates and justice-serving agencies, never mind the actual users of the system – are the least empowered to effect change.
However, it seems to me that change is about to be thrust upon us whether we rise to meet the challenge or choose to sit on our hands. The flood of litigants without counsel shows no sign of abatement and the research tells us that such litigants are more likely to adopt unreasonable positions and as a consequence are less likely to resolve a dispute other than by trial. These litigants have difficulty with the rules of court, the rules of evidence, the legislation governing their dispute and court processes; they need longer trials and are more likely to require multiple adjournments to properly present their case. If the system is choked now, it is going to become absolutely impassable if current trends persist unaltered, much to our own inconvenience and that of our clients.
Thirdly and perhaps most importantly, although the future state of the justice system is eminently foreseeable, the precise date when the crisis will reach a point of climax and become intolerable remains indeterminate. It seems to me a function of human nature that whenever a grave problem impends and we have the choice of either
we choose inaction over action. We are most certainly taking the second route with respect to the justice system, just as we are with climate change; we are trading our present, tolerable discomfort against the exponentially worse discomfort we are almost certainly going to suffer at an unknown date in the future.
Regardless of why so few resources have been allocated to the twin tasks of reform and reinvention, or of why the status quo carries so much inertia among those with the power to promote change, we are headed toward a watershed moment. We can continue to rearrange the deck chairs and proceed as if tinkering around the edges will resolve the crisis, or we can take the ship into drydock and take it back to the keel. The fact of the matter is that there is no shortage of good ideas and we likely have the answers necessary to address the access to justice crisis, or at least enough of them to make the critical difference. What we need are the resources and the will required to pilot, evaluate and implement them.
To get back to drydock, two things are necessary: the unflinching commitment toward fundamental change of the bench and bar, expressed through the chief judges and justices and the executives of the law societies and bar associations, and the commitment of government, expressed through a far more appropriate allocation of resources and funding. Without both, I fear that the momentum toward change encouraged by the work of the Action Committee on Access to Civil and Family Justice and the CBA’s Access to Justice Committee will be lost and the status quo will prevail until change is rudely forced upon us.
Between October 20th and 24th, as it does every Autumn, UNCITRAL’s Working group III on Online dispute resolution met to try and finally draft procedural rules for ODR providers. Unlike previous sessions, this year’s was rumoured to be a “make it or break it” meeting. This could be gleaned from the restatement of the directives given to participants in July of 2012 by UNCITRAL:
(a) the Working Group should consider and report back at a future session of the Commission on how the draft rules would respond to the need of developing countries and those facing post-conflict situations, in particular with regard to the need for an arbitration phase to be part of the process;
(b) the Working Group should continue to include in its deliberations the effects of online dispute resolution on consumer protection in developing and developed countries and countries in post-conflict situations, including where the consumer was the respondent party in an online dispute resolution process; and
(c) the Working Group should continue to explore a range of means of ensuring that online dispute resolution outcomes were effectively implemented, including arbitration and possible alternatives to arbitration.
It could also be understood from the Chair’s indications that there was a matter of urgency to complete the rules. As we’ve previously noted, this matter of urgency is due, among other things, to the fact that the European Union will soon have its own rules and that many jurisdictions around the world have decided to follow suit. Therefore, if UNCITRAL’s WGIII does not agree on draft rules almost immediately, its work may become unnecessary.
Unfortunately, notwithstanding the aforementioned urgency, expectations regarding the importance of this meeting were unfounded or, at least, were not met. Work seems to be at a standstill and even previously agreed-upon concessions are now being re-examined. Proof-and-point, the “two-track” system that had been proposed following great compromise by all member states is no longer seen as a viable option. To refresh readers’ memory, since some delegations insist that ODR rules must allow for mandatory arbitration for consumers should a mediated settlement be unreachable, while others oppose the very idea since it goes against their own laws, it was agreed that consumers would be offered a “two-track” system where individuals would follow the track that has been chosen by their countries.
Although this two-track system seemed like a welcomed compromise, it’s becoming more and more apparent that it suffers from certain flaws that may make its implementation impossible. First, how do we decide which track an individual has to follow? Country of residence? Citizenship? Place from where a purchase is made? This problem is not insurmountable, but since the validity of an arbitrated settlement depends on this very important categorization, it is an important one. More problematic, however, is establishing who will be responsible for drafting and maintaining the list of countries where track one (binding arbitration clauses) isn’t allowed. Obviously, ODR providers don’t have the resources to put such a list together, and, even if they did, they wouldn’t want to deal with the liability issues that could stem from an incorrect classification.
That being said, since the two-track system seems to be the only way to include all member countries in the discussion, maybe there is a way to get around the two aforementioned problems: just invert the tracks.
Under the latest version of the draft rules, the default track is “track 1”, i.e. the mandatory arbitration track. Consumers would therefore be offered the right to opt-out of said track if they are subject to the laws of States where mandatory arbitration clauses in consumer contracts are void. As mentioned, this implies creating a complex list of these countries, and keeping it up to date. Therefore, instead of using an opt-out mechanism, why not favour an opt-in solution? By making the default track the discretionary arbitration track, the list becomes much shorter and liability concerns are no longer valid since forgetting to put a country on the list will have no legal ramifications.
After all, there are, to our knowledge, only two types of countries: those that allow arbitration clauses in consumer contracts, and those that don’t. None of the member countries has come out and stated that its laws make it obligatory to include such clauses in consumer contracts. Therefore, in inverting the tracks, the only risk is that an online merchant having its place of business in a country where arbitration clauses are legal cannot impose arbitration on consumers who would rather go to the courts (something that is unlikely considering the values in play). Furthermore, if the discussions held in October are of any indication, there are currently only three countries (the USA, Columbia and Honduras) that insist on allowing mandatory arbitration clauses to be inserted into consumer contracts. A list of three countries seems much easier to handle than a list of a few dozen countries…
Of course, this doesn’t settle whether citizenship or place of residence should be the criteria to establish if a consumer is submitted to a given track, but maybe this question could be settled by stealing a page from the Tribunal de grande instance de Paris’ playbook. In LICRA v. Yahoo!, the Court basically stated that French laws apply when an IP address belonging to a French Internet service provider is used by a consumer when consulting a website. Although this solution isn’t perfect, it has the advantage of being simple and easy to manage for ODR providers.
Work for WGIII is set to resume on February 9th in New York. With more and more member states threatening to stop taking part in the stalled discussions, whe can only hope that a compromise is finally reached, otherwise, we fear that we could very well see the working group’s work come to a halt. Of course, those are just rumours…
At the LawLytics blog, The Slippery Slope, Dan Jaffe wrote a really excellent, detailed analysis of “innovative” business models built around repackaging lawyers and legal services like commodities. He uses Avvo Advisor as an example in his post, but Jaffe’s analysis applies just as well to many of the legal startups trying to innovate in the “legal space.”
Putting lawyer advertising next to advertising for DIY legal kits is a bad idea for the public and for lawyers because of the subconscious association. To the layman, it appears that lawyers and DIY solutions are competing. It appears that they are different paths to the same solution.
You know what, though? Just read the whole article. It’s long, which is why I only just now read it, but it is worth a read.
From Ars Technica:
The so-called trust marks are sold by almost a dozen companies, including Symantec, McAfee, Trust-Guard, and Qualys. In exchange for fees ranging from less than $100 to well over $2,000 per year, the services provide periodic security scans of the site. If it passes, it receives the Internet equivalent of a Good Housekeeping Seal of approval that’s prominently displayed on the homepage.
Unfortunately, that seal is virtually meaningless, according to a recent scientific paper.
A recently published academic paper discovered an almost universal lack of thoroughness among the 10 seal providers studied. For one thing, the scientists carried out two experiments showing that the scanners failed to detect a host of serious vulnerabilities. In one of the experiments, even the best-performing service missed more than half of the vulnerabilities known to afflict a site. In another, they uncovered flaws in certified sites that would take a typical criminal hacker less than one day to maliciously discover.
That’s not all. The seal itself can make the site more vulnerable.
Most strikingly, the researchers developed attacks that are enabled by a site’s use of security seals, a shortcoming that ironically makes sites that use some seals more vulnerable than if they didn’t use the service.
So not only should you ignore security seals, but you might want to hesitate before doing business with websites that use them.
Featured image: “Secure shopping icon” from Shutterstock.
In Rodgers v. CEVA, although the employee worked with the employer for less than three years, the Ontario Superior Court of Justice found that the terminated employee should be awarded damages for wrongful dismissal totalling $345,985 representing 14 months’ reasonable notice.Facts of the case
On September 6, 2009, while employed with Sameday Worldwide, Bruce Rodgers was recruited by CEVA Freight Canada Corp. as Country Manager for Canada, with an annual salary of $276,000 and a $40,000 signing bonus. He was responsible for over 500 employees and revenues in excess of $140 million annually.
The employment agreement included other benefits such as a car allowance, RRSP contributions, bonuses, vacation, health benefits, insurance, cellphone and membership at a golf club which included a food and beverage allowance.
The agreement also required Rodgers, as a senior manager, to purchase shares in CEVA Investments. Rodgers purchased $102,330.85 worth of shares.
With respect to termination, the employment agreement stated:
Your employment may also be terminated by our providing you notice, pay in lieu of notice, or a combination of both, at our option, based on your length of service and applicable legal requirements.
On June 28, 2012, Rodgers was terminated. He was given two weeks’ salary in lieu of notice totaling $11,115.44, severance pay in the amount of $5,307.72 and outstanding vacation pay of $20,324.92. His benefit coverage was terminated two weeks later.
Rodgers immediately started a job search but didn’t find alternate employment for close to a year. On May 6, 2013, he began working as Country Manager with Vandegrift Canada, a smaller transportation and shipping company.
Rodgers also commenced an action for wrongful dismissal against CEVA and sought damages. He submitted that he was induced by CEVA to leave secure and long-term employment with his previous employer, Sameday Worldwide. He was earning an annual salary of $189,000 plus a bonus. In 2009, when he was hired by CEVA, his bonus was $126,000. Rodgers had been employed by Sameday or one of its affiliated companies since 1998.
Rodgers claimed CEVA terminated him without cause and virtually without notice or pay in lieu of notice in an economically depressed time in the freight forwarding and logistics business. He submitted that there was and is a limited market for jobs similar to his position with CEVA.
Rodgers submitted that the period of reasonable notice for termination of his employment with CEVA was between 18 and 24 months and his damages for wrongful dismissal should be calculated on this basis less what he had earned as a result of his mitigation efforts.
CEVA argued that the most important factor in determining the appropriate period of notice was Rodgers’s length of service, which was very short. Further, the employment agreement stated that Rodgers would be entitled to a period of notice that was based on his length of service and applicable legal requirements. Also, CEVA denied that Rodgers was induced to take the position.
After the termination, Rodgers contacted CEVA about his investment. The company responded that everything was fine but that there was no process in place that would enable him to exit the plan by selling stocks. No one said anything about CEVA Investments being in a precarious financial situation, but Rodgers subsequently learned that his shares were worthless.Decision
The well-known Bardal factors guide courts in determining reasonable notice:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. (Bardal v. Globe & Mail Ltd. ( O.W.N. 253, (1960), 24 D.L.R. (2d) 140 (Ont. H.C.)
Thus, length of service is only one factor to consider, and it is not given priority to determine the notice period.
In the Court’s view, the agreement advised Rodgers that his employment could be terminated based on notice determined in accordance with all applicable legal principles. If CEVA intended that length of service be accorded more weight than any other factor, this should have been made clear to Rodgers. There is no evidence that CEVA did so.
The Supreme Court of Canada has held that the Bardal factors are not exhaustive. In Wallace v United Grain Growers Ltd., 1997 CanLII 332, the Court stated that one additional factor is whether the dismissed employee had been induced to leave previous secure employment. The Court held that this is a factor which justifies an award of damages at the high end of the scale.
Rodgers stated that CEVA induced him into leaving his long-term employment with Sameday, and indeed the evidence indicates that Rodgers was approached by CEVA to become its Canadian manager. The financial package and signing bonus were attractive, but when Rodgers declined the initial offer, an improved offer was promptly presented. Rodgers also showed no reluctance to leave Sameday. While this showed that there was some degree of inducement to encourage Rogers to leave his secure employment, the inducement did not achieve the level of that in Wallace where specific assurance of long-term job security was given.
Determining reasonable notice
The critical factors in this case included:
Given the evidence and the above factors, the court concluded that the parties did not intend that the employment relationship would only last for three years, or the termination would lead to Rodgers receiving only two weeks of notice. To that end, an appropriate period of notice was established to be 14 months.
When calculating the damages (monthly remuneration over 14 months, benefits, bonuses, retirement contributions, and other perk, and deducting pay in lieu of notice and severance pay already received among other amounts), the total came to $345,985.What can we learn from this case?
Although each case must be individually examined when determining reasonable notice period, this case shows us that even short-term employees can be awarded a significant amount of money in reasonable notice for wrongful dismissal due to Bardal factors, including the employee’s age, his high level of responsibility, and the difficulty in finding a replacement position.
Employers sometimes induce employees from other organizations to join their workplace with promises of greater compensation, promotions and job security. In a competitive job market, employers will often go to great lengths to convince a person to leave his/her existing employment and join their team. Thus, the extent to which an employee has been induced to leave a secure position is a factor which may be considered when the court is awarding a reasonable notice period. The kind of enticing conduct which gets the employer into hot water isn’t necessarily all that extreme. A typical situation might involve the use of a head-hunter who identifies an attractive candidate and then pursues that candidate. That effort might involve repeated overtures, the presentation of increasingly sweet offers such as signing bonuses, holding out the prospect of future promotions and salary increases and long-term job security, etc.
This case serves as a reminder that inducement from a secure position of employment can be a Bardal factor that will contribute to a long notice period award. An employer’s efforts to convince someone to leave secure employment to join its organization may commit that employer to more than it had ever intended on termination.
Be cautious when recruiting and hiring employees, even where job security is not explicitly promised, or even discussed, what you say and do with a possible hire can be viewed by the court as an implicit promise of job security. In this case, the Court viewed the “improved attractive financial package” v. the original proposition refused by Rodgers as evidence of some inducement. Another element demonstrating that Rodgers was “induced” to join CEVA, and deserved a longer notice period, is that Rodgers was forced to make an investment in the company, giving him the impression that he could expect above-average job security.
According to Robert Smithson, Smithson Employment Law Corporation,
The simple way for employers to avoid this top-up of damages is to be assiduous about the use of employment contracts. A lawful, and binding, employment agreement containing a not-for-cause severance formula effectively serves as a “get out of jail free” card for the employer in these instances.
By superseding the common law entitlement to damages in lieu of reasonable working notice, the contractual severance clause protects the employer from liability in these enticement or inducement situations. It is a simple step which should be utilized in relation to all new hires and particularly those when the employer has gone beyond the normal measures to convince the individual to accept an employment offer.
Even better, the employment contract should state that the individual was securely employed at the time of the offer, knew the impact and associated risks of accepting the employer’s offer (and leaving his/her existing employment), and did so knowingly and willingly.
This is just another instance in which giving some forethought to the proper documentation of the employment relationship can save the employer from substantial damages. If your business is not already using employment agreements, now is the time to start.
Written with the assistance of Christina Catenacci
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
by Wendy Oughtred © 2014 Canada Law Book. Reprinted with permission.
Excerpt from: Chapter 4: Business Structures [Download the full chapter in PDF]
This chapter is about business styles. In a traditional sense, there are three to choose from: sole proprietorship, partnership or incorporation. For the purpose of this book, I have added the home office, associate practice and the purchase of a law practice as alternative choices. In any of these scenarios, the issue of incorporation is a viable consideration, but it will be dealt with separately in the next chapter.
As a sole proprietor, you are working strictly on your own, be it from an office in your home or in your own commercial office space. There are certain benefits to this style. You can operate your business under your full name, with “Barrister & Solicitor” underneath and avoid having to register a business name. You will have complete control over your expenses, your workload, your trust account and your revenue. There will be no need to consult others if you choose to expand your business or you choose to work a reduced work week and you have the freedom to work out of your home to keep your overhead to a minimum. Most importantly, you will not be incurring potential liability as a result of anyone else’s negligence or malpractice.
Sole proprietors have the option of renting space in what is referred to as commercial chambers. There, the lawyer is essentially sharing space, reception, some operating costs and, often, secretarial services with other lawyers or other business professionals but is not required to enter into an association agreement. In this situation, the possibility for incurring joint liability with other practitioners is virtually non-existent. If this sort of arrangement meets your needs, it may be a very economical approach. Beware of hidden costs that may be imposed on you as a tenant at the whim of the landlord or owner. Ensure that your lease agreement specifies that there will be no additional costs on your tenancy (known as a gross lease). Lawyers who are not in partnership may not share trust accounts.
Negative Aspects of Sole Proprietorship
The negative aspects of sole proprietorship should be considered carefully. For many people, the isolation factor is extremely prohibitive. Many sole practitioners miss the ability to bounce ideas off their colleagues and obtain quick advice from other lawyers. There are no cross-referrals from office mates, and there is no sharing of advertisement costs, office equipment, letterhead, office supplies and other overhead expenses. Significantly, there is no one else on site to babysit your practice while you are on holidays. Practising alone is clearly not for everyone. One colleague who started out on his own right after the bar admission course tells me he felt like the Maytag repairman during his first three months of business. (The significance of that comment will only have meaning to those of us old enough to remember the Maytag commercial about the lonely repairman who never got called for service because of the alleged indestructibility of the Maytag washing machines.)
However, on the brighter side, the Internet has opened many new avenues of communication for sole practitioners. For example, many criminal defence lawyers who are members of the Criminal Lawyers Association find the CLA list service (list serv) to be a valuable resource. The list serv is an Internet-based private chat line for defence counsel. The flow of information relates to many diverse topics such as local legal practice, judges, crowns, trial strategy and Legal Aid issues, along with the dissemination of important information for counsel who practice criminal law. If you have a question, posting it to the list serv often results in a plethora of advice from senior counsel. It is sometimes like a cyber replication of the sharing of war stories in the lawyers’ robing rooms at court.
There are similar forms of online communication among members of family, civil and immigration law, to name but a few.
Home offices are increasing in popularity, largely due to current economic conditions, the ability of some lawyers to construct a cyber practice and the increased price of doing business. The costs of running a law practice, rising insurance fees and cutbacks to the legal aid plans have made it more difficult than ever to remain profitable, particularly if you are balancing child care responsibilities with operating a business. Also, lawyers are discovering that a home office may be particularly well suited to certain types of practices. One example is wills and estates. Meeting in the comfort of a lawyer’s home in a nice residential setting may be preferable to clients when they are dealing with such sensitive subjects as estate planning. Or, you could even offer to meet with clients in the privacy of their own home or office and use this aspect of your service as a marketing tool.
With a home office, even if you need to use a boardroom facility on occasion, it can be rented on a daily or even hourly basis. Reception services as well as secretarial and fax can also be rented on a pay-per-use basis. There is no reason why you can’t reduce your overhead significantly with creative structuring of your business.
Negative Aspects of a Home Office
On the other hand, a home office may not be practical for certain areas of law and, whether we like it or not, some clients will never retain you if you do not practise from a high-powered office in some large downtown highrise. With a home office, you can never escape to the office or from the office; there are always potential problems with client confidentiality in the use of the phone, computer and fax, and you need a lot of self-discipline to regulate your hours of work.Home office practitioners must be cognizant of by-law provisions, which may affect the proposed office site. Most cities have enacted by-laws restricting or prescribing the operation of a business in residential areas. Again, from a practical point of view, in some jurisdictions this by-law is not enforced unless the neighbours complain. It is best to consult with your municipality before you set up shop. There are often specific issues regarding signage, parking and employees, which may complicate matters.
If you decide to operate from your home, you must remain cognizant of your obligations under the Rules of Professional Conduct and The Law Society Act. Your office must be structured so as to preserve client privacy, property and confidentiality. Some renovation work may be needed. There must be sufficient space to allow storage of confidential files and financial records. It will be necessary to restrict access to your office and certainly to control access to your computer, your files and any electronic client information. If family members are allowed access to the home office computer, it may be necessary to use password protection on your work files, segregation of client files or encryption of electronic files. Make all of the necessary inquiries and adjustments if you are planning to choose this route.
If your website content does not engage and convert, then your website is a waste of time and money — even if you have a great website design. To ensure your website copy makes a positive impact on your audience, put the following best practices to use.Format Your Content for Easy Scanning
According to the Nielsen Norman Group — a leading user experience consulting group — 79% of people do not actually read content online. Instead, they scan and pick up words and phrases as they go. Accordingly, Nielsen Norman suggests formatting your content to make it as easy as possible for visitors to scan your site, while also conveying the information you believe is most valuable. Some of the best ways to format for scannability include:
Optimizing your content for search engines is important, but you need make smart choices when it comes to how you optimize your site. Google no longer rewards repetitive use of overly optimized phrases (e.g., Chicago Personal Injury Lawyer), and people don’t like to read it, either.
You can succeed, however, if you focus on your audience. When you write, write to your prospective clients, not search engines. Craft each page around a single idea or concept. If you write thoroughly and smartly about that topic, the keywords will flow naturally and the search engines will follow.Think about Your Mobile Audience
According to comScore’s 2014 U.S. Mobile App Report, mobile users now account for 60% of all online traffic. This means you need to put mobile users’ needs to work when writing your content. Keep two things in mind:
I cannot emphasize this enough. When you write your website copy, address your prospective clients’ concerns. If you answer their most pressing questions, your website will convert those prospects into clients.Tell Your Readers What to Do Next
One item that all great law firm websites have in common is a clear call to action — telling the reader what his or her next step is. Do not leave it up to your readers to decide what they should do once they land on your website. Explicitly state what you want them to do, and then make it easy for them to do it.Two More Content Best Practices for Lawyers
While the above best practices apply to all websites, here are two recommendations geared specifically to lawyers seeking to write their own website content:
Put these best practices to work when writing (or rewriting) your website content, and you can create better website copy that engages your audience and encourages prospective clients to act. Above all, keep in mind the one central theme running through each of these practices: write as clearly as possible for your audience. Your site will be better for it.
Featured image: “illustration concept of programmer or coder workflow for website coding and html programming of web application.” from Shutterstock.
You can check the grade level of your content through the Spelling & Grammar feature of your preferred word processing program. ↩
Are you a reluctant delegator?
On a scale of one to ten, one being you have never delegated a thing in your life, and ten being you are a star delegator, how would you rate yourself?
This article is for everyone who rates at a six or under. And if you are in that enviable category of seven or higher please read on as this article will celebrate your accomplishments.
I am not going to waste any ink on making the case for delegation. Dan Pinnington has already handled that ably in his May 2014 article for Slaw. In addition to Dan’s points I will simply add that there is no better way for a lawyer to hone leadership abilities than through delegation. If you want better law firm leaders, than get more of your legal team polishing their delegation skills.
Delegation is where personal leadership skills are put to the test. Becoming an effective delegator gives you the opportunity to do the personal development work that won’t just make you a better delegator, but a better lawyer, a better mentor, and a better leader.
Here are five leadership attributes that are honed when you learn to delegate effectively:
You aren’t born with these attributes, they don’t just happen. They come from focus, effort, and practice. And delegation is the big old gymnasium where you get to work on them.
The first step is to examine what is currently getting in your way. Here are some of the common roadblocks to delegation, recognize any?
What these all have in common is that they are thinking traps. As I coach I will tell you that the key to making positive change is in starting with investigating your thoughts:
Thought: It will take too much time.
Rebuttal: Delegation does take time but in the not so long run it creates capacity in a legal practice and allows you to do the more interesting and challenging work.
Thought: They won’t do it as well as I will.
Rebuttal: Not everything requires the ability of someone at my year of call. I will review it and ensure that it is done well.
Thought: It’s my responsibility.
Rebuttal: Yes, to see that the client doesn’t pay more than need be for the work. And to be responsible for helping lawyers in my office grow and develop.
Thought: I am embarrassed about the state of the file.
Rebuttal: Oh well, it’s not the end of the world. I am not perfect and am not going to pretend to be.
Remember not to believe everything you think! To start delegating pay attention to your thoughts. How are they blocking you? Investigate them and shift your thinking to make it possible for you to delegate.
There is one additional common obstacle which you might run into:
In many cases this is a fact, plain and simple. If this is your challenge than the starting point is to introduce some regular planning sessions into your practice as you will read below.
To improve at delegation follow this simple checklist:
Plan. Take a few minutes daily to see what work is coming up in the week and month ahead and decide what can be delegated.
Prioritize. Make delegation the first priority each morning.
Communicate: Meet in-person (if possible) with the delegatee. Walk them through the assignment. Provide the larger context.
Check: Check on the delgatee’s workload. If they appear hesitant and use words such as “try” or “I think I can” seek out more information. This will help surface any unspoken issues and help you strategize with them on how they can ensure they meet the timeline.
Clarify: Ask the delegatee to repeat back what you have told them. Explain this is not to test them but to ensure you haven’t left out something important. If the person seems unsure then you can either have them email you with the instructions in writing, or you can email them.
Schedule: Schedule a check-in with the delegatee. This is a chance for them to ask questions and share drafts with you at the early stage.
Clear Timelines: Provide clear timelines and explain them. If plans change and more time presents itself, let them know.
Follow Up: Follow-up with the delegatee before the assignment is due to check on progress.
Feedback: The last step in the delegation process is to provide feedback about what was good about the work they did, what changes you made to the document and why, and what happened next with the project.
Give thanks: Include a thank you for the delegatee’s efforts and contributions at the end of the assignment. It will go a long way.
And by the way, things will at times go sideways. You will train up a great junior and they will leave the firm. You will get something back late and in bad shape. The key is to keep your eye on the big picture. Have a word with yourself. Don’t let yourself be derailed by a setback. Remember your goals and why they are important. Persevere. When you are a good delegator you will find that juniors like to work with you and will be available to help when you need them.
My thanks to Lauren Cook, a lawyer with Lawson Lundell LLP, and my co-presenter on the upcoming December 9 CLETV presentation “Overcoming the Delegation Dilemma: Tips and Tactics for the Reluctant Delegator”. Lauren took time out her day to share with me so much of what she has learned in her journey from reluctant to adept delegator.
The journal’s Website is at: www.wiselawlibrary.org/LIR/
The editor in chief of the journal is Susan Nevelow Mart of the University of Colorado.
The journal is published by William S. Hein and Co.
Here are descriptions of the editorial and advisory boards, from the call:
The Editorial Board: Editor-in-Chief: Susan Nevelow Mart, and Editors Paul Callister, Dennis Kim-Prieto, Lee Peoples, Shawn Nevers, Vickie Szymczak, Erika Wayne, and Ron Wheeler.
The Advisory Board: Advisor-in-Chief: Barbara Bintliff, and Advisors Andrea Hamilton, Coral Henning, Diane Rodriguez, and Kathy Skinner.
Here are excerpts from the call:
William S. Hein & Co., Inc. and Susan Nevelow Mart are pleased to announce the launch of the Legal Information Review, a new journal at the intersection of law librarianship and legal information. The journal will be published once a year.
The Legal Information Review encourages submissions of applied or theoretical work on the intersection of law librarianship and legal information, including:
Legal Information Review encourages manuscripts with links to author-produced videos, PowerPoints, or other media. Articles will be available in both online and print versions. The first volume is planned for December 2015. […]
For more details, please see the complete call.
Read all Dockett’s jury-duty tweets at Talking Points Memo.
As Julie Macfarlane noted here last week, it is imperative that those in the legal profession seeking to address issues in access to justice bring a variety of perspectives into the tent, including most importantly, the public whose needs are being addressed.
One of the highlights for me at last week’s Pitblado Lectures was hearing from a number of panelists who are not lawyers in response to the various access to justice-themed presentations delivered by an assortment of judges, academics and lawyers. These panelists’ views were insightful and refreshing and provided a much needed “reality check.”
Dr. Jane Ursel made a number of important points at the end of the first day’s schedule. Dr. Ursel, a professor of sociology and domestic violence researcher, emphasized the importance of asking whether efforts to increase access to justice are based on reliable evidence so as ensure that it is the problem and not the symptom that is being addressed.
She went on to comment that the administration of justice is an important component of access to justice. The administration of justice, she said, is like housework – when it works, it’s invisible; when it doesn’t, everyone notices. She pointed to the enormous public costs associated with a lack of access to justice and suggested more efforts be made to calculate those costs and use that information as a tool to convince governments to increase their investments in access to justice as a cost-avoidance strategy.
Dr. Ursel asked why the legal market couldn’t change in the same ways that the medical system has changed. Access to healthcare has increased through a shift to primary care access points where individuals may receive care from a nurse practitioner, pharmacist, physiotherapist or a physician. Why, she asked, can’t legal services also be provided through an integrated and timely multi-disciplinary service delivery model?
Drew Perry, a retired Manitoba government bureaucrat and current Complaints Review Commissioner for the Law Society of Manitoba, commented on the need for lawyers to get creative and think sideways in addressing issues of access to justice. He noted that change has been defined as “relentless pressure applied continuously” and suggested that access to justice needs a champion to move the agenda forward toward meaningful change.
Neil Cohen, Executive Director of the Community Unemployed Help Centre and Marston Grindey, a Law Society of Manitoba Lay Bencher and restorative justice advocate rounded out the reality check panels with their suggestions on what is needed from the perspective of those with boots on the ground.
As Julie Macfarlane noted, it is essential that we, the legal profession insiders, get over our:
“…feeling that only certain people can “speak” for the A2J Sector, and anyone who steps forward from the lower ranks – a court services foot solider, a law student with a great idea, a “non-lawyer” (argh!) from a social agency, or, most ghastly of all, a member of the public – is speaking “out of turn”.”
I wholly agree that these are the voices that we must listen to and learn from. As was very competently illustrated by these layperson panel members, the legal profession has much to learn from those outside our profession who have observed and often, lived the challenges of seeking access to justice.
“Office Productivity Software in the Cloud” was originally published in the October 2014 edition of the Oregon State Bar Bulletin. It is republished here with permission.The future may be arriving, but it still presents a complex web of choices.
The term “cloud computing” is generally used to describe a system of managing information that is not dependent upon any one computing device. An easy-to-understand definition of cloud computing (or Software as a Service, “SaaS”) is software that you access online via a web browser (like Internet Explorer or Chrome) rather than installing it directly onto your computer. You are probably already using some form of cloud computing on a daily basis; any web-based email service is considered cloud computing, and online legal research tools like Westlaw and LexisNexis are really the original SaaS software delivering legal research via the web.
Taking your practice to the next “cloud” level, however, is not a decision most practitioners undertake lightly, and it demands thoughtful consideration of the practical, financial, technological, contractual and ethical issues. In the sidebars accompanying this article, I’ve described some of the ethical considerations involved in cloud computing, and I offer a few recommendations for choosing and contracting with cloud-based file storage providers. My advice, however, is just the starting point: I strongly encourage attorneys to dig deeper, research further, consult with their colleagues and satisfy themselves that cloud computing makes sense — from all angles — for their practice. The future may be arriving, but it still presents a complex web of choices.
For those offices that are thinking of switching to word processing in the cloud, deciding whether to use Microsoft Office 365 or Google Apps can be a mind-boggling decision. The old adage of “you get what you pay for” is something that most lawyers understand, and it applies when comparing cloud productivity software. Microsoft Office has always been the “gold standard,” but it faces strong competition in the cloud from Google, with Google Drive and Google Apps for Business (as well as on the desktop with open-source office suites such as Apache OpenOffice, or LibreOffice, developed by The Document Foundation). There are, however, many reasons why one program may suit your office better than the other.Google Apps
Google Apps for Business is Google’s cloud office system introduced in about 2008. The first incarnations of Google Apps were rudimentary and rugged, mainly a system for handling email, calendaring and drafting basic documents. Today, Google Apps for Business offers a number of different features to compete with Microsoft Office.The Basic Features
Each Google Apps for Business account comes with a registered domain name (example: www.yourdomainname.com) for your business. In addition to the domain, Google Apps is a cloud-based conglomerate of programs to boost productivity. The heart of Google Apps revolves around Google’s Gmail program. Gmail features a hefty email management system that takes advantage of Google’s search functions and offers strong spam filtering controls.
Google expanded its Apps into its present form with storage, document creation, spreadsheets and presentations. Drive is the storage component of Google Apps for Business. Drive lets you back up documents, pictures and other files for use and sharing. Drive is also Google’s answer to Microsoft Office with Docs, Sheets and Slides.
Docs is a browser-based fully functional word processor. Docs has many of the same features as Microsoft Word, including styles, tables and other formatting. Google Sheets helps you track and analyze data, similar to Excel. Slides completes the Drive ensemble, giving users the ability to create slide show presentations like PowerPoint.Cost and Benefits
Perhaps the greatest reason to consider Google Apps for Business is the affordable cost. There are two different pricing structures for Apps for Business. Basic users will pay $5 per month per user, or $50 per year. If your business wants or needs additional security and electronic discovery features, Google Apps for Business with Vault will help meet those needs. Vault expands security protocols and boosts data retrieval and storage needs. Vault adds $5 per month to the cost of each account, bringing the total monthly cost to $10 per user per month. Google allows you to add more Drive space beginning at $4 per user — base accounts come with 30 GB of Drive and Gmail storage. Visit www.google.com/enterprise/apps/business/pricing.html for a full list of Google Apps features and a comparison of pricing options.
In addition to the low cost, being able to work from anywhere at any time is a key benefit. Cloud computing means that you can access system functions and applications from anywhere you have Internet access. You’re no longer limited to your office location for information.
Additionally, if you’re using a mobile device, Google’s suite of programs is available for most mobile operating systems. Of course, the Google Apps work best with Android, including seamless synchronization, but Windows and iOS users can also use the programs.Google Apps for Specific Law Office Needs
Collaboration. True, real-time collaboration sets Google Apps apart from other cloud solutions. Users can share and edit documents, spreadsheets or presentations at the same time. When multiple users edit a document simultaneously, each user’s cursor will change color. You’ll see the other user’s color when he or she adds comments or edits the document.
Track Changes. Some users lament that Google Docs doesn’t have the “track changes” capabilities of Microsoft Word. That’s not actually true, because a simple click of ctrl + shift + alt + g enables Google Docs’ revision history. Then, when someone revises the document, you’ll see a highlight bar on the right-hand side and all of the edits in multicolor splendor. Google Docs will continue to track the revisions for the life of the document.Apps Marketplace
Google Apps is more than just Docs, Slides and Sheets; there’s also a fully integrated suite of applications available in the Google Apps Marketplace. The Marketplace has a number of different applications to expand the power of Google Drive, Docs, Sheets and Slides. Each app installs into the back end of your Google Apps domain. The Google Apps administrator can turn on or off the app as he or she sees fit. Additionally, most of the apps are free or low cost to install and use.Google Apps Limitations
Admittedly, some of the Google Apps programs aren’t nearly as polished as Microsoft’s final products. For instance, if you’re trying to make neat numbered lines down the side of the page, you’ll have a lot of problems. You can make it happen (multiple columns inside a table is my suggestion), but it’s not going to look pretty and it won’t be easy to work with. In that case, Google Docs fails. Numbered pleadings aside, though, I haven’t found too many problems or tasks that I can’t accomplish in Drive. Sheets handles simple to complex spreadsheets, including equations.
Additionally, you can create simple forms to capture information into a Google Sheets document. And if you’re one who loves to play with PowerPoint presentations, then you’ll be pleased with Slides. True, you’re not going to find a lot of fancy animations, but Slides offers the simple task of creating and displaying a presentation. Plus, if you’re using a mobile device, you can easily display your presentation through the Drive app. If you’re someone who likes moving beyond Times New Roman font, Google also offers a number of different serif and sans serif fonts that will add variety to your writing or presentations.Microsoft Office 365
Microsoft Office 365 is Microsoft’s office system that provides many robust choices. Depending upon your choice of service, Office 365 combines online storage that is HIPAA-compliant (an advantage for law firms who represent business associates or who are business associates themselves) with an Exchange system for your emails, calendars and contacts that provides unlimited archive storage and offers five licenses of Microsoft Office 2013 (Outlook, OneNote, Word, Excel, etc.). It provides Office streamed through your browser (Office Web Apps) and Office on Demand, which allows you to stream the latest complete version of Office and use it as though it were installed on your desktop.Features and Benefits of Office 365
Microsoft advertises that you can work with anyone, anywhere, on any device because Office 365 is in the cloud. Office 365 can be accessed with any device, online or offline, and you can get to — and work with — the most up-to-date versions of the files and tools you need to get things done. With Office 365, the mobile experience across devices is more reliable and more secure, and whatever you need comes with you.
Office 365 is the same Office that many lawyers already know and use every day, with added features and benefits. Because Office 365 is powered by the cloud, applications and files can be accessed from virtually anywhere — P.C., Mac and select mobile devices — and they’re always up to date. The same goes for updates to features — you get them automatically. Here are some of the primary features of Office 365:
Documents can be created from any browser. Office Web Apps are touch-friendly applications that you can use to create, edit and share your Office files from any browser. You can even share and work on docs at the same time as others and avoid versioning hassles later. You have security, compliance and privacy in the cloud that you can trust. And Microsoft indicates that they are continually making improvements in Office 365 to earn and maintain your trust.Cost of the Plan Options
You can still purchase the MS Office suite as traditional downloaded software or pre-installed on a new computer. However, purchasing the Office suite without Office 365 is slightly more expensive and restricted to a single PC. Office 365 adds significant additional options with a myriad of plans available through the platform.
While Office 365 has versions for home use, the real strength for law firms would be the Office 365 business plans. With Office 365 Small Business, subscribers — up to 25 users — get access to the Office Web applications, including online file sharing, web conferencing, “business class” hosted email and a public website. At $5 per user per month, this option works well for small firms that already have current (i.e., Office 2010 or 2013) software suites and want to add cloud functionality.
In some cases, a firm may have good reasons not to move to the latest (2013) version of Office. To keep all the integrated functionality between Adobe Acrobat and Office, the versions must be kept in sync. For instance, the Save to PDF function for Outlook folders is broken by upgrading to Office 2013 and neglecting to upgrade Adobe Acrobat to version 11 as well. Some plug-ins and customization in Office 2010 may also be disabled by upgrading to Office 2013. However, Outlook 2007 users will find some of the functionality with the hosted email limited, so the best option is to use at least Outlook 2010. For firms still using Microsoft’s XP operating system, keep in mind that support ended in April 2014, and Office 2013 will not run on it. You will need Windows 7 or higher.
The next Office 365 subscription option to consider is the Small Business Premium plan, also for 25 or fewer users. This plan adds the installed desktop version of Microsoft Office for up to five Windows P.C.s or Macs per user, and it includes Word, Excel, PowerPoint, Outlook, OneNote, Publisher, Access and Lync. It also includes all the online functionality of the Small Business plan plus Office Mobile for iPhone and Android and site mailboxes for project-specific email and documents. At the time of this writing, this option costs $15 per user per month. The Small Business and Small Business Premium plans can be combined, so if some users in your office are lagging behind with older versions of the Office suite, or if some users need the multiple installations of the Office suite, the plans can be mixed and matched to meet the needs of the firm.
For larger firms or more extensive needs, there is Office 365 Midsize Business, which accommodates up to 300 users. This plan requires an annual commitment of $15 per user per month and adds Active Directory integration plus InfoPath to the Small Business Premium plan.1 The Office 365 Midsize Business plan cannot be combined with the Small Business plans. Both the Small Business Premium and Midsize Business plans offer free 30-day trials. For larger firms, other options provide combinations of IT infrastructure, support, distribution and deployment for Office suite upgrades.What about Macs and Mobile Devices?
Purchasers of the Office 365 Small Business Premium plan can choose to install Office 2011 for Mac running on Mac OS X 10.6 or later. The Office 365 Small Business plan will work with Outlook 2011 and 2008 for Mac. The collaboration features are all available through any browser; however, some functionality in the Team Site (SharePoint) online is visible only in Internet Explorer. In Windows, the IE Tab extension for Chrome or Firefox remedies that, but the IE Tab is not currently available for Chrome for Mac.
As for mobile devices, any mobile device with a high-speed cellular or Wi-Fi connection to the Internet and a good Web browser can connect to Office 365. Office Web Apps work on most major mobile operating systems (i.e., Android, iOS, BlackBerry or Windows Mobile) and allow users to view Excel, Word, PowerPoint and OneNote files. The Office 365 Small Business Premium plan provides Office Mobile for iPhones and Android so that users have the ability to view, edit and save Word, Excel and PowerPoint documents. Office Mobile is pre-installed on Windows phones and tablets. The Mobile OneNote app is available on Windows Phone 8, iPhone, iPad and Android phones. Hosted Exchange, which is part of the subscription plan for Small Business plans and higher, allows users to seamlessly view, search and create email, contacts and calendars on the phone’s email/contact/calendar apps, then synchronize them with the installed Outlook and the web-based Outlook Web Access.MS Hosted Exchange
Many law offices use Outlook. However, without the MS Exchange Server, the truly useful group features of the program are lost. The good news for small law firms and even solos is that they can take advantage of Exchange Server without all the expense and hassle by subscribing to Office 365 with MS Hosted Exchange. These users will receive the same benefits that the bigger firms get with onsite Microsoft Exchange servers.
In addition to group functions such as shared calendars and contacts, delegation and appointments, the Exchange Server functionality also provides Outlook to any user on the web via Outlook Web Access, plus features like ActiveSync (remote wipe, security policies, PIN lock for mobile devices), email protocols for other accounts, antispam and antivirus, bigger mailboxes, retention settings and permissions for end users, as well as lots of add-ons and integration with business applications.Security
Most organizations considering the cloud worry about security. However, Google is probably doing a much better job at protecting your data than if you handled the same tasks. Google is consistently backing up your information and provides strong encryption to connections. Using Google Apps means that you won’t have to worry about whether your system is backed up, or whether you’ll have relevant materials available.
Similarly, various mobile apps have access to the Google Apps API (Application Programming Interface), which means that they can store data into Drive for cross-platform device access. This will certainly boost the usefulness of Drive. If you are concerned about privacy, Google Apps for Business offers no ads by default, so Drive is a viable solution. In fact, many businesses and governments are opting to use Google Apps to handle their IT needs.
Office 365 offers the same user-level security options and Trust Center as the desktop version. Rights Management Service (RMS) supports encryption and lets you set permissions. Users will have a reasonable amount of security at their level. Offsite, files are saved in specialized data centers where security is a primary concern. In a nutshell, small to medium-sized businesses will have better security using Office 365 than they can (probably) afford on their own. Microsoft has several ways to keep your files safe in OneDrive. Files are not shared with others unless you save them in the Public folder or choose to share them. Multiple copies of each file are saved on different drives and servers. You can also add additional security information to your Microsoft account or two-step verification.
Moving to the cloud doesn’t mean you can’t ever come back down. Google Apps offers offline access to Drive. Simply activate offline viewing for any document, spreadsheet or presentation, any you’re free to work away. I like using offline access for making presentations from a mobile device and not having to worry about an Internet connection, a USB drive or some other equipment incompatibility.
With Office 365 Small Business or Premium, you download the desktop version of the Office application. One of the benefits of having the desktop version of Office is that you can work offline and have the confidence that the next time you connect to the Internet all your work will automatically sync, so you never have to worry about your documents being up to date.Considerations for Lawyers
Lawyers have used Microsoft Office, including Word, PowerPoint, Excel and Outlook, for many years. While there are plenty of choices for productivity suites, Microsoft’s new Office 365 adds some intriguing options, including online collaboration, subscription-based pricing, lightweight browser-based editing tools and online file storage. Solo and small firms may have the most to gain because Office 365 adds functionality formerly only found in server-based applications such as Microsoft Exchange, SharePoint and Lync. There are some major benefits to this new model. Added functionality is certainly one of them. Helping firms stay up to date with current versions of the MS Office suite is another. Unlike “pure cloud,” this hybrid approach of installed software and cloud collaboration/access addresses many law firms’ concerns about ownership versus access to firm data, backing up cloud-only applications and what happens in the case of a loss of access to the Internet.
With Office 365, Microsoft blends online services for communications, document creation, sharing, file storage, mobile access and teamwork with its desktop office suite. What remains to be seen is where this hybrid fits into the mix of other software and services commonly used by law offices. There has been a strong integration between the on-premise Exchange Server and Office suite components in the past with many legal-specific products. Similarly, newer legal software-as-a-service models have made use of available connections with products including Box, Dropbox and Evernote. How the new Office 365 fits in, and how fast that happens, will have an effect on its adoption by law firms.
For firms with no significant integration concerns, Office 365 makes sense. On the other hand, Google is doing a great job at providing the technology platform customers want for a price that makes sense. The simple interfaces coupled with classic designs and robust features means that you can work anywhere, anytime. In this next evolution of cloud computing — office productivity software — lawyers have some great options from which to choose.
In all instances prices may vary. ↩